It is usual for anyone who is about to undergo an operation to have given their consent to treatment. Consenting for surgery needs the input of both the surgeon and the patient and should be based on openness, trust and good communication. In this post, Anna Vroobel of Irwin Mitchell solicitors explains what it means to give consent, and what happens if you’re treated negligently.
What should the surgeon be discussing with me?
Consent for any treatment should be informed, meaning that you not only have to give permission for the treatment itself, but also before having the treatment you should have a good understanding of both the intended benefits and the possible risks involved.
Most decisions about medical care are not simple yes or no answers. There are choices to be made and sufficient information must be given to you to allow you to decide what to do. Your surgeon should advise you of all reasonable treatment options available in your situation, including different surgical procedures, alternative non-surgical treatment such as medication or physiotherapy and, importantly, the option of doing nothing. A surgeon may recommend a particular treatment option to you but ultimately it is your right as the patient to decide what happens to your body.
The Supreme Court has stated that it is not simply the surgeon’s choice to decide what information a patient should be told; the patient has a right to know of all material risks before deciding whether or not to consent to an operation. Material risks are those which would be significant for a reasonable person undergoing that surgery or risks which the doctor is aware would be particularly significant for that patient. The surgeon will need to look at your individual concerns as a patient and one size does not fit all.
As an example; a patient who has experienced lots of complications from surgery in the past may be more risk-averse than someone who had never had any surgical complications. In their particular situation, the patient may prefer to try less invasive treatment if that option is available. Their surgeon should take this into account when discussing how to proceed.
To be able to make an informed decision about your own treatment, it’s important that you engage with the advice given and ask any questions you have. With this in mind, the consent process should be a meaningful, clear and frank discussion between you and your surgeon and if you have any particular worries or concerns about the procedure, you should let your surgeon know.
If my surgery was carried out negligently, can I take any action?
In my experience, a very common misconception is that patients believe that when they sign the surgical consent form, they ‘sign away’ their rights to pursue an action in negligence if they suffer serious injury as a result of sub-standard surgical care. This simply is not the case.
It is a fact of surgery that, even with the highest levels of skill and care from the surgical team, unavoidable complications can arise. It is for this reason that complications are discussed with the patient before the surgery; so they know what the potential risks are. However, if the complication arises as a result of careless surgical care, it does not matter whether or not the complication was listed on the surgical consent form. All that matters is whether the injury resulted from sub-standard care and whether, with appropriate care, the injury would have been avoided.
To give one example, ‘injury to bladder or bowel’ is often listed as a surgical complication of keyhole surgery. Such injuries are an unfortunate risk of surgery and, of themselves, do not mean that the operation has been performed negligently. However, if the injury to the bladder or bowel has arisen as a result of sub-standard surgical care, the consent form does not prevent you from bringing an action for negligence.
If a medical negligence claim is ultimately successful, you would be entitled to compensation for your losses resulting from the mistakes made. This can provide important financial security at a very difficult time, fund rehabilitation, disability aids or support, and help you move forward with your life.
Thanks to Anna Vroobel of Irwin Mitchell for providing her insight into negligence and consent in surgical cases. If you or a loved one believes they have been victim to a sub-standard level of care or negligence please get in touch with Anna through the channels listed below.
Anna Vroobel, Solicitor, Irwin Mitchell
Direct telephone: 0207 400 8727
Email: [email protected]
