How do patients benefit from consent?

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.

Mr Watts suffered from leg and back pain, leading him to consult a surgeon. Ultimately, he underwent a competently performed spinal fusion, but was left with increased pain and reduced mobility. Mr Watts claimed in court that had micro discectomy, a less invasive procedure, been disclosed as an alternative approach, he would have chosen that operation, and avoided subsequent pain and suffering.

The court had three questions on which to find fact. (i) Was there a failure to disclose to Mr Watts an alternative approach? (ii) If that disclosure had been made, would Mr Watts have chosen to consent to microdiscectomy? (iii) Would his pain and suffering have been avoided following microdiscectomy?

Leaving Mr Watts to one side for a moment, the failure to describe alternative approaches to treatment (together with their benefits and risks) appear in several different contexts in the common law, noted previously in this column [i].

Marie Whittaker, if told of the option of undergoing no cosmetic surgery to her injured eye, would have avoided sympathetic ophthalmia, and retained her sight. Mrs Pearce, if told about the option for induction of earlier delivery of her sixth child, would have not suffered its loss whilst she awaited the onset of labour. Ms Chester, if warned about the risks of spinal surgery, might have chosen a different surgeon on a different day, arguably preventing her eventual neurological injury. If she had known of the excess risk conferred by invasive imaging, Mrs Birch would have instead undergone an MRI of her cerebral aneurysm: The court found that she would have thus avoided a subsequent stroke. Mrs Montgomery, had she been offered a Caesarean section instead of embarking on vaginal delivery, would have accepted it. In preference to suffering shoulder dystocia, causing her baby a cerebral injury.

In these cases, consent was invalidated by a failure to disclose either a risk or an alternative therapeutic approach. It may never have occurred to any of the doctors involved in these cases that if an alternative had been offered, their patient might have preferred it. Ultimately, the benefit denied each patient was choice.

It is not a coincidence that the only medical activity whose standard is prescribed by the General Medical Council is the process of obtaining consent. No detailed guidance on clinical evaluation, investigation, therapeutics, or surgery is provided by the GMC. For all those activities, we are simply admonished to act reasonably, according to the standard of our peer group. Even where statute intervenes in the Mental Health Act 1983, Human Tissue Act 2004, HFEA 2008, etc...this is almost entirely with a purpose to ensure that lawful consent is achieved in these spheres of medicine. But Parliament, acting through the GMC, is determined to ensure that patients are given the right to choose according to the therapeutic options that lay open to them, including the option to do nothing at all. It is for this reason that the risks and benefits of the proposed treatment, together with the therapeutic alternatives (and their accompanying risks and benefits) must be disclosed. Although it is widely believed that the disclosure of risks and complications acts as some form of before-the-event mitigation for the doctor, that is quite wrong. These elements of disclosure simply attempt to provide the patient with information to make a choice.

If this all seems excessive, consider again Marie Whittaker, and her lamentable cohort. It may also occur to some that in each case '…the wounded patient would say that...but would she really have deferred her surgery, found another surgeon, or opted for the alternative approach?'

Human nature being what it is, that is a fair comment. However, one will never know, unless the relevant information is disclosed prior to seeking consent, as the GMC requires us to do.

The most recent version of the GMC's consent guidance appeared in November 2020. Section 12 notes that doctors should not rely on their assumptions about the information a patient might want or need to make a decision; and s10; that we must disclose this information. This will usually include the potential benefits, risks of harm, uncertainties about and likelihood of success for each option, including the option to take no action. Since the GMC provides this detailed prescription for obtaining consent, we must read it, and follow it.

As it turned out for Mr Watts, the court found that the surgeon, when proposing spinal fusion, failed to identify the reasonable option of microdiscectomy, together with the latter’s advantages and risks. But the second and third elements essential to the litigation were not made out, so Mr Watt's claim was dismissed. The court found that even if reasonable disclosure had been provided, with risks and benefits and alternatives included, it could not be satisfied that Mr Watts would on the balance of probabilities have chosen microdiscectomy. That finding was fatal to the claim, and not reversed on appeal.

[i] Clinical Law for Clinical Practice, 2020, CRC Press.

Mr Robert Wheeler
Department of clinical law