Consent for a cannula

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 judgement (i) the Court of Appeal reminded clinicians of the vital importance of consent.

A 64 year old lady was lying in the resuscitation room of an emergency department in London whilst an SHO was proposing to insert a cannula into her left arm. This was necessary because she had a suspected fracture of her right humerus. The doctor was concerned that intravenous fluids and pain relief might very soon be required. Judging the injured arm to be unsuitable for cannulation, he wished instead to insert the line on the left; but Ms Border refused, explaining that she had recently undergone left mastectomy and axillary clearance. She had been forewarned by her oncologists of the risks of lymphoedema following infection of cuts in the skin of her left arm. The doctor considered alternative sites of cannulation, including the legs, but due to her general physical condition could not find a suitable vein. In what the court found to be a ‘quick and silent calculation on his part’, the SHO dismissed the alternative sites, and despite the patient’s insistence, without her consent, the cannula was placed in the post-mastectomy left arm. The cannula was not then immediately used for any purpose, as her medication was oral. Lymphoedema nevertheless ensued, causing her chronic disability.

Having heard from expert witnesses (in accident & emergency) for both Ms Border and the Trust, the trial judge had concluded that the SHO had acted in a way that ‘perhaps the great majority’ of responsible A&E doctors would have done, and that the decision to insert the cannula was not negligent. The judge set this out in terms; “... (L)ooking at it from the standpoint of the expert evidence, it would be a brave decision for an SHO not to follow standard practice....that an IV line should, if possible, be inserted in the early stage”.

The trial judge dismissed the claim for damages for clinical negligence, but Ms Border disagreed, and appealed.

The Court of Appeal found that notwithstanding the pressures and anxieties of being a patient in a resuscitation room, during this period the claimant retained her capacity to give or withhold consent. Furthermore, that she gave no consent to the cannulation of her left arm and accordingly, the doctor who chose to insert it breached his duty of care to her.

Those reading the judgement might reasonably question what on earth the SHO was supposed to do in these circumstances. The Court of Appeal provided no assistance with this, although in fairness, courts only answer the questions posed to them, rather than advising generally upon the clinical dilemma that flows as a consequence of the judgement. In finding that Ms Border had capacity to make this decision, the appeal court simultaneously handed patients in her circumstances an unenviable choice, as they lay in that resuscitation bay. Should such a patient take the risk of lymphoedema; or just hope that she did not have to face a hypotensive crisis or intolerable pain without established vascular access.

If the clock could be turned back, the court presumably would expect that instead of cannulating without consent, the doctor would have explicitly laid out this stark choice to his patient. He should have spelt out to Ms Border that cannulation of an adult with capacity in the absence of their consent was not lawful. But equally, that if a patient is considered ill enough to be lying in a resuscitation room, the immediately foreseeable risks of non-cannulation overshadow the theoretical later complications that the needle puncture might cause.

Should, despite this disclosure the patient maintain the refusal, it would be prudent to revisit her capacity, record that transaction and seek another opinion before re-evaluating the situation. But as the court reminds us, consent is required.

(i) Anita Border v Lewisham & Greenwich (2015) EWCA Civ 8 (see in court reports)

Robert Wheeler
Department of clinical law, January 2017