Candid over complications

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.

When something has gone wrong during clinical management, it is now commonplace to expect that the patient or their relatives will be informed of what it was that went wrong, and what the consequences of this event might be. In this way, the duty of candour imposed by the General Medical Council (amongst other regulators) is fulfilled.

To what extent, if at all, are the ‘complications’ that the patient may endure caught by the same obligation? This is most clearly demonstrated by examples from surgery, although the principles can be applied to other clinical circumstances.

Surgeons are accustomed to disclosing to their patients that the proposed operation may go wrong. The disclosure of ‘bleeding and infection’ are ubiquitous across the land, together with the more specific foreseeable risks, such as damage to contiguous structures, recurrence of the original diagnosis, or inadvertent exacerbation of disease. Failure to disclose these foreseeable complications prior to surgery, particularly if they then maim or paralyse or scar the patient may lead to a claim that the consent was invalid; and that the patient, had they known of the risk, would have either never had the operation, or would have had it performed by somebody else.

Since all of these misadventures are plainly caught by the GMC’s threshold of ‘something going wrong’, they would need to be reported to the patient by the candid surgeon if they crystallise during surgery. Merely because the division of a ureter during hysterectomy appears as a foreseeable complication on a consent form cannot negate the duty to be candid should it occur; it is plainly an example of something going wrong.

This class of surgical complication must be starkly distinguished from the complications of the disease itself, since these are explicitly excluded from the duty of candour. The patient awaiting surgery for her rectal cancer might present with venous thromboembolism. This is a regrettable complication of her disease, but by itself cannot lead to the deduction that something has gone wrong with surgical management. Accordingly, there would be no duty to be candid.

By contrast, the same patient, if arriving thrombus-free for her resection then had a postoperative venous thromboembolism; because the unit’s protocol of 28 days low molecular weight heparin was not prescribed, would certainly be owed a duty of candour. Since something went wrong.

In clinical practice fault is not determinative when considering whether to be candid over the occurrence of a complication. Thus clinicians will wish to ensure that the patient is made aware of events to which she may otherwise remain oblivious; since this information may have an effect on her subsequent decision-making. Accordingly, if something goes wrong which causes a complication, irrespective of whether the’ thing that went wrong’ is indicative of substandard care, our obligation to be candid about the existence of the complication. The question of whether fault has occurred, and whether it has caused the complication is likely to require careful consideration. Clinicians, and those in the hospital who advise them, need to be certain of the facts before being candid, to ensure that they do not mislead the patient when fulfilling their duty of candour. It is likely that candour relating to fault and causation, whilst eventually necessary, may only be possible after an investigation of the event leading to the complication is concluded.

Robert Wheeler
Department of clinical law, 18 May 2016