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What is informed consent for surgery?

Posted by : Michael Shiers

Can a patient claim damages against a hospital for failure to obtain informed consent to an operation?

duty of careIn 2015 there was a fundamental change in the law concerning the doctor/patient relationship.   A case in the Supreme Court decided that a doctor should give all material relevant information to the patient including available options in relation to treatment so that the doctor and patient can come to a joint decision on the best course of treatment.  It was no longer appropriate for the doctor to make the decision himself believing it to be in the patient’s best interests.

A recent Court of Appeal decision has explored whether failure to obtain proper consent in this way gives rise to an additional claim for compensation.  The case concerned Mr William Ewan who died back in 2007 following an operation for heart surgery.

It was conceded that the surgeon had not properly explained everything to Mr Ewan and that if the surgeon had explained everything then Mr Ewan would not have had the operation and probably would have lived for a further five years.  His estate was awarded compensation of £15,591.

His personal representative argued in the Court of Appeal that in the light of recent developments in the law and the increasing emphasis given in modern times to the right to “personal autonomy of an individual” that modern Courts should acknowledge an actionable head of loss for breach of this right and sought a figure of £50,000.  The Court of Appeal disagreed in very strong terms.  The Appeal Court felt that this was a way of seeking compensation for loss of expectation of life – it looked as though the estate were trying to claim £10,000 for each year lost of Mr Ewan’s life.  That was not a possible claim in law (it is often the case that fatal claims are often not worth a great deal of money particularly where the deceased is elderly).

The Court dismissed the appeal and indicated that the law should not be extended to allow a separate award for failures of this kind.

Mike Shiers is a specialist Personal Injury Solicitor and Partner (Non-LLP Member) at Nash & Co in Plymouth