Newsletter November 2022 – CFC

Are Consent Claims Defensible in 2022?

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Mr Chris Shakallis

Specialty Claims Adjuster

The allegation that a surgeon has failed to obtain informed consent is a now feature of virtually every clinical negligence claim we see at CFC. Defendant surgeons across the UK often comment that the 2015 Montgomery judgment seems to have handed claimants (and their lawyers) victory in clinical negligence claims on a platter. 

There can be no doubt that consent claims are notoriously difficult to defend, and this often results in advice to defendants that settlement, not defence, is the prudent way to bring these cases to a close. Seven years on from Montgomery, is it true that alleging that a surgeon failed to properly obtain your consent is a sure-fire way to secure compensation?

There is scarcely a need to recap the Court’s position on consent; every surgeon in the UK should be aware of the obligation placed on them by Montgomery. Where previously clinicians were entitled to decide whether a patient should be informed of a particular risk, they must now take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative treatments.

The test of whether a risk is “material” is patient-sensitive. Put simply, a twenty-year-old athlete is unlikely to attach the same significance to certain risks as a wheelchair-bound octogenarian. 

What does the GMC Say?

  • All information should be made accessible to the patient. Include the “no treatment” option;
  • Respect the patient’s decision, even if it appears irrational;
  • The patient must be provided with the information they need and want in order to make a decision;
  • Involve others in decision making if the patient requests this;
  • Consent can be written, oral or implied, but always record it.

Exceptions to the rule of consent

  • The therapeutic exception – a clinician can withhold information from a patient if it is reasonably considered that it would be seriously detrimental to the patient’s health;
  • A patient has the right to choose not to be told about the risks associated with a treatment plan;
  • The clinician is excused from providing information in circumstances of necessity where the patient requires urgent/emergency treatment and is unconscious or otherwise unable to make a decision;

What is needed to defend a consent claim?

Despite what many clinicians believe, it is in fact possible to robustly defend consent claims. When assessing the defensibility of a claim, the Claims Adjusters at CFC and the lawyers we instruct would hope to find the following in the clinical records: 

  • A signed and dated consent form that makes explicit reference to each individual risk that is the subject of the claim;
  • Detailed discussions on risks and alternative treatment options recorded clearly in the notes by the surgeon who performed the operation, and ideally reiterated in clinic letters;
  • Evidence that the patient was afforded sufficient time between the discussion about risks and the surgery (usually at least two weeks);
  • Copies of relevant literature provided to the patient ahead of surgery, in an accessible format and in easy-to-understand language;
  • If applicable, evidence in the notes that the surgeon has considered any language barriers or the patient’s capacity to make informed decisions.

Since the test for whether a risk is ‘material’ is subjective, the advantage lies with the claimant. It should come as no surprise that when a claim worth potentially hundreds of thousands of pounds hangs in the balance, patients are more than happy to testify that they would never have undergone the surgery if that particular risk had been explained to them beforehand.

However, even if a claimant succeeds in proving that they were not warned of a material risk, they still have to clear the hurdle of proving causation. In other words, they still need to prove that being warned of the risk would have made a difference to their decision to proceed with surgery. To put it another way, if no avoidable harm occurred as a result of the failure to warn of a particular risk, no damages will be payable. In 2019, the Court of Appeal upheld a trial judge’s findings that, despite the proven failure to warn of a material risk, “on the balance of probabilities…even if [the patient] had been in a position to give informed consent, exactly the same procedure would have been undertaken.”

Final Thoughts

  • Consent is an ongoing process; an open dialogue between patient and surgeon. No two patients are the same, so it follows that no two consent processes are identical either.
  • The test for whether a risk is ‘material’ cannot be reduced to percentages. It is no longer possible to excuse the failure to warn of a particular risk by reference to how uncommon it is. 
  • “If it’s not recorded in the notes, it didn’t happen” is often repeated but not strictly accurate. However, the absence of notes detailing the discussions about risks and benefits of treatment is usually fatal to the defence of a consent claim.