Where the patient is a minor or lacks capacity, informed consent must be provided by their parent, guardian, carer or next of kin.

Consent will be valid if it is given voluntarily by a person with capacity after receiving all necessary information. The information required for informed consent typically includes:

1. Details of the medical procedure
2. The risks and benefits associated with the medical procedure
3. The risks and benefits associated with the medical procedure
4. Dealing with any questions that the patient asks

The landmark Supreme Court decision in Montgomery v Lanarkshire Health Board established a duty of care requiring medical practitioners to warn patients about the material risks of the proposed medical procedure. The test of materiality is whether:

‘a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor should reasonably be aware that the particular patient would be likely to attach significance to it’

This means that, in order to secure informed consent to a medical procedure, the medical professional must provide the patient with specific advice on the risks as they relate to the patient, and they must explain any reasonable alternative treatments that could minimise the risk.

There are a limited number of circumstances where informed consent is not required. These include, for example, situations where the patient requires emergency lifesaving treatment and where an emergency arises during another procedure and it is not safe to wait and obtain consent.

If a patient suffers complications following a medical procedure for which informed consent was not given, they may be able to claim compensation. Further, even if a patient suffers a complication as a result of a known, consented risk, it may still be possible to establish negligence in the particular technique adopted in completing the medical procedure and this may lead to a claim for compensation.

Claims alleging a lack of informed consent are complicated. With the objective materiality test from Montgomery, it is necessary to carefully consider each individual case on its facts. The specialist medical negligence solicitors at Curtis Solicitors are experienced in analysing lack of informed consent cases and have a track record of success in securing compensation for clients who have suffered avoidable harm.

If you wish to discuss a potential clinical negligence claim with our specialist solicitors you can email us, use our online enquiry form, or call us for free on 0800 008 7450.