Medical Malpractice Explained - Why You Should Obtain Informed Consent

Medical Malpractice Explained - Why You Should Obtain Informed Consent

It may sound obvious, but before starting any treatment on patients, medical professionals need to obtain consent.  

Failure to secure AND document the necessary patient consent accurately can leave you open to challenge, and a costly Professional Indemnity/Medical Malpractice Insurance claim.

Consent is required for any treatment, from basic blood tests to cosmetic surgery or a major medical operation.

It allows a patient to make an informed decision about the treatment that they are about to undergo and to become knowledgeable about any risks that could occur.

While governing regulations and case law may differ slightly from country to country, the principle of consent is essentially the same throughout the United Kingdom.

What Type Of Problems Can Arise?

A variety of issues can arise with consent, and patients may be able to bring claims for compensation if they are injured.

Patients could claim that they did not receive sufficient information on which to give consent, or that they were not capable of giving consent, or even simply that they did not give any consent at all.

Make sure that you properly obtain consent from each of your patients, as compensation claims can reach hundreds of thousands of pounds.

Often a Doctor or Medical Consultant will believe that no professional negligence exists, but any problems or missing consent forms can make claims difficult for your Insurer to defend.

For consent to be valid, it must:

#1  Be Made Voluntarily

The patient needs to consent voluntarily, meaning that they must decide freely and without any pressure from friends, family or the medical professional.

It is best practice to seek consent well in advance of the treatment or procedure, to give patients time to consider all their options.

#2 With Sufficient Information

Made with sufficient information. Patients need to receive the information necessary to make an informed decision about their treatments.

This should be full disclosure of the risks and benefits of the proposed treatment, the probability of success and likely outcome, recovery periods, the consequences of not undergoing the treatment, and anything material that would help a patient make his or her decision.

The information should be explained in such a way so the patient can understand it. Do not withhold any information simply because you think it would unnerve or scare the patient.

#3 Made with Capacity

The patient must be capable, meaning that they can understand the information given and utilise the information to make an informed decision. The patient must also be able to communicate their decision.

All adults are presumed to have sufficient capacity unless there is significant evidence to suggest otherwise. Determining capacity includes assessing the patient’s ability to understand, retain and evaluate information.

Capacity should be assessed on a case-by-case basis, as it can change throughout treatment. For example, some patients may have the capacity to give consent for minor treatment options while not having the capacity to give consent for major treatments.

Capacity can also be temporarily affected by shock, panic, fatigue, medication and other circumstances.

If a patient with capacity makes a voluntary, informed decision to refuse treatment, that decision must be respected, even if the refusal of treatment has extremely serious consequences or the decision seems irrational.

The person making it must have sufficient capacity. Determining whether you have obtained valid consent will vary based on patient-specific circumstances.

Consent should be obtained by the medical professional directly responsible for the patient. It can be obtained in several different ways, including:

  • Verbally
  • Non-verbally, through actions such as raising a hand or nodding their head
  • In writing, through a signed consent form

There are minimal circumstances where the law requires explicit written consent, so verbal consent is typically just as valid as written consent. However, it may be best practice to obtain written consent.

Although completed written consent forms provide evidence that consent was obtained, they do not prove that the consent given was valid.

You will still need to prove the consent was voluntary and was given with sufficient information and capacity.

Therefore, on written consent forms, you should also include specific information that the patient was given to make an informed decision, including any questions and concerns raised by the patient.

There are several circumstances where consent is not required, even if the patient is capable of giving consent.

You should check your country’s legislation to verify requirements. Exceptions to requiring consent include:

#1 Emergency Treatment.

Consent may be implied if a patient is physically or mentally incapacitated and needs emergency treatment to save his or her life.

The treatment will be carried out without consent, and the reasons for the treatment will be fully explained afterwards.

#2 Mental Health Conditions.

Patients with certain mental health conditions, such as dementia and bipolar disorder, could be given treatment without their consent.

If a patient cannot give consent, medical professionals need to look at the patient’s best interests.

This includes consulting the patient’s family, determining whether there are any advance decisions, involving the patient as much as possible, and deciding whether treatment needs are immediate or can be delayed.

#3 Additional Procedures

If a patient undergoes treatment, such as an operation, and it becomes apparent that they would benefit from an additional procedure that was not expressed in the original scope of consent, it may be permissible to conduct the additional procedure.

It may be justified if it is considered dangerous to delay the procedure, and it is in the patient’s best interest. There must be an apparent medical reason to conduct the additional procedure, not because the timing of the additional procedure was convenient.

#4 Special Circumstances.

There may also be other exceptions for obtaining consent, such as risks to public health, self-harm and attempted suicide.

As a medical professional, it is your legal and ethical duty to obtain valid consent before starting any medical treatments.

This principle reflects the patient’s right to determine what happens to his or her body. If valid consent is not obtained, you could be liable for both legal actions and actions by your regulatory or professional bodies.

With proper consent procedures in place and adequate medical malpractice cover, you can focus on your patients and safeguard your business and reputation.

Medical Negligence Insurance Review

Insync Insurance specialises in all areas of Professional Indemnity Insurance for the medical profession, including Nurses and Private clinics.  

You can request a medical malpractice quotation online, alternatively, why not book a free review with one of our expert Gurus who can help you find the right level of cover at the right price.