Claims for a Lack of Informed Consent
Patients must give their ‘informed consent’ to medical treatment – in basic terms, they should be given the information they need to understand a surgical procedure or treatment in order to decide whether they want it.
If informed consent is not obtained and a patient suffers an injury as a result of treatment that they would not have wanted had they had all of the relevant information in advance, then there may be a claim for medical negligence. These types of cases are on the rise although they can be difficult and the law in this area is complicated.
What is informed consent?
What constitutes informed consent can be contentious. A patient should be told, in a way that they can understand, the potential risks and benefits of treatment and what alternatives there are. However, this does not always mean that a doctor has to explain everything about a proposed treatment to a patient.
A landmark Supreme Court case in 2015 (Montgomery v Lanarkshire Health Board) set out that patients must be warned of all ‘material risks’ with a material risk being one that a reasonable person in the patient’s position would likely attach significance to or one that a doctor should be aware that the particular patient would attach significance to.
If a doctor does not obtain informed consent to treatment then this is considered to be a breach of their duty of care to their patient. Informed consent cannot be given by a person who lacks capacity.
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Frequently Asked Questions
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Can my attorney just do what they like with my money?
You can only make an LPA while you have mental capacity so it is a good idea to think about it early, even if you are young and healthy. The chances are that you won’t need it for a long time and maybe not at all. However, if something unexpected happens, for example if you are in an accident, then having an LPA in place will be one less thing for your loved ones to worry about.
If you make an LPA now and change your mind about who your attorneys should be, then you can always make a new one later.