Full publication Originally posted on BJM – http://www.bmj.com/content/351/bmj.h3956
Horace Rumpole, the fictional barrister, would often raise a glass to the criminals of England. They kept him busy and paid the bills. Were Rumpole a clinical negligence barrister in practice today he would toast doctors with poor skills at obtaining consent. “Lack of consent” cases form an increasing part of my medical work.
All doctors should now be able to recite the new law on consent, post-Montgomery: “I should take reasonable care to ensure that the patient is aware of any material risks involved in the treatment I’m recommending, and of any reasonable alternatives.”1 2 3
The courts have already applied the new law to a handful of cases. One case in particular, Spencer versus Hillingdon Hospital NHS Trust, merits mention as it relates not to the provision of information before a procedure but after.4
On 1 February 2010 David Spencer, 49, underwent a hernia repair. He was discharged from hospital that same day with a pamphlet entitled “Hernia repair—information for patients.” The pamphlet advised, “If you have any problems following your discharge then please telephone the Hillingdon Hospital switchboard . . . and ask to speak to the Senior House Officer.” The medical staff also told Spencer to report any problems.
As he was not deemed to be at high risk of developing deep vein thrombosis or pulmonary embolism, the hospital staff did not advise Spencer, before his discharge, of the risks of those conditions or of their signs and symptoms.
On 4 February 2010 Spencer started to feel some pain in his calves. He blamed his recent inactivity. On 15 February he returned to work. His calves still hurt, and he was short of breath when climbing stairs. Again, he blamed loss of fitness. On 23 April 2010 Spencer was admitted to hospital with bilateral pulmonary emboli.
The question for the High Court was whether the medical team should have given Spencer information about the signs and symptoms of deep vein thrombosis and pulmonary embolism. The hospital trust’s surgical expert told the court that it was “impossible to either ask or give advice as to every possible complication that can occur after hernia operation or anaesthetic. The list would be huge; furthermore, the patient would not be able to take such a list in.”
The court referred to the Montgomery case and gave a revised test for the provision of information to patients after an intervention: “Would the ordinary sensible patient be justifiably aggrieved not to have been given the information at the heart of this case when fully appraised of the significance of it?”
In Spencer’s case the judge answered yes, and the trust was found liable. Relevant factors in favour of disclosure were the potentially fatal nature of the conditions, their treatability if diagnosed early, the ease with which the information could have been given (orally or in a leaflet), the guidelines on venous thromboembolism of the National Institute for Health and Care Excellence, and the hospital’s policy of treating surgical patients undergoing general anaesthetic with pneumatic boots to reduce the risk of deep vein thrombosis and pulmonary embolism.
The judge also rejected the trust’s attempt to blame Spencer for failing to report his calf pain. The symptoms arose several days after the operation in an area remote from the operation site. Spencer’s belief that the pain was caused by recent lack of activity was reasonable, the judge said.
Academic lawyers and ethicists will doubtless examine the difference between the tests in the Montgomery and Spencer cases. If respect for the patient’s autonomy is the underlying ethical principle, and the information withheld by the doctor may affect the patient’s decision (whether to undergo a procedure or seek medical help), is there logic behind the different tests?
From a practicable perspective, doctors who seek consent should ask themselves what a reasonable patient in the patient’s position, or the particular patient in front of them, would want to know before undergoing the procedure. After the procedure, doctors should ask what an ordinary sensible patient would want to know about what might happen.
Plainly, it would be pointless and unworkable to spend 30 minutes with each patient, listing all the possible complications and the signs and symptoms of each. The judge in that Spencer case suggested that it would have been acceptable to provide the information in a leaflet.
In lectures, doctors have asked me for greater precision in the application of the Montgomery test for consent. Most recently, an ear, nose, and throat surgeon asked whether he should tell a child’s parents of the risk of death from tonsillectomy. The same frustration about the vagueness of the test applies to the Spencer test.
The answer, simply, is that it is a matter of judgment but that the law does not demand the impossible. This is reflected in the language of reasonableness and the “ordinary sensible patient.”
These are vague terms, but this allows for wide application, sensitive to the facts of the situation. Greater precision would help in some contexts but lead to odd results in others.
Doctors are used to making judgments, whether it is a decision to admit a patient or how much tissue to remove in an operation. If unsure about what to tell a patient, the prudent doctor will seek the advice of colleagues. It is an extra burden, but if it saves the life of a patient who would otherwise have died from a pulmonary embolism I will gladly raise my glass to it—to the ordinary sensible patient.
Cite this as: BMJ 2015;351:h3956
Competing interests: None declared.