Following the judgment in Montgomery v Lanarkshire Health Board, the law on informed consent for medical treatment has changed.
As an adult, deemed capable of making your own decisions, you must freely give consent prior to any medical treatment or care. Consent must be expressly given, without any undue influence, and is only deemed valid if the patient has been afforded sufficient information about the material risks of the treatment to make an informed and independent decision.
This principle ensures that an individual has the right to decide what happens to their own bodies.
The onus is on treating clinicians to ensure that patients are fully informed on the risks of the procedure or course of treatment, the advantages, and the disadvantages. The clinician should also make the patient aware of any alternative treatment options available. The treating clinician also has a duty to inform the patient of any rare but potentially serious complications which may arise as a result of the course of treatment or surgical procedure.
It is only ever deemed appropriate for a treating clinician to withhold information if they believe that giving the information would subject the patient to serious harm.
If a treating clinician or health and social care professional violates this fundamental legal principle, they may be liable to legal action from both the patient and their regulatory body. It is important to also note that employers in the health and social care sector may also be vicariously liable for the actions of their employees.
As a patient, it is both normal and natural to have worries and concerns prior to undergoing medical treatment. If you have any concerns, here are a list of questions you may want to ask before consenting to treatment:-
Why is this course of treatment necessary?
What are the associated risks with such treatment?
What is the success rate of the treatment?
Will I be able to return to work?
What is the average recovery period?
Will such treatment affect me in any other way?
What will happen in the case of an emergency?
Staff have a responsibility to listen to you voice your concerns and answer your questions as best they can.
What is informed consent and why is it important?
Informed consent is a process of communication between you and your health care provider that often leads to agreement or permission for care, treatment, or services. Every patient has the right to get information and ask questions before procedures and treatments.
You should understand the following prior to giving consent: –
What is happening in terms of treatment
The options available
The associated risks
Potential effects on work
Potential effects on life
Will my claim be successful?
For any uninformed consent claim in Northern Ireland to be successful, two tests must be satisfied: Breach of Duty and Causation:
Breach of Duty
To establish breach of duty, there must have been treatment or care provided by a medical practitioner which was ‘negligent,’ or otherwise below the reasonable standard expected for a medical professional.
To satisfy the test for causation, it must be proven that the harm you have endured was a direct result of the medical practitioner’s breach of duty.
If the tests for breach of duty and causation are both satisfied it is likely that the injured party will be eligible to make a compensation claim.
Is there anything else I should know about making a claim?
Statute of Limitations
If you believe that you have suffered injury due to medical mistake or malpractice and are considering bringing a medical negligence claim, it is important that you seek legal advice as soon as possible.
In Northern Ireland, for adults, proceedings must be issued within 3 years from the date of your injury, or from your date of knowledge (that is, when you became aware of the injury suffered).
If the injured party is a minor (under 18 years old), this three-year limit begins on the date of their 18th birthday.
What are the Initial Steps of making a claim?
When you get in touch with our friendly and experienced medical negligence solicitors, you will need to explain the circumstances surrounding your injury and when it occurred.
The next steps will involve making requests and obtaining your medical records. Once we have reviewed these and have fully assessed the merits of the case, with your consent, we will instruct an independent medical expert to provide a report.
Once the report has been received, your solicitor will be able to advise you on the next steps of your claim, such as initiating court proceedings.
How Much Compensation Will I get?
If your claim is successful, the amount of compensation you would receive is dependent on a variety of factors.
The Court usually take the following factors into consideration:
The severity and type of injury sustained;
Costs of ongoing medical treatment and care;
Loss of earnings, including the loss of future earnings such as pension losses;
Contacting Our Expert Medical Negligence Solicitors (Dungannon & Belfast)
Our expert medical negligence team understand the psychological, emotional, and physical impact that A&E medical injuries can have on injured patients.
In appointing PA Duffy & Co Solicitors, you are guaranteed to receive top-quality legal services and support throughout the duration of your claim.
If you are considering bringing a claim for medical negligence compensation, please do not hesitate to contact us or make an enquiry online.