If treatment caused a risk you were never told about, the central legal question is what a proper discussion would have enabled you to decide. The investigation considers the information that should have been provided, the choices reasonably available at the time, what you would have chosen with that information, and whether the missing discussion caused the injury claimed. A signed consent form is evidence, but it does not answer all those questions.
This guide explains how to reconstruct a treatment decision for legal advice in England and Wales. It is not a recommendation about whether to accept or refuse any current treatment. If a decision is still pending, raise your questions with the treating team and seek appropriate clinical advice. Evidence preparation should support understanding without delaying urgent care or turning a legal article into a substitute for a medical consultation.
Begin with the decision you believe was affected. “I was not warned about anything” may be too broad if some risks were discussed. A more useful account identifies the particular risk, when you first learnt about it, and why it would have mattered to your choice. You do not need to prove your claim in an opening email; you need to show the adviser which discussion should be investigated.
Decision discussion
Consent is a process involving information and choice. It may unfold over several appointments, letters, telephone conversations and discussions on the day of treatment. A form signed at the end may summarise only part of that process. Reconstruct the whole sequence, including the earliest recommendation, later questions, changes to the plan and any confirmation immediately before the procedure or medication began.
Identify who spoke to you and in what role. A consultant may have recommended treatment, a nurse may have provided written material and another clinician may have completed the form. Record what each person said rather than combining everyone into one unnamed “doctor”. If you do not know a name, a role, appointment date or location may help the provider locate the relevant entry.
Describe the setting because it may explain the opportunity to engage. Was the discussion at a planned outpatient appointment, by telephone while you were at work, in a busy ward, or during an emergency? How long did you have to consider the proposal? Were you in pain, affected by medication, waiting for an interpreter or struggling to hear? These are factual circumstances for assessment, not automatic conclusions that consent was invalid.
Separate information received from information understood
Write down what you remember being told before reading the full records if possible. Then compare your account with the documents and note differences. This preserves the distinction between your original memory and material you learnt later. A recollection can be incomplete without being dishonest. “I remember being told about infection, but do not remember discussion of this particular consequence” is often more accurate than claiming certainty about every sentence.
Preserve patient information leaflets, links, videos, letters and diagrams. Record when you received or accessed them and whether there was an opportunity to ask questions. A leaflet supplied after treatment cannot necessarily show what informed the earlier decision. Conversely, an email sent beforehand may be important even if it was not printed and filed with the signed form. Keep the version actually provided, where available.
Consider whether the language used had a clear meaning to you. A technical term may not communicate its practical consequences without explanation. State the words used and what you understood them to mean at the time. Do not replace them with a more precise medical description learned afterwards. The legal assessment can then examine whether the communication was sufficient in the circumstances rather than simply whether a risk label appeared somewhere.
Communication support and participation
If an interpreter, advocate, relative or friend attended, record their role. Someone may have translated, helped you remember information or merely accompanied you. Those roles are not interchangeable. Preserve requests for support and any response. A person's presence does not automatically mean they had authority to make the treatment decision, and an adult patient's own capacity and wishes require proper consideration.
The General Medical Council's seven principles of decision making and consent emphasise individual dialogue, information, time and support, and understanding what matters to the patient. These professional standards provide useful context for reviewing communication. Whether a particular failure establishes civil liability still requires legal analysis of the duty, the evidence and the consequences.
If you felt unable to ask a question, explain why and identify any attempt to raise it. There is a difference between a clinician refusing to discuss a concern and a patient deciding not to ask despite an available opportunity. Both accounts deserve an accurate record. Avoid assuming that a legal case requires you to describe the consultation in the strongest possible terms; specific facts are more valuable than dramatic labels.
Material risks
In Montgomery v Lanarkshire Health Board [2015] UKSC 11, the Supreme Court explained the duty to take reasonable care to make a patient aware of material treatment risks and reasonable alternatives. A risk can be material because a reasonable person in that patient's position would attach significance to it, or because the clinician knows or should know that this particular patient would. Materiality is not determined by a percentage alone.
For your evidence task, identify the practical feature that made the risk important. It might affect a valued activity, independence, employment, future plans or an existing vulnerability. Write down what the clinician knew about that feature before treatment. An occupation in the notes, a direct question during consultation or a referral describing your priorities may help establish the context in which information should have been shared.
The fact that a consequence is now devastating does not automatically establish what should have been discussed beforehand. Legal assessment considers the situation at the time of the decision. Preserve evidence of your earlier concerns and preferences so the adviser can distinguish a longstanding priority from an understandable view formed after the outcome. Both are part of your experience, but they serve different evidential purposes.
Describe the missing risk precisely
Try to distinguish the event from its consequences. “Nerve injury”, “temporary numbness” and “lasting difficulty using the hand” may describe different levels of information. Record exactly what was said, what was written and which consequence you say was omitted or understated. An expert may need to explain how the risk would ordinarily have been understood and whether the description matched the treatment under consideration.
If a numerical risk was given, preserve the number and the way it was presented. Was it a percentage, a phrase such as uncommon, or a comparison with another option? Did it concern all patients or your particular circumstances? You should not calculate a personal probability from internet data. The useful task is to record the communication and let appropriate experts assess its accuracy and relevance.
A risk may also have been discussed but presented as trivial, temporary or easily reversible. If your concern is understatement rather than complete omission, say so. Record the reassurance and its context. The investigation can examine whether the explanation gave a fair picture. It should not be forced into a binary account in which the risk was either fully disclosed or never mentioned at all.
Do not confuse consent with treatment technique
A treatment can be performed competently yet give rise to a consent claim if a legally required discussion was missing and causation is established. Conversely, a patient can give informed consent to a procedure and still suffer injury from negligent performance. Accepting an inherent risk does not amount to accepting careless treatment. The two issues may need different expert evidence and should be recorded separately.
If your concern involves the way an operation was carried out, read Surgical Complication or Avoidable Error?. Keep one list of communication concerns and another of technical or aftercare concerns. The lists may overlap, but combining them into a single statement that you “never consented to the outcome” can obscure the legal questions. Consent to treatment is not a guarantee that every outcome will be favourable.
Alternatives
An investigation should identify which alternatives were reasonably available when you made the decision. That does not mean every treatment mentioned online had to be offered. The appropriate range may depend on diagnosis, urgency, clinical suitability and the information available. Preserve what was said about doing nothing, waiting, monitoring, another procedure or a different form of treatment, but leave clinical suitability to qualified assessment.
McCulloch v Forth Valley Health Board [2023] UKSC 26 distinguishes identifying reasonable alternative treatments from explaining material risks. The former involves professional clinical judgment assessed by the responsible-body standard, subject to the requirement of logical defensibility. Montgomery's patient-focused duty governs the discussion of material risks and reasonable options. McCulloch does not turn material risk disclosure into a matter decided solely by customary medical practice.
For a practical account, list the alternatives in three groups: options actually offered, options you asked about, and options you only learnt about afterwards. Record who mentioned each one and the reason it was accepted, rejected or not discussed. This prevents a later internet search from being presented as evidence that a particular option was clinically reasonable and accessible at the earlier date.
The option of waiting or declining
If you believe you would have declined treatment, explain what that would have meant in real life. Would you have tolerated symptoms, continued another treatment, sought further advice or accepted a risk of deterioration? An honest account should include the disadvantages as well as the attraction of avoiding the eventual injury. The comparison is between the actual path and a realistic alternative, not between treatment and a risk-free world.
If you would have postponed treatment, identify the purpose and likely duration of the delay. Waiting for childcare, a second opinion or further investigation may have different implications. Explain what information you would have sought and how it might have affected the next decision. Whether postponement establishes legal causation is a specialist question; simply saying “I would have chosen another day” is not automatically sufficient.
Where the treatment was urgent, record what made it urgent and what was explained. An emergency may affect the available time and choices, but the label should not replace examination of the facts. There may have been earlier opportunities for discussion before an emergency developed. Equally, a retrospective claim that there was unlimited time may be inconsistent with the clinical records. Provide the sequence so both possibilities can be considered.
An alternative at another provider
Sometimes a patient says they would have sought treatment elsewhere. Preserve evidence of earlier enquiries, waiting times, referral options or financial arrangements that made this realistic. Do not assume a treatment advertised by another provider was appropriate or available to you. A solicitor may need expert evidence and factual evidence about access before evaluating whether the proposed alternative would have avoided the injury.
For private treatment, keep the booking terms, consultation fees, treatment package and communications about who would perform the procedure. The guide Private Treatment: Who Was Responsible? helps identify the clinician and organisation involved. The person who sold a package, the clinician who discussed risks and the provider who delivered treatment may have different responsibilities; the consent reconstruction should identify each role.
Decision-making evidence
The key counterfactual question is what you would probably have decided with an adequate discussion, considered under the applicable legal principles. Your own evidence matters, but the assessment may also consider records made before treatment, behaviour, questions, earlier choices and the treatment's expected benefits. There is no need to manufacture certainty. Explain your reasoning in the words you would naturally use.
Start with why you sought treatment. Was the goal pain relief, improved function, investigation of a worrying symptom or something else? How severe were the difficulties, and what had already been tried? Then explain the missing information and how it would have changed the balance for you. A persuasive factual account addresses both the desire for treatment and the reason a particular risk might have altered the decision.
Causation also concerns the injury. Even if the discussion was inadequate, it is necessary to examine whether the different decision would have avoided the relevant harm. The injury might have occurred through the underlying condition, another treatment or an unrelated cause. Consent claims can involve difficult exceptions and case-specific principles, so a general article cannot determine the result from a patient's statement alone.
Evidence that predates the outcome
Useful material can include messages to family about fears, questions sent to the clinic, a request for a less invasive option, earlier refusals, an employment discussion about recovery or notes about caring responsibilities. Preserve the full conversation and its dates. A sentence lifted from a longer exchange may give an incomplete impression, especially where your view changed as more information became available.
Witnesses should describe what they actually heard and observed. Ask a companion to make their own dated note rather than jointly writing a single polished version. Differences in recollection can be natural. Avoid coaching someone to adopt your terminology or deleting an account that remembers a warning you do not recall. The solicitor needs to understand the evidence's strengths and weaknesses before deciding how to proceed.
Your later conduct can also matter. Record what happened when you first learnt of the risk: whom you contacted, what questions you asked and whether you sought another opinion. Do not try to engineer a reaction for legal purposes. A contemporaneous complaint can provide useful evidence, but the absence of an immediate complaint may have an understandable explanation, such as recovery, confusion or a focus on ongoing care.
Request the underlying consent material
Ask for the full relevant consultation and consent records, not only the signed page. Depending on the treatment, useful material may include referral letters, clinic notes, correspondence, preassessment records, forms, annotated diagrams, patient leaflets and electronic messages. The guide Obtaining Records About Your Medical Treatment explains how to approach separate record holders and document gaps.
Check whether the record refers to an attachment, leaflet version or electronic module that has not been supplied. A note saying “risks discussed” may require context; it should neither be ignored nor treated as a verbatim transcript. If a document appears to have been completed later, record the visible dates and ask for clarification. Do not infer dishonesty solely from a difference between treatment date and entry date.
Keep a comparison page with three columns: your recollection, the provider's record and the question to resolve. Examples include whether the risk was discussed in practical terms, whether a specific concern was answered, or whether the signed form related to the procedure actually performed. This format allows disagreement to remain visible without prematurely choosing one account as conclusively correct.
Practical asset: consent discussion reconstruction
Use a separate sheet for each decision if the treatment plan changed. The aim is to reconstruct the choice at the relevant moment, not to create one narrative that treats every later development as predictable. Date the sheet and identify which entries come from memory and which come from documents. Keep a copy before adding information from newly received records.
| Question | Your factual entry | Supporting material |
|---|---|---|
| What treatment was proposed? | Name, purpose and proposed date | Referral or clinic letter |
| What benefit did you expect? | Your understanding at the time | Notes, messages or leaflet |
| What risks were discussed? | Words, numbers and practical explanation | Form and consultation records |
| What important risk was missing? | Specific event or consequence | Later explanation and diagnosis |
| What mattered personally? | Work, independence, plans or concerns | Earlier questions and correspondence |
| Which options were mentioned? | Offered, requested or later discovered | Letters and appointment notes |
| What support was available? | Interpreter, advocate, time to reflect | Booking and attendance information |
| What would you have chosen? | Realistic alternative and reasons | Earlier conduct and witness account |
| How might injury have been avoided? | Question for expert assessment | Clinical records and subsequent care |
| What remains uncertain? | Disputed fact or missing document | Follow-up request needed |
After completing the table, write a short paragraph beginning, “At the time, I wanted…” Follow it with what you understood about the proposed treatment and the point at which additional information would have mattered. This often reveals whether the concern is primarily about a missing risk, an unexplained alternative, pressure, lack of understanding or a different procedure. Those issues may coexist, but identifying them helps plan the investigation.
Then write the strongest factual point that might challenge your position. Perhaps a risk appears on the form, you were keen to proceed quickly, or an earlier message says you accepted considerable uncertainty. Explain the context rather than leaving it out. A reliable assessment needs those details, and an adviser can only address them properly if they are disclosed at the outset.
Finally list the next three evidence tasks. They might be obtaining a leaflet version, asking a companion for an independent recollection and locating a pre-treatment email. Keep the tasks achievable. You do not need to search every medical publication or repeatedly question clinicians until they use the language you expect. A focused evidence plan leaves the clinical and legal judgments to appropriate professionals.
Hypothetical examples: why the personal decision matters
Hypothetical example: a musician's particular concern. A patient considering an elective procedure repeatedly asks about fine finger movement because playing an instrument is central to their work. The eventual complication affects that function. The investigation would examine what was known about the patient's priorities, how the risk was explained, what alternatives were reasonable and what choice an adequate discussion would have produced. The occupation does not automatically establish liability, but it may make particular evidence important.
Hypothetical example: a form lists a risk without explaining it. A patient signs a form containing a technical term and later says they understood it to mean a brief inconvenience rather than the lasting effect experienced. The provider says the term was explained in consultation. The factual task is to compare the consultation records, leaflet, witness accounts and timing. The signature is relevant, but it does not eliminate the need to examine the discussion.
Hypothetical example: a later-discovered alternative. After a poor outcome, a patient reads about a different treatment and says it should have been offered. Records indicate a clinical reason why it may not have been suitable. Expert assessment is needed to address whether it was a reasonable alternative at the time. Only then can the investigation sensibly examine the required discussion and the patient's likely decision.
Hypothetical example: the same choice despite better information. A patient was not adequately warned about a complication but had an urgent, serious condition and no reasonable option they would have chosen instead. The communication failure may still merit explanation or complaint. Whether it supports compensation requires a separate causation analysis. Poor communication and a recoverable damages claim are related questions, but they are not interchangeable.
These are invented examples to illustrate evidence tasks. They are not AJ Solicitors case histories and do not predict how a court would decide any particular dispute. Real cases depend on the complete factual and expert evidence, including the benefits and risks of the alternatives and the patient's circumstances at the time.
Moving from concern to an informed legal decision
Ask the adviser to identify the precise allegation under consideration. Is it failure to explain a material risk, failure to discuss a reasonable alternative, inadequate communication support, or treatment outside the agreed scope? Ask separately what evidence is needed about your likely decision and the medical consequences. This helps prevent money being spent on a broad investigation that never addresses the central causal question.
Time limits need early attention even if the consent concern emerged only after you obtained records. Provide the treatment date, the onset of injury, when you first suspected a connection and when the missing information became apparent. A complaint or records request does not automatically stop limitation running. Do not wait for a provider to agree with your account before obtaining advice about the necessary protective steps.
Discuss costs before authorising work. AJ Solicitors acts on private fees and does not offer legal aid. Ask about the proposed stages, likely expert costs and what would cause the assessment to stop or expand. If you have possible legal expenses insurance or other external support, disclose it so the terms can be checked. No particular funding arrangement or outcome should be assumed from reading this guide.
The firm's clinical negligence claims page provides service context. For this specific issue, the most useful preparation is an honest reconstruction of the choice you faced, supported by the records that existed before the outcome. That gives an adviser a concrete basis for explaining whether further investigation is justified and what questions remain unresolved.
Checking the account before sending it
Read the reconstruction once for dates and once for meaning. On the first pass, check that the leaflet, consultation and signature are in the correct order. On the second, ask whether your description explains the actual decision rather than simply expressing disappointment with the result. Keep the emotional impact in the account where relevant, but make the factual questions easy to locate.
If the records contain sensitive information unrelated to the disputed treatment, do not edit the original file or send it through an insecure channel. Ask the adviser which material is needed and how to provide it securely. A short index can identify a relevant page without copying your entire medical history into an opening message. Retain your own complete copies so that later advice can be checked against the same material.
Frequently asked questions
1. How should I preserve an annotated diagram used to explain a risk?
Keep the complete diagram, including handwritten marks, labels, dates and any surrounding text. Record who drew or annotated it and what explanation accompanied each mark. If you only have a photograph, retain the original image and note when it was taken. A diagram may show what was discussed, but its meaning can depend on the spoken explanation, so describe your understanding without adding terminology learnt afterwards.
2. Must a clinician explain every possible complication?
The legal duty is not an unlimited catalogue of every conceivable event. Material risks and reasonable alternatives require consideration in the patient's circumstances. The significance of a risk can depend on its consequences and the patient's known priorities as well as likelihood. A solicitor and appropriate expert can assess the specific omission; a general statement that a complication was rare does not settle the issue either way.
3. What if the risk was mentioned only in a leaflet?
Keep the actual leaflet and record when it was supplied, whether you could understand it and whether you had an opportunity to ask questions. Written information can be part of a proper process, but its adequacy depends on the wider circumstances. A leaflet first provided after treatment has a different evidential role from one discussed beforehand. Avoid assuming that the existence or absence of a leaflet is conclusive.
4. Can a very small risk still be material to my decision?
Potentially. A low probability can have particular significance because of the seriousness of the possible consequence or what matters to an individual patient. Explain the relevant personal circumstances and what the clinician knew or should have known. The assessment remains fact-specific. Do not substitute a percentage found online for evidence about the actual treatment, patient characteristics and information available at the time.
5. What if I would have accepted treatment but wanted more time?
Explain what you would have done with that time, such as obtaining advice, arranging support or considering a particular alternative. The legal effect of postponement can be complex and does not follow automatically from saying you would have chosen another date. An adviser needs a realistic account of the later decision and evidence about whether the alleged communication failure caused the injury for which compensation is sought.
6. Is a poor outcome evidence that the consent discussion was inadequate?
A poor outcome may prompt questions but does not prove what was said before treatment. Preserve the pre-treatment records and your recollection separately from later explanations. An inherent complication can occur after an adequate discussion and competent care. Conversely, an inadequate discussion can exist even if the procedure was technically performed well. The communication evidence and the medical outcome each need their own assessment.
7. How should a companion record what they heard at the appointment?
Ask them to write their own dated recollection in their own words, stating where they were, what they heard and what they cannot remember. They should distinguish direct observation from information you later supplied. Avoid preparing a joint account that smooths away differences. The adviser can evaluate consistent and inconsistent recollections more reliably when each person's original account remains identifiable and uncoached.
8. What if the clinician says their usual practice is to explain that risk?
Usual practice may be relevant evidence, but the circumstances of the particular consultation also matter. Preserve the appointment notes, form, correspondence and any witness account. Identify specific reasons why you believe the discussion differed from the usual process, if there are any. Do not treat the absence of a detailed note as automatic proof that nothing was said, or a standard phrase as a complete transcript.
9. Can language difficulties affect the assessment?
Yes. Record the language used, your level of understanding, requests for an interpreter and the support actually provided. Note whether a relative translated and whether technical explanations were understood. The issue is how communication and decision-making were supported in the circumstances, not an assumption that every consultation without a professional interpreter is negligent. Preserve relevant booking messages and forms so the facts can be checked.
10. What if I was in pain when I agreed to treatment?
Pain is a relevant circumstance but does not automatically mean you lacked capacity or could not consent. Describe its severity, medication, timing and any difficulty engaging with the discussion. The records may show earlier conversations or an urgent clinical situation. An adviser may need medical evidence about your ability to understand and decide at the relevant time, rather than relying on a general assumption about pain.
11. Does McCulloch mean doctors can choose which risks to disclose?
McCulloch addresses the professional assessment of which alternative treatments are reasonable. It does not replace the patient-focused approach to material risk disclosure established in Montgomery. Keep the two issues separate in your account: whether an option should have been treated as reasonable, and what information should have been shared about the recommended treatment and reasonable options. Expert evidence may be needed for the first question.
12. What if I discovered another treatment on a private clinic website?
Save the information and its date, but do not assume the advertised treatment was suitable or available when you made your decision. Ask the adviser what evidence would establish its relevance. The provider may have advertised a different patient group, technique or period of care. A clinical assessment is usually needed before treating a later-discovered option as a reasonable alternative that should have been discussed.
13. Can I complain even if I would have made the same decision?
Yes, a concern about communication can be raised even where a compensation claim may face a causation difficulty. A complaint can seek explanation or improvement without establishing all the elements of a damages claim. Be clear about what you want answered and preserve the response. Obtain separate advice about legal time limits if compensation is also being considered, because complaint handling does not automatically protect them.
14. Is consent to a procedure consent to negligent performance?
No. Agreeing to the inherent risks of a treatment does not give permission for care below the legally required standard. However, the occurrence of a known complication does not itself prove negligent performance. Record the communication concern separately from any allegation about technique or aftercare. Different medical evidence may be needed to determine whether the injury resulted from an accepted risk, negligent treatment or another cause.
15. What if I cannot remember the conversation at all?
Say so openly. The assessment may draw on consultation records, forms, written information, witnesses and the wider treatment sequence. Do not fill gaps with what you now think must have happened. Explain any reason memory is limited, such as time elapsed or medication, without claiming more than you know. An honest lack of recall is different from positive evidence that a warning was not given.
16. Can personal plans make a risk more important?
They can be relevant where they help explain the patient's position and what the clinician knew or should have known. Preserve evidence of plans raised before treatment, such as work requirements, caring responsibilities or a particular activity. Explain their practical significance without exaggeration. A later change in priorities may be understandable, but the legal assessment of the original discussion focuses on the circumstances at that earlier time.
17. What if the procedure changed after I signed the original form?
Record the original plan, the change, when you were told and any further discussion or agreement. Obtain the operative record and all versions of the consent material. There may be clinical reasons for a change, but the scope of the authority given and the circumstances require examination. Do not assume that one signature automatically covers every possible procedure or that every change necessarily creates a claim.
18. Should I ask the treating clinician to rewrite the consent note?
Do not ask anyone to retrospectively create a record of a discussion that did not occur. If you believe a factual entry is wrong, identify the disputed point and request that your concern is recorded through the appropriate process. Preserve the original and any response. A later clarification can be useful, but it should remain distinguishable from a contemporaneous note of the treatment decision.
19. What financial loss can follow a successful consent claim?
The assessment concerns losses legally attributable to the injury caused by the relevant failure, subject to evidence and applicable principles. It is not a payment simply for an incomplete conversation. Keep records of additional treatment, earnings changes, care and expenses, while allowing for the underlying condition and other causes. Prognosis and the realistic alternative treatment path may affect which consequences can properly be included.
20. What should I ask a solicitor at the first consent-related appointment?
Ask which alleged omission is legally relevant, which records are missing, whether expert evidence is needed on reasonable alternatives, and how your likely decision and causation will be assessed. Discuss urgent dates and the cost of each proposed stage. Confirm what work, if any, has been accepted. A useful appointment should produce a defined evidence plan rather than a promise based solely on the fact that a risk occurred.
