Lack of consent negligence
compensation claims

If a hospital negligence injury has set you back, we'll help you move forward

If you have undergone a medical procedure without proper informed consent, leading to unexpected complications, injury or harm, you may have grounds for a lack of consent injury claim.

If your life, or the life of a loved one, has been affected by medical negligence, we can help. If your injuries were caused by the negligence of a doctor, nurse, midwife or other medical professional, you may be entitled to claim compensation.

You can make a No Win, No Fee compensation claim with the help and support of a specialist clinical negligence solicitor.

What is "lack of consent"?

Hospital lack of consent is where a medical procedure is carried out on a patient without obtaining their "informed consent".

Informed consent can only exist when the patient has been fully informed about the details of the procedure, including its risks, benefits, and alternatives, and the patient has explicitly agreed to proceed.

A lack of consent exists if the patient:

• has not been given all necessary information they need to make an informed decision.
• has been coerced or put under undue pressure.
• lacks the mental capacity to understand and make decisions about their treatment

Consent must also be specific to the procedure being performed and the hospital cannot infer consent for all treatments. Patients who are scheduled to have a pre-planned operation will be asked to sign a form consenting to the procedure.

Obtaining consent is a legal and ethical requirement. Failure to obtain proper informed consent can lead to legal claims of medical negligence.

If you gave 'uninformed' consent i.e. you consented without being fully informed of the risks, you also have a claim.

What risks must a patient be told about?

A doctor must tell the patient about:

• the procedure
• the frequent risks
• rarer risks, if they are serious when they do occur
• any risks the patient specifically asks about
• alternative treatment or therapy, including the option to do nothing.

To clarify, the doctor does not have to mention all the risks associated with a procedure. The patient is entitled to receive the information that a reasonable person in the patient's position would wish to know in order to make an informed decision. The doctor generally would not be liable if they failed to mention unusual or trivial risks.

With over 13,000 clinical negligence claims a year, you're not alone

Lack of consent claims have increase sharply.

In 2020, Queen Mary University of London published research that showed a fourfold increase in claims relating to consent since March 2015. Most alarmingly, the number of other clinical negligence cases has remained steady. (source: qmul.ac.uk/)

If you are looking for information on how the NHS handles consent, visit: consent to treatment (nhs.uk).

See also:

Making a clinical negligence compensation claim

Do I qualify for lack of consent negligence compensation?

Medical negligence claims differ from personal injury claims. To make a successful lack of consent negligence claim your solicitor will need to establish:

• the care provided to you was below the acceptable standard, and
• this inadequate care resulted in your harm.

Use our injury claim calculator to find out if you can claim. Alternatively, you can speak to a claims advisor on 0800 376 1001 and find out if you have a claim in minutes.

How long after a lack of consent incident do I have to start a claim?

For a lack of consent negligence claim, you usually have 3 years to make a claim from the date you became aware that the harm you suffered was caused by substandard treatment (date of knowledge).

The 3 year limitation period does not apply to minors (under 18s). A parent, guardian or litigation friend can start a claim on a child's behalf up to their 18th birthday and the child has until their 21st birthday to claim for themselves.

What if your injury was diagnosed months or years after treatment?

You may not be immediately aware of your injury. In some cases, months and even years can pass before symptoms appear.

The law allows you to make a medical negligence claim up to three years after the 'date of knowledge' (when you first learned of the injury).

It is recommended that you start a claim as soon as possible, as medical negligence cases can be complex. Starting your claim sooner will give your solicitor more time to gather medical evidence, assess the extent of your injury and to negotiate interim payments and your final compensation amount.

How much compensation can I claim for a lack of consent injury?

The amount of money you could claim for your injury will depend on:

• the seriousness of your injury, and
• any financial losses or costs you have incurred.

At the start of your claim, your solicitor will consider the many ways your injuries have affected your life. Your solicitor will take these considerations into account to calculate the correct compensation award.

General damages

General damages are awarded for pain, suffering and loss of amenity (PSLA).

Awards for general damages are set by the Judicial College (judiciary.uk) and published in their guidelines for personal injury awards.

How is compensation calculated if I have multiple injuries?

Special damages

Special damages is compensation awarded to cover any financial losses and expenses you incur as a result of your injury or negligent medical treatment. These damages aim to put you back in the financial position you would have been in, had your injury not occurred.

Special damages will also cover your medical treatment expenses, that might include corrective treatment and psychological support.

Read more:

A complete list of recoverable losses in a personal injury claim

Examples of lack of consent

Lack of consent medical negligence claims typically arise when there is a complication during surgery and:

• The patient has not consented to the surgery unless the treatment was given in an emergency to save the person's life
• The consent form failed to specify the particular complication as a reasonably foreseeable risk of the surgery
• There was a higher risk of that complication occurring than was specified on the consent form. For example, the doctor may have told the patient that there was only a 0.5 percent chance of bleeding after the surgery, when in fact the risk was 5 percent
• The patient received a different procedure to the one they consented to. For example, the patient received invasive surgery when they consented only to keyhole surgery.

Proving a lack of consent medical negligence claim

Allowing a pre-planned operation to go ahead without a signed consent form would be a gross oversight on the part of the medical team. The patient almost always will have a lack of consent medical negligence claim if they did not consent at all to an operation and injury arose as a result.

Where the patient has given some form of consent, establishing liability can be complicated. To bring a successful claim, the injury lawyer must show that:

• The surgeon did not explain the risks and benefits of the proposed treatment and of alternative treatments
• With full information, the patient would not have consented to the treatment
• The treatment caused the patient's injuries.

For major surgery, it is usual for the consent form to list the risks that have been discussed with the patient. However, this is not mandatory. Where liability is not admitted, the injury lawyer will gather evidence such as medical records and witness statements to show that the patient was not told about the complication that occurred.

Clinical negligence claims

Lack of consent negligence is usually categorised as clinical negligence. Click on the icon below for more information.

Medical negligence Other accidents

Author:
Howard Willis, Personal injury solicitor

About the author

Howard Willis qualified as a solicitor in 1984 and has specialised in personal injury for over 25 years. He is a member of the Association of Personal Injury Lawyers (APIL) and is a recognised Law Society Personal Injury Panel expert.