Informed Consent: Risks and Choices

Breach of duty was established and causation followed when the Claimant did not give informed consent to an operation that left her tetraplegic. This case explores the implications of Montgomery v Lanarkshire Health Board [2015] UKSC 11 and the duty on doctors 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.’

Mrs Hassell had been working full time as head of year at a local secondary school and had suffered intermittent joint pain over a number of years. She first consulted Mr Ridgeway, a spinal orthopedic surgeon in 2009. Mrs Hassell alleged that Mr Ridgeway had told her at the consultation that she needed an urgent operation and if this was not done she would be in a wheelchair within a year.

Mr Ridgeway alleged that he concluded Mrs Hassell had nerve root impingement and as she had exhausted conservative management was keen to explore surgery, the risks of which he explained to her. Mrs Hassell underwent surgery on her lower back in June 2009 which improved her symptoms. However, she still had some ongoing problems and was reviewed by Mr Ridgeway in June 2011. At that consultation it was agreed that Mrs Hassell would undergo a C5/6 decompression and disc replacement/fusion operation.

Mrs Hassell alleged at this consultation there was no discussion about treatment options other than surgery. She was told about the general risks of infection and the possibility of a hoarse voice but alleged that she was never told about risks to the spinal cord or paralysis. Mr Ridgeway did not specifically recall the consultation but stated he would have dealt with all the risks including paralysis. Mrs Hassell underwent surgery in October 2011 on the morning of which she signed a consent form. She did not pay attention to what the form said. During surgery Mrs Hassell suffered a spinal cord injury causing tetraparesis and rendering her permanently disabled.

Mrs Hassell complained that Mr Ridgeway did not warn her that the surgery might leave her paralysed nor did he discuss other conservative treatments before the decision to operate was made. She alleged that the operation was negligently performed to cause damage to the spinal cord.

The issues at trial were:

• Whether Mrs Hassell gave informed consent for the operation;

• If not, whether Mrs Hassell would have had the operation in any event;

• Whether Mr Ridgeway carried out the operation in accordance with a reasonable and responsible body of spinal surgeons; and

• If not, whether any failure to carry out the operation with reasonable care and skill caused the spinal cord damage.

Dingemans J found that Mr Ridgeway did use reasonable care and skill in carrying out the operation. Moreover, the judge could not identify the cause of the spinal cord injury on the balance of probabilities as the experts had identified a number of possibilities. However, the judge accepted that Mrs Hassell had not been told about the risk of paralysis as a result of spinal cord injury and was not advised of conservative treatment options. If Mrs Hassell had been given relevant information about the risk of paralysis and conservative treatment options, she would not have undergone surgery. Breach of duty and causation were established on the basis that there was a breach for lack of informed consent and causation followed as a consequence. Judgment for the Claimant was entered in the agreed sum of £4.4 million.

This case highlights the importance of witness evidence surrounding the issue of consent. It will not be enough for clinicians to state their usual practice for discussing risks – they must show that they actually did so. Patients must be given choice – they must be told of the risks of recommended treatment and or any reasonable alternative treatments; signing a consent form on the day of surgery is unlikely to be informed consent; consent forms are only part of the process of advising and providing consent and a signed consent form does not necessarily mean informed consent.

Should you wish to discuss this or any related matter, or to instruct Joanna, please call the clerks on 0117 921 1966.