Consent in clinical negligence claims—treatment and causation
Produced in partnership with James Byrne of 9 Gough Square
Consent in clinical negligence claims—treatment and causation

The following PI & Clinical Negligence guidance note Produced in partnership with James Byrne of 9 Gough Square provides comprehensive and up to date legal information covering:

  • Consent in clinical negligence claims—treatment and causation
  • The principle of self-determination
  • Can a patient demand treatment?
  • Valid consent
  • Implied consent
  • Sufficient information
  • Prior to Montgomery
  • Post Montgomery
  • What must patients prove they would have done if duly warned?

For further consent issues such as emergency treatment, withdrawal of consent, capacity, battery and Human Rights Act Claims, see Practice Note: 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.

Every adult with the necessary mental capacity to make their own treatment decisions has the right to decide whether or not they will accept treatment, even if refusal risks permanent injury or death to them or their unborn child. Nor can that treatment be legitimised by detaining them as a mental patient.

The principle of self-determination

The principle of self-determination is fundamental to medical law and clinical negligence cases involving consent. See Airedale NHS Trust v Bland:

‘Any treatment given by a doctor to a competent patient which is invasive (ie which involves any interference with the physical integrity of the patient) is unlawful unless done with the consent of the patient: it constitutes the crime of battery and the tort of trespass to the person.’

The principle of self-determination is underpinned by the European Convention on Human Rights:

  1. article 8: See Pretty v UK:

    ‘In