When we seek medical treatment, we expect healthcare professionals to give us the information we need to make informed decisions about our care. Whether it is surgery, medication, childbirth or a diagnostic procedure, understanding the potential risks is an important part of that process.
But what happens when those risks are not properly explained? For many patients, the first indication that something could go wrong comes only after a complication has occurred, leaving them wondering whether they would have made a different decision had they been given all the relevant information.
Patients have a legal right to be informed about the material risks of treatment, as well as any reasonable alternatives. Where that information has not been provided, and harm has followed, there may be grounds for a medical negligence claim.
What is informed consent?
Informed consent is the process by which a patient agrees to treatment after receiving sufficient information about what it involves.
Before carrying out a procedure or recommending a course of treatment, healthcare professionals should explain:
- The nature and purpose of the treatment
- The potential benefits
- Any material risks or complications
- Reasonable alternative treatments
- The likely outcome of choosing no treatment at all
Informed consent is about much more than signing a form before an operation or procedure. It is intended to be a meaningful discussion that allows you to understand your options, ask questions and make a decision that is right for you.
Every patient has different priorities and concerns. A risk that may seem acceptable to one person could be highly significant to another. This is why healthcare professionals are expected to tailor discussions about risks and treatment options to the individual circumstances of each patient.
While the principle of informed consent may seem straightforward, the legal duty on healthcare professionals to provide patients with this information has not always been interpreted in the same way. A landmark Supreme Court case fundamentally changed the approach to consent in the UK and continues to shape how these claims are assessed today.
What is the Montgomery Test and why does it matter?
One of the most important cases in this area of law is Montgomery v Lanarkshire Health Board [2015], a landmark Supreme Court decision that significantly changed the way informed consent is assessed.
The case involved Nadine Montgomery, a woman with diabetes who was expecting her first child. Medical evidence showed that diabetic mothers faced an increased risk of shoulder dystocia during vaginal delivery, a complication where a baby’s shoulders become stuck during birth. Mrs Montgomery was not informed of this risk, despite expressing concerns about the delivery.
During childbirth, shoulder dystocia occurred, and her son suffered severe injuries, including cerebral palsy. Mrs Montgomery argued that had she been informed of the risks associated with a vaginal delivery, she would have opted for a caesarean section.
The Supreme Court found in her favour and held that doctors must take reasonable care to ensure patients are aware of any material risks involved in a recommended treatment, as well as any reasonable alternative options.
A material risk is generally one that a reasonable person in the patient’s position would likely consider important when deciding whether to proceed. A risk may also be material if the healthcare professional knows, or ought reasonably to know, that a particular patient would attach significance to it.
The Montgomery decision marked a shift away from the traditional paternalistic approach to medicine, where doctors largely decided what information should be disclosed. Instead, it placed patient autonomy and informed decision-making at the heart of the consent process.
For patients considering whether they may have a claim, Montgomery remains the key legal test. The question is no longer simply whether a doctor acted in accordance with accepted medical practice, but whether the patient was provided with the information they needed to make a genuinely informed choice about their treatment.
Although the legal principles established in Montgomery are clear, failures in the consent process can arise in many different healthcare settings. From surgery and medication to cancer treatment and childbirth, the consequences of not being fully informed can have a profound impact on patients and their families.
In many cases, the treatment itself may have been carried out to an acceptable standard. The issue is often whether the patient was given enough information beforehand to make an informed decision about whether to proceed. Understanding how these failures can arise in practice helps illustrate the types of circumstances in which a lack of informed consent may lead to a legal claim.
What does lack of informed consent look like in practice?
A failure to obtain informed consent can arise across many different areas of medical treatment. While every case turns on its own facts, the common thread is that the patient was not given the information they needed to make an informed decision about their care.
Surgical negligence claims
Imagine a patient undergoing hip replacement surgery who is not told about a significant risk of prosthetic joint infection, which could require further surgery and prolonged treatment.
The operation is carried out competently, but the very complication that was never discussed occurs.
In these circumstances, the claim may not be about how the surgery was performed. Instead, it may focus on whether the patient was deprived of the opportunity to make an informed choice. From a legal perspective, these cases often centre on the consent process rather than the surgery itself. Even where an operation is performed competently, a claim may arise if a material risk was not discussed and the patient can show they would have chosen a different course of action had they been properly informed.
Delayed diagnosis and treatment claims
Consent issues can also arise when treatment options are not fully explained following a diagnosis.
For example, a cancer patient may be advised to undergo a particular course of treatment without being informed of other reasonable alternatives, each carrying different risks, side effects and outcomes.
If the patient later suffers significant complications and can demonstrate they would have chosen a different treatment pathway had they received adequate information, there may be grounds for a claim based on lack of informed consent.
In these circumstances, the legal issue is often whether the patient was given enough information to make an informed choice between the available treatment options. A claim may be possible if a reasonable alternative was not discussed and the patient would likely have chosen a different path had they understood the risks and outcomes involved.
Medication and prescription error claims
Patients are often required to weigh up the benefits of medication against its risks.
Consider a patient prescribed medication with a known risk of serious cardiovascular complications. If those risks are not explained and the patient subsequently suffers a heart attack or other serious injury, questions may arise as to whether valid consent was ever obtained.
From a legal perspective, the key question is whether the risk was material and should have been disclosed before treatment began. If a patient suffers a serious side effect that was not explained, a claim may arise where they can demonstrate that they would have declined or reconsidered the medication had they been properly warned.
Does a complication automatically mean you can claim?
The simple answer is no. All medical treatment carries some level of risk, and complications can occur even when healthcare professionals provide care to an appropriate standard.
Experiencing an unexpected outcome does not automatically mean negligence has occurred. Unfortunately, some complications happen despite everyone involved doing exactly what they should have done.
However, a claim may be possible where a patient was not informed about a significant risk, where they would have made a different decision had they known about that risk, and where that risk subsequently occurred and caused harm.
The focus is not simply on the outcome itself. It is also about whether the patient was given the information they needed to make an informed choice.
How does a lack of informed consent become a legal claim?
When investigating a claim involving informed consent, it is important to understand exactly what information was provided before treatment took place.
Medical records, consent forms and correspondence relating to the treatment may all help establish what discussions took place. Independent medical experts may also be instructed to review the care provided and assess whether the consent process met the expected standard.
It is not enough to show that certain information was not provided. A patient must also demonstrate that the missing information would have influenced their decision-making. In many cases, the key question is whether they would have chosen a different course of action had they been properly informed.
Because these cases are often highly fact-specific, obtaining specialist legal advice can help provide clarity about whether a claim may be possible.
The growing importance of patient choice
Modern healthcare increasingly recognises that patients should play an active role in decisions about their treatment.
People have different lifestyles, responsibilities, beliefs and attitudes towards risk. A potential complication that one person considers manageable may have a significant impact on someone else’s career, family life or future plans.
This is why open and honest communication is so important. Patients should be given the opportunity to understand the risks they face and consider how those risks fit into their own circumstances.
The law reflects this shift towards patient-centred care by recognising that informed consent is not simply an administrative process. It is an essential part of respecting a person’s right to make decisions about their own body and health.
What should I do if I think I wasn’t properly informed?
If you believe you were not given enough information about the risks of treatment, it is important not to assume that your concerns are unfounded.
Making a note of what you remember from discussions with healthcare professionals can be helpful, particularly if you feel important information was not explained before treatment took place. You may also wish to obtain copies of your medical records, which can provide insight into what was documented about the consent process.
Seeking legal advice can help you understand whether there are grounds for a claim and whether further investigation is needed. One of our experienced medical negligence solicitors can review the circumstances of your treatment and explain the options available to you.
How long do I have to make a medical negligence claim?
In most cases, medical negligence claims must be started within three years of the date the negligence occurred, or from the date you first became aware that your injury may have been caused by negligent treatment.
However, there are some exceptions to this rule. Different time limits can apply for children and for individuals who lack the mental capacity to manage their own affairs.
Because limitation periods can be complex, it is generally advisable to seek legal advice as soon as possible if you have concerns about the treatment you received.
Common misconceptions about informed consent
Many people assume that signing a consent form means they cannot question the treatment they received later. This is not necessarily the case. A signed form is only one part of the consent process.
The key issue is whether you were given sufficient information to make an informed decision. If significant risks were not discussed or explained properly, the fact that a form was signed does not automatically prevent a claim.
It is also important to remember that a successful claim is not about blaming healthcare professionals for every complication. Instead, it is about understanding whether you were given the information you needed to make an informed choice about your treatment.
Can I sue if I wasn’t aware of the risks?
As healthcare continues to move towards a more patient-centred model, informed consent has become about far more than obtaining a signature on a form. It is about ensuring individuals have the information they need to weigh up risks, consider alternatives and make choices that align with their own priorities and circumstances.
If you are asking yourself, “I wasn’t aware of the risks. Can I sue?”, the answer will depend on the specific facts of your case. However, where important information was not disclosed, a different decision would have been made, and harm resulted, there may be grounds to pursue a claim.
Understanding whether informed consent was properly obtained often requires a detailed review of the medical records and the discussions that took place before treatment. Seeking specialist legal advice can help you understand your rights, assess whether informed consent was properly obtained and determine whether you may be entitled to pursue a claim.
