Before you agree to treatment, you should be told about the risks that a patient in your position would think mattered, and about any reasonable alternatives, including the option of doing nothing. Consent given without that information may not be valid consent, even if you signed a form.
This guide explains what you should have been told, why a signature is not the whole picture, and when a consent failure can form part of a claim.
INFORMED CONSENT - Agreement to treatment given by someone who understands what is being proposed, what could go wrong, and what else could be done instead. It is a conversation, not a form.
What should I have been told?
Three things, in plain language you could understand:
What the treatment involves and what it is meant to achieve
The risks that matter, including ones that are rare but serious
The reasonable alternatives, including waiting or doing nothing at all
You should also have been given enough time to think about it. A discussion held minutes before a procedure, when you are already gowned and waiting, is not the same as a discussion held at a point when you could still change your mind.
What counts as a risk that matters?
The test is not what doctors in general think is worth mentioning. It is what you, or a patient in your position, would be likely to think was significant.
That means the same risk can matter for one person and not another, a small risk to fine hand movement matters a great deal to a musician, a risk affecting fertility matters differently depending on the patient, your doctor is expected to think about what would be significant to you, not to work from a standard list.
The Supreme Court set this standard in Montgomery v Lanarkshire Health Board in 2015, it replaced an older approach that left the decision about what to mention almost entirely to the profession.
Does signing a consent form mean I consented?
Not by itself, a signature records that a form was signed. It does not prove that the conversation behind it ever happened, or that it covered what it should have.
What matters is what you were actually told, when you were told it, and whether you had a real chance to ask questions and decide. Many people sign a form without ever having had that conversation, and the form alone does not answer the question.
Was I supposed to be awake for it?
Often, yes. A great many procedures are carried out under local anaesthetic by design, and being awake for one of them is not a sign that anything went wrong. Most cataract and other eye operations work this way, as do many skin, hand and dental procedures.
So the question is not whether you were awake, it is whether you were told beforehand that you would be, and what it was likely to feel like. Being unprepared for an experience that was always going to happen is a consent issue rather than a surgical one.
Feeling real pain during a procedure where you should have felt none is a different question, and worth raising separately.
What if the treatment itself was done well?
A consent failure is its own issue, if you were not told about a risk that mattered to you, and that risk then happened, the fact that the procedure was carried out competently does not answer the point.
The question a claim has to deal with is what you would have done if you had been told. If you would have chosen a different treatment, gone elsewhere, or waited, then the failure to tell you made a real difference. If you would have gone ahead regardless, it is harder to show the failure caused you harm. That is a genuinely difficult question, and it is decided on evidence rather than on hindsight.
Does this apply to private and cosmetic treatment?
Yes, and consent tends to matter most where treatment is elective. If you are choosing to have something done rather than needing it, the alternatives and the risks are the whole basis of the decision.
The standard is the same for NHS care, private treatment, dental work and cosmetic procedures.
Were you told what you should have been told?
If something happened that nobody warned you about, talk it through with our medical negligence team, free and without obligation.
Frequently asked questions
There are more on our FAQ page.