Consent – beware gaps in evidence

Published 8 February 2018

A recent Judgment in favour of a Claimant has highlighted the significant risk that consent cases pose to healthcare providers, surgeons and their insurers.

Judgment was handed down in the matter of Hassell v Hillingdon Hospitals NHS Foundation Trust [2018] EWHC 164 (QB) on 6 February 2018. The Claimant was awarded £4.4million in damages, on the basis that she did not give informed consent. Allegations relating to the performance of the operation itself were not successful.

Background

Mrs Hassell underwent a C5/6 decompression and disc replacement on 3 October 2011, performed by Mr Ridgeway. She unfortunately suffered a spinal cord injury during the operation and became tetraplegic as a result.

Mrs Hassell alleged that she was not told that the operation carried a risk of paralysis, and that alternative conservative treatments were not discussed prior to the operation. Her case was that if she had been told about the risk of paralysis she would not have undergone the operation.

Law on Consent

Following Montgomery, more claims on consent have found their way to trial, some due to disputes of fact and some grappling with the issue of whether a patient was informed of the "material risks" of treatment. We reported on the further guidance given to this in the decision of Webster.  It was not contested that the risk of paralysis was a risk that should have been discussed in this case.

Consent Evidence

The Court heard evidence from both Mrs Hassell and Mr Ridgeway. In his Judgment Mr Justice Dingemans ultimately listed 7 reasons why he accepted the Claimant's evidence that she had not been told about the risk of paralysis. These included inconsistency between oral evidence at trial and earlier witness evidence, and gaps in the contemporaneous written records (and web-site).  By way of an example, although the surgeon's practice was to dictate the clinic letter whilst the patient was in the room, and also refer the patient for further information at his website, on the facts neither the clinic letter nor the website expressly mentioned the risk of paralysis. 

From this particular decision, clinicians, providers and their Insurers can take away several lessons:

1. The need for a clear understanding by the surgeon of the 'dialogue' required under Montgomery.
2. The utmost desirability for consistent witness evidence.
3. Where letters following a clinic appointment are sent, they should be sufficiently specific as to the risks discussed, and clear and bespoke to the patient.
4. Similarly, where websites or other information sources are used to explain the risks, they need to detail the risks of the operation (and be regularly reviewed).

Comment

It is clear that consent cases continue to present significant difficulties for healthcare professionals. It continues to be vitally important that the discussion of the risks of treatment should be documented accurately in the medical records. Referring to a website to detail the risks of an operation can be a useful aid, as it can give the patient time to consider his/her options in further detail, but this can later prove problematic if that website does not list the risk in question.  Sensible risk management should involve a regular review of any literature and websites supplied, to ensure they are comprehensive and up to date.