Update to main text para 1.25 fn3, page 18:
For guidance on consent see the Royal College of Surgeons’ Consent: Supported Decision-Making – a good practice guide: which notes:
‘The surgeon discussing treatment with the patient should be suitably trained and qualified to provide the treatment in question and have sufficient knowledge of the associated risks and complications, as well as any alternative treatments available for the patient’s condition’
and addresses the particular difficulty of referral between specialties as follows:
‘There is a particular risk with patients being transferred between specialties. Patients can come to harm when there is lack of clarity about which doctor is responsible for the management of the patient. When a surgeon refers a patient for another procedure (eg interventional radiological procedure), it is the referring doctor who should formally hold the first part of the consent discussion and document it, as they understand the risks and benefits of the proposed options and any alternatives (including doing nothing) and can discuss these with the patient. The final confirmation of informed consent remains the responsibility of the doctor who will carry out the procedure.’
See also: Association of Anaesthetists of Great Britain and Ireland: Consent for anaesthesia 2017. Importantly, it recommends:
‘Information about anaesthesia and its associated risks should be provided to patients as early as possible, preferably in the form of an evidence based online resource or leaflet that the patient can keep for future reference. Those undergoing elective surgery should be provided with information before admission, preferably at pre-assessment or at the time of booking, but the duty remains on the anaesthetist to ensure that the information is understood.’
And:
‘Immediately before induction of anaesthesia, for example in the anaesthetic room, is not an acceptable time to provide elective patients with new information other than in exceptional circumstances.’
Update to main text para 1.26 fn9, page 20:
See also Crossman v St George’s Healthcare NHS Trust [2016] EWHC 2878 (QB) HHJ Peter Hughes QC: claimant suffered radicular nerve root injury during operation: the expert evidence was that risk of this was less than 1% and is probably of the order of 0.5%. The case is also interesting for its (obiter) discussion of legal causation: a modification of conventional causation principles was rejected.
Update to main text para 1.27 fn1, page 20:
See also the Scottish decision R v Lanarkshire Health Board [2016] CSOH 133; 2016 G.W.D. 31-556 which considered consent in the context of the two alternative approaches to the management of a labour which had been open to an obstetrician assessing a baby in the womb with suspected hypoxia/asphyxia: the first on the facts of the case was to proceed to immediate assisted vaginal delivery; the second was to obtain fetal blood samples (and, providing these were satisfactory, proceed to stage two of delivery). Lord Brailsford determined that these two alternatives should have been explained to the labouring mother – along with the risks associated with each. Had this been done the mother ‘would have been provided with sufficient information to permit her to make an informed choice as to which course she opted to take.’ The fact that this approach was not taken placed the case “within the ratio of Montgomery” and the pursuer succeeded on that aspect of case. It is interesting to contrast this with Tamsin v Barts Health Trust [2015] EWHC 2135 (QB) [main text para 1.21 fn 9] in which it was stated on the facts of that case that the clear expert evidence was that offering Caesarean section as an alternative to foetal blood sampling was not good practice. Jay J also stated there that: “A risk of 1:1,000 is an immaterial risk for the purposes of paragraph 87 of Montgomery.” (§§115 and 118)