Consent and Ethics: Adults

Rodney Crossman v St George’s Healthcare Trust [2016]

Mr Crossman had degenerative cervical spine disease and had neck pain and paraesthesia. A neurosurgeon advised three months physiotherapy with a follow-up clinic appointment.
However, Mr Crossman was also listed for surgery inadvertently, and received appointments for pre-operative assessment and an operation date. He attended the pre-assessment appointment as he had been informed that he could lose his place in the waiting list if he did not.

At pre-assessment he was advised of perioperative risks, and issues related to his warfarin treatment. He was asked whether he really wanted to go ahead, and he clearly stated that he did. He went forward to surgery, after which he unfortunately emerged with a nerve root injury.

Mr Crossman won damages by claiming that the original treatment plan had not been followed. The operation had not been performed negligently, but he argued that his accidental listing for surgery led to his complications. Although his consent process included discussions of these risks, the court found that his consent was pressured by having his surgery scheduled much sooner than he was expecting. The court also thought that Mr Crossman did not have a duty to question the hospital’s erroneous discussion to schedule him prematurely for surgery, i.e. he was not contributory.

Hassell v Hillingdon Hospitals [2018]

Mrs Hassell was a 41-year-old secondary school teacher, with a history of spinal disease. She had previously had decompression and fusion surgery to her lumbar spine, but had developed new problems of pain and paraesthesia in her left arm. She saw a spinal surgeon, who arranged an MRI scan. This showed a disc lesion with some spinal cord compression. She was advised to have a cervical discectomy procedure with fusion or disc replacement.  There was dispute as to what risks were explained in clinic, and the surgeon wrongly believed that Mrs Hassell had already received physiotherapy. Mrs Hassell signed her consent form on the day of surgery, which included ‘cord injury’ as a risk. She was placed earlier on the list than she had expected, and felt hurried to proceed. She unfortunately emerged from surgery with tetraparesis, and a severe lasting disability.

She was awarded damages of £4.4m, by successfully claiming that she had not been adequately warned of all the risks of surgery, and had not had time to consider alternatives. The judge decided that had she been fully warned of the risks, particularly tetraparesis, she would not have proceeded with surgery.

Her surgeon could not demonstrate that he had warned her of these complications, and his assertion that these risks would be shared as ‘usual practice’ was not accepted as evidence. Although spinal cord injury had been listed on the consent form, the fact that this had been signed on the day was also seen as allowing insufficient time to consider this adequately.

Key themes

Both these cases demonstrate how courts are applying the principles of the Montgomery judgment to disputes over consent. Failures in consent are also increasingly used as a route to recover damages for complications, rather than claiming that a procedure was negligently performed.

• Patients must have time to consider the risks and benefits of ‘the recommended treatment, and of any reasonable alternative or variant treatments’.  i.e. patients should understand all their options (including having no treatment) very clearly.
• Good communication with patients is critical to establish what treatment they wish, and explain what complications may occur. The dialogue in clinic is the most important part of the consent process, and this should be carefully documented in case of future disputes.
• Doctors cannot refer to their ‘usual practice’ to support an assertion that they warned a particular patient of a given risk. Relying on the practice of other doctors as defence i.e. the Bolam principle, is not valid when judging cases of consent. The information shared will be judged according to what a reasonable person in this position would want to know and what the particular patient in question would find significant.
• As in Jones v Exeter, (where the patient learnt very late that a different surgeon would be operating),  disclosing information for the first time on the day of surgery does not give patients sufficient time to make an informed, unpressurised decision, and consent can be seen as inadequate.
• Changes in the treatment plan, without proper discussion may also be viewed as placing the patient under pressure to proceed.

References

1. Rodney Crossman v St George’s Healthcare Trust [2016] EWHC 2878 (QB).
2. Hassell v Hillingdon Hospitals NHS Foundation Trust [2018] EHWC 164 (QB).
3. Montgomery v Lanarkshire Health Board [2015] UKSC 11.
4. Jones v Royal Devon and Exeter NHS Foundation Trust (Lawtel 22 September 2015).

Dr Andy McLeod
RCoA Safeguarding Group

August 2018