Disclosing alternatives for pain relief

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.

Ms Parsons required a right hemicolectomy for cancer. A laparoscopic operation was arranged, and her post operative pain relief envisaged as being provided by epidural analgesia, placed prior to general anaesthesia.

On the day of surgery, three attempts were made to place an epidural whilst she was awake, but regrettably this proved impossible. Ms Parsons was in pain during these attempts, crying and distressed. She was then anaesthetised, and seven further attempts made to place an epidural.

Post operatively, it became clear that during the attempts at unconscious epidural insertion, her spinal cord had been transfixed by the epidural cannula at the level of T11 or 12: Bleeding ensued, a haematoma within the meninges extending to L3 on the right side. The resulting neurological injury was described by the patient as reduced power in her right leg; paraesthesia in her right leg and hip; and a lack of sensation on micturition. She could no longer work as a bartender.

Perhaps inevitably, the case went to court. At the outset, the judge made it clear that prior to the trial, the parties had agreed that the injury to the cord structures was not by itself indicative of substandard care. Equally, that whilst making ten attempts to enter the epidural space was ‘…at the outer limit of acceptability’, this was compatible with reasonable practice.

The remaining disagreement between Ms Parsons and the hospital was whether she had provided consent for the preliminary attempts at epidural insertion whilst she was awake; and latterly, whether consent was provided for the subsequent epidural attempts whilst she was asleep.

In both these instances, the validity of her consent depended upon whether the alternative post operative strategy of patient-controlled analgesia (PCA) had been disclosed to her. The judge found as a fact that whilst the risks and benefits of wakeful epidural insertion had been disclosed, there was a failure to disclose the alternative of PCA as a method of pain relief, together with the risks and benefits entailed in that technique. At the point where it was decided to abandon epidural puncture whilst she was awake, the court found that there was no explanation to her that the epidural would be further attempted whilst she was asleep; and no offer at that stage of the alternative possibility of post operative PCA. Ms Parsons told the court that if consulted at that stage, she would in these circumstances have refused further epidurals and accepted PCA (if the offer had been made).

The court’s finding of fact rested partly on the lack of evidence from the clinical records of the risks and benefits of PCA being discussed with the patient; a lack of records from the morbidity and mortality meeting; and inaccuracies in the account, set out in the letter of candour, which was given to the patient. There had been no attempt to write a ‘…comprehensive post event record’. Furthermore, the judge held that had Ms Parsons been told, after the first three 'wakeful' epidural attempts, that PCA as an alternative form of postoperative analgesia was available, she would have accepted this. She no longer had confidence that her anaesthetist would be able successfully to place the epidural. Since there was agreement that her cord transfixion occurred during one of the seven unconscious epidural attempts, it followed that by choosing post-operative PCA (and refusing epidural punctures whilst asleep) she would have avoided neurological injury.

It is unusual to encounter a judgement where consent is invalidated by the failure to disclose an elementary alternative therapy. In this case, it was not possible for the hospital to produce records to establish that the alternative of PCA, together with its risks and benefits, had been disclosed to the patient.

Notwithstanding working in an era in which the deluge of information is seemingly ubiquitous, clinicians cannot assume that patients are intuitively aware of the therapeutic options available to them.

Don’t ‘take’ consent: Disclose alternatives.
Parsons [2023] EWHC 3115 (KB)

Mr Robert Wheeler
Department of clinical law