Consent in clinical negligence claims—capacity and other issues

The following PI & Clinical Negligence practice note provides comprehensive and up to date legal information covering:

  • Consent in clinical negligence claims—capacity and other issues
  • The emergency treatment defence—unconscious patients
  • Convenience is no excuse
  • Human Rights Act 1998 claims
  • Professional guidelines
  • Withdrawal of consent
  • Capacity
  • Children, parents and adults without mental capacity
  • Children and parents
  • Adults
  • More...

Consent in clinical negligence claims—capacity and other issues

Treatment of a patient by a doctor requires prior consent in order to be lawful. This is so whether the treatment is a simple test or an invasive operation. In practice, issues of consent will only tend to arise following more serious and risky kinds of treatment such as surgery.

For further consent issues such as self-determination, valid consent, implied consent, sufficient information in accordance with Montgomery and causation, see Practice Note: Consent in clinical negligence claims—treatment and causation.

The emergency treatment defence—unconscious patients

What if the patient was unconscious on arrival at the hospital?

The general rule is that where treatment is necessary to preserve the patient’s life or health and no more than reasonably required in the patient’s best interests before recovery of consciousness, consent is implied or assumed.

In Wilson, the Court of Appeal reasoned that, rather than resorting to the language of implied consent, it was better to say that an emergency operation on an unconscious patient was acceptable in the ordinary conduct of everyday life.

Convenience is no excuse

The emergency defence only applies if it is an emergency. It does not apply because it was merely convenient for the surgeon to do the second operation at the same time as the main one.

In Murray v McMurchy [1949] 2 DLR 442 (not reported by LexisNexis®) the patient had consented

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