Medical Negligence and informed consent

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An issue that arises in many medical negligence matters is the topic of informed consent given by a patient in order for a procedure or treatment to be carried out by a hospital or a doctor.

In respect of a patient’s autonomy, a doctor’s failure to disclose treatment risks and relevant medical information prior to a patient undergoing medical treatment has been accepted as being wrongful and actionable in tort.   Cases across Ireland and the UK have highlighted how important informed consent is and the disclosure made to patients prior to surgery.

Judge O’Flaherty in Daniels -v- Heskin stated that where there is a question of elective surgery which is not essential to the health or bodily wellbeing, if there is a risk, the exercise of possible consequences should be explained in the clearest language to the patient.

This case was also backed up by Fitzpatrick -v- White where the Supreme Court held “If there is significant risk which could affect the judgement of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk”.

This position is also supported in the United Kingdom in the case of Montgomery -v- Lanarkshire Health Board.

Judges ruled in the Supreme Court that a doctor has a duty of reasonable care to ensure that a patient is aware of a material risk involved in any recommended treatment.

This decision has also given the Irish Courts much direction and in essence encapsulates that medical treatment information and consent is to be given in a patient centred approach with informed consent given by the patient.


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