Defending the sophisticated consent attack

A few weeks ago I spoke on the subject of consent to solicitors who represent claimants in clinical negligence cases. I encouraged them to consider the possibility of invalid consent at the outset of a claim rather than as an afterthought. I told them that I had infiltrated enemy lines, into the trenches that are hospital wards and GP surgeries, and discovered that there is a gap between the lofty ideal of consent, as reflected in the guidance of the General Medical Council and the law, and the gritty reality on the front line.

The next week I gave a talk on consent to clinicians and, as an act of atonement, advised them on how to defend themselves against the very attacks I revealed to the lawyers. There is one sophisticated attack of which readers should be aware.