The legal consequences of failing to obtain consent

There are three possibilities:

1. Civil proceedings
2. Criminal proceedings
3. Disciplinary proceedings
Civil proceedings
There are two broad ways in which civil proceedings based on
lack of consent can be framed: negligence
Negligence
In order for a doctor to be found liable in negligence, the plaintiff
(claimant) would need to prove:
1. That the doctor obliged with a duty of care to the relevant
patient,
2. That the doctor was in breach of the appropriate standard of
care, and
3. That the breach in the duty of care caused the patient harm.
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Duty of care:
A duty of care is an obligation on one
party to take care to prevent harm being
suffered by another. Generally doctors
owe a duty of care to their patients.

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Duty of care:
Outside a hospital or a doctor's surgery, for
example, at the scene of an accident, a doctor
would not normally owe a duty of care if he did
not attempt to help.
In other words doctors are not legally obliged to
act as "good Samaritans".
However, once a doctor stops and either says
that he is a doctor, or starts to act as though he is
a doctor, he has taken on a duty of care to that
patient. This means that he is now potentially
liable in negligence.
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• In order for patients to choose whether to
have an operation, or a diagnostic test, they
need information.
• In particular they need information about
the benefits, risks and alternative treatments
available.
• A doctor may be found negligent in not
giving the patient certain relevant
information before the patient gives consent
for the procedure.

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• A typical negligence action involving consent will
occur when a surgeon, in his preoperative
counseling, fails to tell the patient about the risk of
a particular complication.
• The patient, in ignorance, gives his consent to the
procedure. The complication occurs. The patient
then sues the surgeon, saying that if he had known
of the risk he would not have consented to the
surgery.
• The measure of damages in such a case would be
that representing compensation for the
complication.
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Criminal proceedings
A doctor who does something without his patient's consent
is also at risk of prosecution. Criminal proceedings against
doctors for acting without consent would be instigated when
the doctor has simply made an error, and the doctor have
acted with wrong intention.
The two other commonest examples:
1. Sexual molestation: such as when a doctor performs, for
his sexual gratification, a breast or vaginal examination
for which there is no clinical justification.
2. Unnecessary treatment for financial gain: e.g. when a
dentist does unneeded fillings for the patient so that he
can charge the patient a higher fee.

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Disciplinary proceedings

Failing to follow the medical practice guidelines

Leeds to disciplinary proceedings a special fitness
to practice panel . The panel takes action on the
basis of ethical concern, and deciding whether
there has been impairment of fitness to practice
and or negligence.

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When is a patient’s consent not required?

(i) Necessity: The common law recognizes the principle

of necessity. The principle says that in an emergency,
act to save the life of a patient or prevent him from
suffering serious harm, unless it is possible to:
a) obtain consent,
b) ensure that the consent – or refusal of consent – is
valid, and
c) adhere to the requirements of the mental capacity
when the patient lacks the capacity to give consent.

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(ii) The „ordinary conduct of daily life‟
It is not an offence to touch someone without their
consent when that touching is “physical contact which is
generally acceptable in the ordinary conduct of daily life”
A doctor giving a welcoming handshake or a reassuring
pat on the arm to a patient would not be committing an
offence, regardless of whether the patient had
consented to being touched in this way.
(iii) Mental illness
(iv) Public health „modifiable disease‟, he can be
ordered to be detained
(v) Children and minors

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Information
• Patients have a right to information about their
condition and the treatment options available to
them.
• The amount of information you give each patient
will vary, according to factors such as: - the nature
of the condition,
- the complexity of the treatment,
- the risks associated with the treatment or
procedure, and
- the patient's own wishes.

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The information which patients want or ought to
know, before deciding whether to consent to
treatment or an investigation, may include:
1. Details of the diagnosis, and prognosis, and the
likely prognosis if the condition is left untreated;
2. Uncertainties about the diagnosis including
options for further investigation prior to
treatment;
3. Options for treatment or management of the
condition, including the option not to treat;
4. The purpose of a proposed investigation or
treatment;

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5. details of the procedures or therapies involved,
including subsidiary treatment such as methods of
pain relief;
6. How the patient should prepare for the procedure;
and details of what the patient might experience
during or after the procedure including common and
serious side effects;
7. for each option, explanations of the likely benefits
and the probabilities of success;
8. and discussion of any serious or frequently occurring
risks, and of any lifestyle changes which may be
caused by, advice about whether a proposed
treatment is experimental;
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9. How and when the patient's condition and any side
effects will be monitored or reassessed; or necessitated by,
the treatment;
10. The name of the doctor who will have overall
responsibility for the treatment and, where appropriate,
names of the senior members of his or her team;
11. Whether doctors in training will be involved, and the
extent to which students may be involved in an
investigation or treatment
12. A reminder that patients can change their minds about
a decision at any time;
13. A reminder that patients have a right to seek a second
opinion;
14. Where applicable, details of costs or charges which the
patient may have to meet. 13