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Duce and informed consent

Medical negligence solicitor Matthew Westlake looks at a recent case on informed consent

Consultation with doctor
Matt Westlake is a solicitor in the clinical negligence department, working with partner Suzanne White. You can follow Mattthew on twitter on @westlake_matt
The case of Montgomery v Lancashire Healthboard [2015] was a landmark ruling which illustrated the Court’s growing appreciation of patient autonomy in modern society. The case set a precedent ensuring that clinicians are to “take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments”. 

The Court was asked to revisit the issue of informed consent earlier this year in the case of Duce v Worcestershire Acute Hospitals NHS Trust [2018].

Facts of the case

Mrs Duce underwent a total abdominal hysterectomy in 2008. Prior to the procedure a discussion had taken place between Mrs Duce and her surgeon where warnings had been provided as to the risk of pain following the procedure. However, during the course of proceedings it was accepted by the surgeon that she would not have warned specifically of the risk of Chronic Post-Surgical Pain (CPSP), which Mrs Duce later went on to develop. A claim was subsequently brought for the failure to warn of this risk and so to obtain properly informed consent. 

Decision of the trial judge

The trial judge found that CPSP in this setting had not been common knowledge amongst surgeons in 2008, and as such it could not be held that there was a duty on the surgeon to have warned Mrs Duce of this specific risk. In addition, the trial judge found that it was more likely than not that Mrs Duce would have undergone the operation when she had, regardless of whether she had been warned of the specific risk of developing CPSP. 

Grounds for appeal

It was alleged by Mrs Duce that the trial judge had erred in applying the test set down in Montgomery v Lancashire Healthboard. The questions to be asked were said to be twofold: i) what risks were or should have been known to the medical professional in question? and ii) were those risks material? 

In addition, it was alleged that the trial judge had failed to apply an additional test set out in the case Chester v Afshar, which (it was submitted) circumvented the need for a Claimant to prove that an injury  would have been avoided ‘but for’ the negligent act, in cases concerning informed consent. 

Decision on appeal

The Court of Appeal unanimously dismissed the case. 

As to the first ground, the Court found that Mrs Duce had failed to establish that the surgeon knew or ought to have known the risk of CPSP at the time of the operation. As a result the question of whether or not the risk was material in this setting was of no consequence.

As to the second ground, the Court was unwilling to find that the decision in Chester v Afshar had negated the need for Claimants in such cases to establish that ‘but for’ the negligent act an injury would have been avoided. 

Conclusion

The decision in Duce is evidence that whilst the Court is now showing a real willingness to place emphasis on patient autonomy, there has not been a complete departure from traditional principals in the area of informed consent. In particular, it cannot be expected for knowledge of present day risks to be applied retrospectively, nor can it be expected for the need to prove the causative effect of the negligence to be dispensed with. 

Case study

A separate but related issue in cases of consent concerns the timing and circumstances of the discussions.

In a recent case in which we represented the Claimant, a detailed birthing plan had been recorded within the Claimant’s medical records, which noted that the Claimant was particularly anxious about instrumental deliveries and wanted to avoid one at all reasonable costs. Notwithstanding this, at no point during the antennal period was she referred to a consultant obstetrician to discuss her birth plan and concerns, nor was the option for an elective caesarean section ever discussed. 

During labour the fetal heartrate became bradycardic. The Claimant was told that a caesarean section would be difficult in the circumstances and that an assisted delivery should be attempted. She was given a consent form titled ‘Consent for Non-Elective/Emergency Caesarean Section’ with the words ‘trial of instrumental vaginal delivery’ handwritten underneath. The Claimant’s husband had to print her name as her vision was so blurred from crying. At no point was there a discussion about the risks of an attempted instrumental delivery, nor that it could fail. 

Following four attempts with the forceps, instrumental delivery was abandoned and a decision to perform a caesarean section was taken. Unfortunately, both the Claimant and her baby had suffered injury from the attempted forceps delivery. 

Following the incident a midwife recorded in her statement that she felt that the doctors had not given the Claimant the choice or the time to make a decision, and that there had not been adequate time to read the consent form properly. 

The claim was eventually settled following service of proceedings.

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