Aspects of disclosure

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

In a recent case, the Court of Appeal distinguished clearly the clinician’s role in identifying the risks and complications inherent in an intervention from the patient’s role in deciding which risks she is willing to run. The distinction is important, since the patient’s choice may be influenced by considerations that are not ‘medical’.

Mrs Duce, 41, had presented in 2008 with gynaecological symptoms including lower back pain. She sought a total abdominal hysterectomy to resolve these. Her family doctor had noted her insistence, notwithstanding that this involved major surgery with associated risks. She wanted it ‘all taken away’. Gynaecologists initially recommended less invasive management of her symptoms, but in a review clinic three weeks later the patient again confirmed that she would not consider preliminary alternative treatments, only then to find they had failed.

In preparation for surgery, the risks and complications of total abdominal hysterectomy and bilateral salpingo-oophorectomy were disclosed, including the risk that the operation might not relieve the pains with which she presented. But the surgical registrar who dealt with the consent accepted that she would not in 2008 have disclosed that there was a risk of developing chronic and/or neuropathic pain as a result of the surgery. She would merely have warned of transient post operative pain.

Following surgery, Mrs Duce suffered abdominal wall pain that was ‘significantly different’ from her pre operative symptoms. Experts in pain management agreed that her subsequent course was consistent with chronic post-surgical pain. Mrs Duce claimed that if she had been warned of the risk of nerve damage and chronic post surgical pain, she would not have proceeded with the surgery.

The court heard that the Royal College of Obstetricians & Gynaecologists' guidance in 2009 (which it was agreed would cover best practice in 2008) recommended the disclosure of the likelihood of ‘...numbness, tingling or burning sensation around the scar…that could take weeks or months to resolve’. But the judge noted that neither chronic nor neuropathic pain was referred to in the guidance, and that the claimant and defending expert witnesses in gynaecology agreed that chronic post-surgical pain was not common knowledge amongst gynaecologists in 2008.

Accordingly, the court found that since the reasonable gynaecologist in 2008 would not have been aware of chronic post-surgical pain founded on nerve injury during total abdominal hysterectomy; there could not have been a duty to disclose that risk during the process of obtaining consent. For these reasons, amongst others, Mrs Duce’s claim was dismissed.

The case serves as a powerful reminder that the clinician must set out risks to which a reasonable person in the patient’s position would attach significance, or risks to which the doctor is or should be aware that the patient would be likely to attach significance. By contrast, it is only the patient who can then choose whether to run these risks. This choice is not one that a clinician can anticipate for the patient, since only the patient can bring into the consideration all other aspects of their life that may have a bearing on their decision.
But in the same breath, it is equally acknowledged by the courts that the task of identifying those risks which foreseeably result from an intervention is one for the clinician, in this case the gynaecologist. If, as in this case, the complication that crystallised was not at the time of disclosure for consent a recognised association of hysterectomy, it would have been unjust to expect the doctor to have mentioned it.

Robert Wheeler
Department of clinical law
January 2019