20 November 2023
Arden Yeomans, a trainee Solicitor in the Clinical Negligence Department looks at recent cases that have helped to clarify the law surrounding informed consent in clinical negligence.
If you would like to know more about what informed consent means and the law surrounding informed consent, please click here.
Negus v Guy’s and St Thomas’ NHS Foundation Trust (2021) is a recent case involving the issue of informed consent in a medical negligence setting. This case related to aortic valve replacement surgery.
In March 2014, the patient had a mechanical heart valve fitted. However, this surgery resulted in issues for the patient, who suffered a patient-prosthetic mismatch, and in March 2015 she required revision surgery to insert a larger valve. Insertion of a larger valve is a more invasive and complicated surgery and required an aortic root enlargement procedure in order to do so.
The patient subsequently suffered difficulties during the surgery and post-operatively. Unfortunately, her condition deteriorated, and she died of heart failure.
The Claimant’s family argued that the patient should have had a larger valve inserted in the first place in 2014, arguing that the deceased had not been properly informed of the risks of inserting a smaller valve (such as patient-prosthetic mismatch) nor had she been made aware of the alternative option of having a larger valve inserted in 2014.
In this case, the court ruled that the law in relation to consent following the case of Montgomery would continue to apply, and it was reinforced in Negus that a doctor will not have a duty to disclose technical information to the patient if that patient will be unable to understand it.
The court stated that the decision not to use a larger valve in 2014 involved a very technical decision which required specialist understanding. As a result, , the court ruled that the surgeon was able to exercise their own judgment and determine which outcome would be the best for the patient and the case was unsuccessful.
However, it is important to reinforce the fact that Negus confirmed this cannot be used as a loophole by clinicians to avoid discussing technical matters with patients. Negus shows that information still needs to be provided to the patient where they are capable of understanding this information. Therefore, cases of informed consent are unique and must be analysed on a case-by-case basis. There is no one size fits all answer.
How can TRUE help?
True Solicitors LLP are experts dealing with informed consent cases. If you believe that you have undergone a procedure in which you were not properly informed of the risks or alternative treatment options, you may be entitled to compensation.
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