01 Jun Consenting to Medical Treatment
I signed a Consent Form – Can I still bring a Medical Claim?
Consent
Many patients believe that they cannot bring a claim from a medical accident if they signed a consent form. A medical consent form warns of possible risks, but it doesn’t absolve the hospital / doctor of blame for all errors if something when wrong with your procedure. It is not a ‘get out of jail free’ card.
A medical injury may have occurred because of substandard care and in those circumstances signing a consent form does not mean you cannot claim compensation. You consented to reasonable care, and not substandard.
You have not consented to negligent treatment – the procedure or operation must still be carried out to an acceptable standard. A mistake that should not have been made if the treating medical practitioner surgeon had exercised reasonable skill and care means you may still be able to bring a claim.
Informed Consent
The other matter is whether you gave informed consent. Informed consent is consent given by a patient when they have been advised of all the risks. A patient must be advised on the likelihood of the risk, for example a patient may have been informed that the risk was a chance in a million when in fact the risk was much higher. A patient should also be advised of all alternative treatments that carry less risk. A patient must be given enough information to make an informed decision.
The factors to consider in informed consent was whether you would have gone ahead with the treatment if you had been properly advised and whether you would have avoided injury if you did not receive the treatment.
Necessary Information
Your medical attendant must provide you with sufficient information for you to be in a position to decide what is best for you. Discussion around all the issues about a proposed investigation or treatment is an integral part of your care. Discussions about the options available to you may take place over several consultations. Signing a consent form does not mean that you have properly consented to medical treatment if there has not been sufficient advice and information provided to you that would be material to your decision. You should be made fully aware of the following:
- Details of your diagnosis and prognosis and the likely prognosis if your condition is left untreated
- Any uncertainties about the diagnosis, including options for further investigation prior to treatment
- Options for treatment or management of your condition, including the option not to treat
- The purpose of a proposed investigation or treatment, details of the procedure or therapies involved, including methods of pain relief, preparation for the procedure, what you might experience during and after the procedure, including common and serious side effects
- For each option of treatment available to you, explanations of the likely benefits and probability of success; discussion of any serious or frequently occurring risks and any lifestyle changes which may be caused or necessitated by the treatment.
- If a proposed treatment is experimental you should be made fully aware of this.
Voluntariness
Patients should not feel that they are being pushed into treatment that they would prefer not to have. Some patients find it difficult to say no, or to challenge a doctor’s opinion that this is the best treatment. A patient is fully entitled to request a second opinion.
Time to Think
A patient should be given adequate time to consider the treatment before giving consent. It is not acceptable to be asked to sign a consent form on the way to theatre. For elective procedures, consent is often taken in the outpatient department weeks or even sometimes months prior to surgery. Further questions may occur to the patient, or they may have doubts about going ahead with the surgery or procedure, so they should be given adequate time to consider. If treatment is not urgent, patients should be given plenty of time to think about their options before they consent to treatment
Overview
- Consent is needed for all clinical examinations, investigations and treatment.
- Adult patients who can decide for themselves need sufficient information and, whenever possible, time to make a choice
- Patients should be given all the information material to their decision before deciding which option to choose
- Patients should not be pressurised into making a decision but should be made aware of any potential harm that may come from delay;
- Signed consent forms alone not proof that the patient was valid
Carlagh Casey, Medical Negligence Solicitor