Consent for surgery

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.

A recent judgement explores the practicalities of obtaining valid consent for surgery, and exposes some difficulties in that process. The case related to a woman (Mrs T) presenting with leg pain caused by the prolapse of an L4/5 intervertebral disc. It was agreed that expectant management would have probably resulted in resolution of her symptoms, but that this resolution could have been accelerated by discectomy. Regrettably, after competently-performed surgery, Mrs T nonetheless experienced disabling leg pain, arguably consistent with injury to the L5 nerve root. She also experiences altered sensation which is said to be consistent with injuries to S2 and S3 nerve injuries.

The court found that the surgeon overstated the likelihood that she would enjoy a symptomatic improvement as the result of surgery. In addition, that the surgeon emphasised an eradication of pain rather than acknowledging to the patient that amelioration would have been a more realistic expectation. The option of having no surgery was in Mrs T’s case a very important alternative to surgical intervention, and the court accepted that she was aware of this from conversations with her surgeon. By contrast, the detailed written information was found to be unreasonable. The letter describing the potential complications of the forthcoming operation risked confusing the patient that the expectant approach was of no real significance, or that it had been superseded by the requirement for an operation as the only option.

It was agreed that the surgeon did not advise Mrs T of the inherent risk (up to 5%) that any procedure could exacerbate her condition, despite disclosing less frequently occurring risks. Again, omission of this disclosure was found to be highly relevant when compared or contrasted with the alternative of no operation, with the likelihood of gradually receding pain and ultimately recovery within 12 months.

The court noted that the routine meeting between Mrs T and her surgeon on the day of operation allowed both to ensure that they remained committed to its performance.

By contrast, in an aside not relevant to Mrs T’s claim, the court asserted generally that the routine meeting between patient and surgeon on the day of the operation is ‘…neither the place nor the occasion for a surgeon for the first time to explain to a patient undergoing elective surgery the risks and benefits’. This represents rare High Court advice to clinicians who are considering new disclosures on the day of surgery. The reasoning behind that advice was based on the judicial observation that ‘on the very cusp of the procedure’, both surgeon and patient are distracted. The surgeon by pressure of time, and the patient by their psychological commitment to proceed: ‘There is a mutual momentum towards (elective) surgery which it is hard to halt; no adequate time and space for a free choice and sensible dialogue to take place’.

The court found that objectively, the reasonable patient in Mrs T’s position would (following the necessary disclosure) have either rejected surgery or sought a second opinion. Subjectively, taking her evidence into account, the court concluded the same thing. Similarly, if Mrs T had sought a second opinion, the reasonable advice that she would have obtained would have led her to refuse surgery. The court also explored the extent to which subjective factors relating to the patient that the surgeon is dealing with are relevant. The starting position is the test in Montgomery; whether, ‘…in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk’. This combines the objective standard of the reasonable patient with the subjectivity of the person in the particular case. The judge identified characteristics which may not be self-evident in a clinic, such as a patient’s ability to deal with pain, or their need to continue employment, or a coincidental crisis such as divorce or bereavement. In addition, implications for mobility and treasured sports and hobbies. To this could be added difficulties with their dependant children’s education or impending homelessness or prosecution. Any of these may render a normally-resolute person temporarily more fragile, and in turn, less willing to run a risk.

The great difficulty for clinicians is how they might enable the patient to scrutinise these subjective factors during their decision-making for surgery. Rather than only consider them following surgical misadventure, and reflect that on the basis of their situation, they would not have run the risk in the first place. Whilst these intensely personal aspects of a patient’s life remain unknown to the surgeon, it would seem unjust to expect him or her to appreciate the ramifications that foreseeable risks of surgery may have for the patient. It remains to be seen how far the English courts will go in allowing claimants to dress the reasonable person in their particular clothes.

Robert Wheeler
Department of clinical law, January 2018