What is Patient Consent?
When a patient attends a doctor or consultant the issue of consent is extremely important. A patient’s consent for medical treatment is only valid if it covers the relevant treatment, it is given voluntarily and the patient has capacity to do so. In addition a patient must be informed appropriately about the procedure before consenting. Without such consent any treatment that takes place could potentially be the tort of battery and trespass. In Clinical Negligence claims this could also involve an allegation that the GP or consultant was negligent as they failed to obtain the necessary consent.
Risks and Side Effects
Examples of this are where a patient gives consent but the patient was not adequately warned about the risks and side effects of treatment or told of any alternative treatments. In litigation the Bolam test was applied which meant that the doctor had to show they had conformed to the practice of a reasonable body of medical opinion. However, this approach has been criticised and in the recent case of Montgomery (2015) it was decided that consent should be a process of doctors and patients making decisions together. In addition patients should be informed of any ‘material risk’ and the test is whether, in the circumstances, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.
Breach of Duty
This test has led the Courts to decide what a prudent patient would have wanted to know. However, it must take into account the patient’s actual views and understanding because even if the objective ‘reasonable patient’ would not attach significance to a risk, if the doctor should know that a particular patient will attach significance then it would be a breach of duty to fail to disclose this.
There are exceptions to the prudent patient test. Which include:
- The patient does not want to know the risks.
- The doctor reasonably considers the disclosure of the risks would be seriously detrimental to the patient’s health.
- If it is necessary i.e. if the patient is unconscious and is unable to give consent.
This is an interesting topic in consent cases and the consensus is that future disputes about consent are likely to be fact sensitive. This means doctors have to ensure they keep clear documentary records about discussions with patients concerning consent.
But perhaps more importantly this new approach should stop the previous “I know best because I’m a Doctor” stance that patients have faced for many years in respect of medical treatment.
If you would like more information or to discuss any of the matters raised in this article please feel free to get in touch today
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