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Patient’s Rights Revisited

In recent years there has been a gradual shift away from a “doctor knows best” model of care towards a patient-directed approach, of which informed consent is an important feature. Continuing the trend, propelled forward by this year’s decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11, again consent has come to the fore in Kathleen Jones v Royal Devon and Exeter NHS Foundation Trust [2015].

As a preface to this case note, the following from the Department of Health guide to consent for treatment (quoted in the judgment itself) is worth bearing in mind:

“The seeking and giving of consent is usually a process, rather than a one-off event. …Clinicians should then check, before the procedure starts, that the person still consents. If a person is not asked to signify their consent until just before the procedure is due to start, at a time when they may be feeling particularly vulnerable, there may be real doubt as to its validity.”

Mrs Jones suffered from a central spinal canal stenosis which was due to a bulging disk in her lumbar spine. After trying physiotherapy and an epidural injection, she saw Mr Chan, a highly regarded Consultant Orthopaedic Spinal Surgeon at Exeter hospital to discuss her treatment options and elected to undergo bilateral decompression surgery by him. Mrs Jones was then put on a waiting list to have the operation performed by Mr Chan. After having to cut her holiday short due to pain, Mrs Jones saw her GP for advice on whether it was possible to bring the operation forward, which would necessitate a different, more junior surgeon, however her GP strongly advised her to wait for Mr Chan to become available. Mrs Jones knew several people who had been operated on by Mr Chan and followed her GP’s advice to wait for him to perform the operation.

Contrary to the defendant’s contention that consent for the operation to be performed by Mr Sundaram was obtained several days before when Mrs Jones signed the operation consent form, the judge found for the claimant: Mrs Jones was informed by a nurse on the day of the operation, just prior to going into theatre, that unfortunately Mr Chan was not available and a Mr Sundaram would be performing the surgery. Clearly, after her husband had dropped her off and she was in her hospital gown, Mrs Jones felt that she was “beyond the point of no return” and accordingly saw through the operation.

It was important evidence that the claimant went to see her GP about bringing her operation forward, but declined on advice in order to wait specifically for Mr Chan. This substantiated the judge’s finding that had Mrs Jones known in advance that Mr Chan was not going to perform the operation, she would not have consented to the procedure being performed by another surgeon. A key part of the judgment is at para 35 where the judge referred to Chester v Afshar [2004] UKHL 41:

“I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether and if so which and by whom, to be operated on. Patients may have, and are entitled to have, different views about these matters.
… For some the choice may be easy – simply to agree or to decline the operation. But for many the choice will be a difficult one, requiring time to think, to take advice and to weigh up the alternatives.”

This crucial choice: time seek advice and weigh up her options was not afforded to Mrs Jones.

Unfortunately the operation did not go without complication and Mrs Jones has been left with Cauda Equina syndrome due to a tear in the dura which caused severe damage to several nerve roots. Her damage is permanent and disabling: she suffers from considerable pain, bowel and bladder dysfunction, backache, numbness and very poor mobility. Although the judge did not accept that the surgeon had been negligent in his conduct of the operation, he accepted expert evidence to the effect that there is a much lesser risk of such complications occurring where the surgery is carried out by a more experienced surgeon therefore it was “more likely than not that Mrs Jones would not have suffered the injury had her operation been performed by Mr Chan”.

Although only a county court decision, this demonstrates the wide-reaching applications of Montgomery and how the patient’s right to be fully informed is not a hollow one, but one which the courts are prepared to back up by awarding damages where medical professionals fail to fulfil their duty to inform of all issues that are material to that particular patient.

By Katie McFarlane, Medical Negligence team.