February 6, 2023
Every medical professional wants to offer their patients the best standard of care. The sad truth, however, is that practically every medical treatment carries its own risks. Informed consent claims arise when a treatment, procedure, or surgery leaves a patient in a worse-off situation because of the inherent risk of treatment.
In these types of claims, the accusation is not that the medical professional was negligent in executing the procedure or treatment - but rather that the patient was not advised of the risks correctly as if they were they may have opted to not proceed with the treatment.
Are consent forms enough?
When an informed consent claim is raised (where a patient alleges failure to obtain informed consent), medical professionals usually rely on a completed consent form for evidence purposes. The trouble is that consent forms, particularly those used in private hospitals, may be pages long and go into vast detail about every possible risk. Therefore, the question is: Does the patient actually understand the risks of treatment?
In the High Court decision of Re T, Lord Donaldson MR commented:
“It is clear that such forms are designed primarily to protect the hospital from legal action. They will be wholly ineffective for this purpose if the patient is incapable of understanding them, they are not explained to him and there is no good evidence (apart from the patient’s signature) that he had that understanding and fully appreciated the significance of signing it”.
Similarly, there are other types of consent forms that are brief and plainly stipulate that the patient has been alerted of possible risks. Of course, where an informed consent claim arises, these forms are worthless as proof of consent since a patient can claim that consenting did not occur.
How do you effectively ask for consent?
To be able to prove adequate consent and be comfortable that your patients fully understand the risks involved with the treatment or procedure that they will undergo, we recommend:
1) Provide adequate time for informed consent:
- Depending on the complexity of the treatment or procedure, as a medical professional, you need to ensure that the patient fully understands the information and risks explained.
- Consider lower patient volumes (particularly in private practice) to allow for better consenting.
- Avoid consenting at the last minute.
2) Ensure that you are documenting effectively:
- Document the consent discussion and add it to medical records along with a follow-up letter to the patient's GP.
- Explain the risks and benefits of the treatment or procedure in detail.
- Propose alternative procedures and their associated risks and benefits.
- Risks and benefits of no treatment.
- The patient’s decision.
3) Treat consenting as an ongoing process:
- Constant communication is primordial to ensure patients feel comfortable asking further questions.
At Medicas, we use our clinical expertise to provide clients with clear, concise, and supportive information to help them make the best decisions in clinical practice. Supported by our clinical and legal panels, we aim to educate and raise awareness within clinical communities.
As a specialist Lloyds broker focusing on healthcare, we provide clients with bespoke insurances in Medical Malpractice, Medical Liabilities, and Life-Sciences. Our risk-managed led approach ensures our clients benefit from risk-mitigating relationships and strategies.
To learn more about how Medicas can help you with your Indemnity or Risk management, get in touch with Dr. Edwin Rajadurai or our specialist team.
NB: This article is not intended to replace any legal advice or responsibilities that you may have. This article is posted for educational purposes only.