In the climate of a flourishing medicolegal industry, where all aspect of clinical practice can, and will, be scrutinised with a fine-toothed legal comb, the burden of proof and responsibility often fall upon the medical profession which places a financial penalty on the health service. We feel that the emphasis of obtaining consent has now shifted to producing legal defence papers rather than providing information and understanding of a procedure to the patient.
One of us was recently involved with a bungee jumping event abroad. The consent for this is for an event with no intention of improving the quality of life but, in fact, puts life at risk. If the NHS employed a similar ‘consent’ framework, it would read like the following:
I accept that surgery carries with it some degree of risk, both to person and property, and of emotional trauma of friends and family. Knowing the risk I still wish to participate in surgery and so expressly agree to assume the risk.
I release, waive and hold harmless the NHS Trust, its officers and/or its employees from all claims, losses, damages or expenses including legal costs that may be incurred during or in conjunction with my participation in surgery.
I also indemnify the NHS Trust, its officers and/or its employees against all claims, losses, damages or expenses including legal costs that any of my family or their executors, administrators, heirs, next of kin, successors or assignees may have or assert against the NHS Trust as a result of my participation in surgery.
I hereby consent to receive further treatment deemed to be necessary by the NHS Trust in the case of injury, accident or illness during the course of surgery and also agree to indemnify the NHS Trust in respect of such treatment.
It is made clear from the consent form for the voluntary act of jumping off a bridge for momentary exhilaration, that the participant has to assume all risks. An assumption is made that all safety procedures have been followed and all equipment checked prior to the event. Similarly, the above clauses can be adapted to existing consent forms for surgery to remind patients that they are undergoing surgery voluntarily, and surgery is never risk-free. As long as all parties and equipment involved in the surgery are qualified and safety procedures are followed, barring significant deviation from normal surgical procedures, surgeons and health trusts would, in our opinion, have a stronger legal standpoint. We must stress that this does not take away a patient's right to litigation in cases of negligence or incompetence. It will at least discourage any opportunistic legal actions in which the aim is more likely to be financially motivated.