Clinical Negligence

Publish date

24 September 2018

Material risks and what they mean for Clinical Negligence cases

It is important that patients over the age of 18 with sufficient mental capacity are able to make fully informed decisions about the treatment options available to them. If full consent has not been obtained and the patient suffers injury from a material risk which was not explained, this may result in a clinical negligence case and the patient may need assistance from a solicitor to advise on a potential claim.

Young people are often inexperienced users of medical services or at least have limited experience of receiving advice from medical professionals without the support of parents. It may, therefore, be daunting for young patients to ask questions about their treatment. If in doubt, patients should take their time to consider all treatment options, including the option of doing nothing.

Why is full consent and material risk explanation so important?

The case of Montgomery v Lanarkshire Health Board [2015] made it very clear that patient autonomy is paramount. Medical professionals must ensure that all patients have a full understanding of what the proposed treatment plan involves, the material risks associated with that treatment, details of alternative treatments available and to explain this all in a way which the patient understands. A ‘material’ risk is one which in the circumstances of a particular case, a reasonable person in the patient’s position would likely attach significance to. For example, a keen footballer in his 20’s would likely attach more significance to a risk which could impede his ability to run, than an older person who played no sport at all.

Once all of the material risks have been explained, the patient can then weigh up the chances of those risks occurring with the potential benefits of the treatment and come to a reasoned conclusion about their own treatment, thus giving full consent.

What happens if consent was not obtained and material risk was not explained to the patient?

Failure to obtain full consent can lead to a clinical negligence case if a patient can show that a material risk was not explained, that risk then subsequently becomes reality and the patient’s evidence that they would not have opted for that particular course of treatment had they been aware of that risk, is accepted by the court.

The law of consent applies to everyone, however it is important for young people who may not be used to attending consultations by themselves, to be aware of the importance of asking questions, finding out about potential risks and thinking carefully before embarking on a particular treatment plan.

For more information about this topic, please get in touch

Heathervale House reception

Keep up to date with our newsletters and events