Patients choosing doctors

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.

Governments encourage patients to believe they have choice, which may extend to the identity of their surgeon. Irrespective of whether this choice is illusory, patients often negotiate this system successfully. The benefits of enabling a patient to choose her surgeon; who is, in turn, pleased that the patient should single them out as a preferred choice, seem self-evident.

Such was the case with Mrs Jones. Suffering from back and claudicating thigh pain, she sought help. After a caudal epidural failed to relieve her symptoms, a local surgeon, Mr C, with a good reputation for spinal surgery was recommended. They met, and she agreed to undergo a bilateral micro-decompression.

As it turned out, Mrs Jones’ surgery was to be performed by another surgeon. She was told of this on the morning of the operation. Regrettably, she sustained an intra-operative injury to her cauda equina, giving her serious chronic neurological injury.

In subsequent litigation, Mrs Jones asserted that if she had been told before the day of surgery that she was not going to be operated upon by Mr C, she would not have provided consent.

There were uncertainties and inconsistencies in the evidence of who said what, and when. Nevertheless, the court found that Mrs Jones only learned that Mr C would not be performing the operation ‘when effectively she was about to go into theatre’. Expert surgeons providing evidence for both sides agreed that her decision was taken ‘so far down the line’ that it was unlikely to have been taken freely. The court agreed, and accordingly found that the Trust was in breach of its standard of care for obtaining consent.

Previous courts have held that patients have a right to make an informed choice as to whether, and if so when and by whom to be operated upon. The General Medical Council is not so explicit; instructing doctors to disclose to the patient information about ‘the people who will be mainly responsible for… their care, what their roles are’.

This is not a case that establishes for the patient a right to be operated upon by a particular surgeon; it does no such thing. An NHS patient can no more insist on the services of an individual doctor than they can insist on a particular treatment. The case of Mrs Jones does not explore what she would have done after her hypothetical refusal of consent if she had then been faced with yet another surgeon who she had not chosen. Suppose the chosen one had meantime left the Trust, or retired? Would persistent symptoms have driven her to the pragmatic choice of an alternative surgeon?

This is a case about the timing of disclosure. To ensure that patients are free to withhold their consent if they choose, for whatever reason, they should receive the relevant disclosures whilst free from the coercion of circumstances. If Mrs Jones discovered the identity of her surgeon whilst on a trolley, in an inadequate gown, rolling towards the theatres; she was vulnerable to coercion. This case therefore also reminds us how important is the judge’s evaluation of the unique evidential circumstances (and of the claimant) before them; leading to an outcome no more predictable than that emerging from consultations between patients and their doctors. Quite at what point circumstances coalesce to coerce the patient, preventing them from making a free choice, remains to be seen; as does the influence this decision will have on future cases.

Judges will not answer unasked questions. No one (in Jones) asked the court whether it was practicable to ensure that all patients awaiting surgery in England are told in a timely fashion the name of their surgeon, nor the implications that this would have for, amongst other things, the flexibility of operating lists, and for training surgeons. If this decision was followed, Trusts would have to create a ‘metric’ ensuring that their standards for the timing of disclosure were reasonable. This is not a measure of quality yet widely addressed in the NHS, nor presumably one for which funds have been allocated.

Robert Wheeler
Department of clinical law