Patients dont seek to sue their Doctors or Nurses for Clinical Negligence, its costly, lengthy and very traumatic, but with the increasing numbers of Cosmetic Surgery procedures here in the UK there has been an inevitable correlation and increase in Clinical Negligence cases landing on the desks of the Lawyers.
There are two main reasons given for this spike in litigation firstly, the surge in numbers of cosmetic procedures performed and secondly the unsatisfactory surgical outcome.
Can Cosmetic Surgery Patients protect themselves from ending up in Court?
Well as they say knowledge is power and being a well informed patient will give you the cutting edge when choosing who yields the scalpel on you.
All this week AESTHETiKA are featuring the Aesthetic Patient and The Law.
We will be posting information for you here on the website on our FaceBook page and Twitter too using #AestheticLaw
CONSENT – BE A WELL-INFORMED PATIENT
Do you know that you must provide your Doctor with consent to treat you?
Consent to treatment is the foundation of the surgeon-patient relationship.
Without consent being provided, an operation would constitute a battery on the patient, and could give rise to criminal or civil proceedings.
Therefore, before most surgery, even minor procedures, you will be asked to sign a consent form. Such forms are usually standard, explaining the nature and purpose of the procedure; the patient signs to say that he/she has read and understood it, and has consented. However, the form itself should be considered window dressing, as it is the explanation of everything that is contained on the form that is the important issue. Just signing the consent form, without any explanation being given to you, will not be considered valid consent. The consent process should be seen as an open dialogue between you and the surgeon – it is not just a process of getting a signature on a form.
Plastic surgery is elective, and therefore entails a choice being made by you to go ‘under the knife’ in order to achieve a particular result. Therefore, patients whose initial expectations are not met frequently resort to litigation. For these reasons, the burden of proof on a surgeon undertaking to perform plastic surgery is generally thought to be of a higher standard than that which applies to an NHS surgeon.
VALID CONSENT
For consent to a medical procedure to be valid, three elements must exist:
1. It must be voluntary and unforced; any degree of coercion will render otherwise valid consent invalid. To ensure that consent is freely given, you should be given time to consider your options before deciding to proceed with a proposed treatment, and an opportunity to ask questions.
2. You must be capable of understanding what the procedure is, and the risks associated with it. The starting point in the case of adults is always to presume that the patient has capacity until it is shown otherwise.
3. You must be given sufficient information concerning the nature of the procedure so that you know what you are consenting to. The General Medical Council and the courts expect patients to be given all information material to their decision, including details of potential complications.
Failure to adhere to these three principles may result in you taking a risk that you would not have taken had you been fully aware of it.
WHAT SHOULD YOU BE INFORMED ABOUT?
A surgeon is not expected to warn a patient about every single risk. Currently, there is no duty on surgeons to disclose the risk of death associated with general anaesthetic or of routine risks of surgery, such as bleeding, pain, the risk of infection, or that the surgeon is inexperienced at the procedure proposed.
You should be informed about:
• The possible side effects – to include common, minor side effects all the way up to rare but serious complications, including potential death.
• Complications;
• Failure of the treatment to achieve the desired outcome. You should be informed as to what is realistically achievable and what is simply unattainable.
Your surgeon should inform you of these risks even if it may put you off altogether. This discussion should also include the surgeon reminding you that plastic surgery is surgery and that the risks involved are real.
This information can be given in a variety of formats and is now often provided through leaflets - this is no substitute, however, for a full and frank discussion with the surgeon. There should be a detailed discussion between you and the surgeon, not a clinic sales advisor, to discuss your expectations.
EMERGENCY SITUATIONS
An adult patient who becomes temporarily unable to consent due to, for example, being unconscious, may receive treatment necessary to preserve life. In such cases the law allows treatment to be provided without the patient’s consent, as long as it is in that patient’s best interests.
Medical intervention which is considered to be in the patient’s best interests, but which can be delayed until they can consent, should be carried out only when consent can be given.
The right of patients to choose whether or not to undergo a particular treatment is a fundamental one. Only in cases of immediate emergency, or where it is clear that the patient is incapable of giving their consent, can a surgeon proceed with treatment without consent, and must always do so in the patient’s best interest.
We are grateful for the help and guidance provided for us for our featured articles by the Lawyers at Michelmores.
Please be advised there is to the best of our knowledge
No Declaration of Interests and
No Conflicts of Interest
No fees were exchanged or agreed.
You can contact Michelmores directly here at http://www.michelmores.com/
we are especially grateful to Caroline Webber-Brown for allowing us to redistribute this comprehensive article on Consent.
Caroline Webber-Brown
Solicitor
[email protected]
01392 687503
Caroline has developed a broad range of clinical negligence experience since qualifying in 2009. She has experience of cases involving obstetric/gynaecological injuries, surgical error (including orthopaedic and urological surgery) delays in diagnosis, nursing care failures (including pressure sore injury), failed cosmetic surgery and claims arising following the death of a loved one.
Caroline also heads up Michelmores’ NHS Continuing Healthcare team. She currently acts for numerous clients in the recovery of paid care fees and challenging current decisions to refuse future NHS Healthcare funding.
Caroline is a member of AVMA (Action Against Medical Accidents), the Association of Personal Injury Lawyers and Devon & Exeter Medico Legal Association.
There are two main reasons given for this spike in litigation firstly, the surge in numbers of cosmetic procedures performed and secondly the unsatisfactory surgical outcome.
Can Cosmetic Surgery Patients protect themselves from ending up in Court?
Well as they say knowledge is power and being a well informed patient will give you the cutting edge when choosing who yields the scalpel on you.
All this week AESTHETiKA are featuring the Aesthetic Patient and The Law.
We will be posting information for you here on the website on our FaceBook page and Twitter too using #AestheticLaw
CONSENT – BE A WELL-INFORMED PATIENT
Do you know that you must provide your Doctor with consent to treat you?
Consent to treatment is the foundation of the surgeon-patient relationship.
Without consent being provided, an operation would constitute a battery on the patient, and could give rise to criminal or civil proceedings.
Therefore, before most surgery, even minor procedures, you will be asked to sign a consent form. Such forms are usually standard, explaining the nature and purpose of the procedure; the patient signs to say that he/she has read and understood it, and has consented. However, the form itself should be considered window dressing, as it is the explanation of everything that is contained on the form that is the important issue. Just signing the consent form, without any explanation being given to you, will not be considered valid consent. The consent process should be seen as an open dialogue between you and the surgeon – it is not just a process of getting a signature on a form.
Plastic surgery is elective, and therefore entails a choice being made by you to go ‘under the knife’ in order to achieve a particular result. Therefore, patients whose initial expectations are not met frequently resort to litigation. For these reasons, the burden of proof on a surgeon undertaking to perform plastic surgery is generally thought to be of a higher standard than that which applies to an NHS surgeon.
VALID CONSENT
For consent to a medical procedure to be valid, three elements must exist:
1. It must be voluntary and unforced; any degree of coercion will render otherwise valid consent invalid. To ensure that consent is freely given, you should be given time to consider your options before deciding to proceed with a proposed treatment, and an opportunity to ask questions.
2. You must be capable of understanding what the procedure is, and the risks associated with it. The starting point in the case of adults is always to presume that the patient has capacity until it is shown otherwise.
3. You must be given sufficient information concerning the nature of the procedure so that you know what you are consenting to. The General Medical Council and the courts expect patients to be given all information material to their decision, including details of potential complications.
Failure to adhere to these three principles may result in you taking a risk that you would not have taken had you been fully aware of it.
WHAT SHOULD YOU BE INFORMED ABOUT?
A surgeon is not expected to warn a patient about every single risk. Currently, there is no duty on surgeons to disclose the risk of death associated with general anaesthetic or of routine risks of surgery, such as bleeding, pain, the risk of infection, or that the surgeon is inexperienced at the procedure proposed.
You should be informed about:
• The possible side effects – to include common, minor side effects all the way up to rare but serious complications, including potential death.
• Complications;
• Failure of the treatment to achieve the desired outcome. You should be informed as to what is realistically achievable and what is simply unattainable.
Your surgeon should inform you of these risks even if it may put you off altogether. This discussion should also include the surgeon reminding you that plastic surgery is surgery and that the risks involved are real.
This information can be given in a variety of formats and is now often provided through leaflets - this is no substitute, however, for a full and frank discussion with the surgeon. There should be a detailed discussion between you and the surgeon, not a clinic sales advisor, to discuss your expectations.
EMERGENCY SITUATIONS
An adult patient who becomes temporarily unable to consent due to, for example, being unconscious, may receive treatment necessary to preserve life. In such cases the law allows treatment to be provided without the patient’s consent, as long as it is in that patient’s best interests.
Medical intervention which is considered to be in the patient’s best interests, but which can be delayed until they can consent, should be carried out only when consent can be given.
The right of patients to choose whether or not to undergo a particular treatment is a fundamental one. Only in cases of immediate emergency, or where it is clear that the patient is incapable of giving their consent, can a surgeon proceed with treatment without consent, and must always do so in the patient’s best interest.
We are grateful for the help and guidance provided for us for our featured articles by the Lawyers at Michelmores.
Please be advised there is to the best of our knowledge
No Declaration of Interests and
No Conflicts of Interest
No fees were exchanged or agreed.
You can contact Michelmores directly here at http://www.michelmores.com/
we are especially grateful to Caroline Webber-Brown for allowing us to redistribute this comprehensive article on Consent.
Caroline Webber-Brown
Solicitor
[email protected]
01392 687503
Caroline has developed a broad range of clinical negligence experience since qualifying in 2009. She has experience of cases involving obstetric/gynaecological injuries, surgical error (including orthopaedic and urological surgery) delays in diagnosis, nursing care failures (including pressure sore injury), failed cosmetic surgery and claims arising following the death of a loved one.
Caroline also heads up Michelmores’ NHS Continuing Healthcare team. She currently acts for numerous clients in the recovery of paid care fees and challenging current decisions to refuse future NHS Healthcare funding.
Caroline is a member of AVMA (Action Against Medical Accidents), the Association of Personal Injury Lawyers and Devon & Exeter Medico Legal Association.
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