When I was employed with medical specialist surgeons for 15 years, prior to coming to law, part of my role was to complete the consent and hospital admission forms, liaise with the patient and the hospital to organise surgery, either in the public hospital for public or private patients or in a private hospital, usually as a private patient. The private patients knew that they would be operated on by the Consultant and consented appropriately to this course, at the time of the consultation. However, the public hospital patients would often want Dr X (Consultant) to perform Y surgery, however, mostly it was the Registrar (‘Ghost surgeon‘) who performed the surgery (teaching hospital), under the guidance of the Consultant (who was not always in attendance). Some Consultants would explain their role (Visiting Medical Officer) in the public hospital system, how the public ‘lists‘ ran etc and others would not be so forthcoming. Some doctors would require completion of the consent forms at the time of consultation, to then be sent off to the respective public hospital, others would not ‘sign the patient up‘ (consent given by patient) until the day of the surgery in the public hospital, when the consultant spoke with the patient or otherwise the Registrar obtained consent. Consent is an issue that arises in medical negligence cases, what are some legal and practical tips to assist?
Failure to Warn / Informed Consent
Most clients, when they have an adverse or poor outcome say in hindsight that ‘if I had been told A, B,C I would not have consented to the procedure” or ‘the doctor didn’t tell me about the risks of the procedure‘ and they often want to explore ‘informed consent’ and ‘failure to warn‘ issues. The differences between a duty to warn issue and and an informed consent issue can be explained very briefly as follows:
There is a difference between the amount of information which must be provided to satisfy the duty to warn of risks, on the one hand, and the amount of information required to obtain a valid consent to treatment, on the other. Comprehensive information may be needed to satisfy the duty to warn and thus avoid a finding of negligence, while a valid consent will be established (and the tort of trespass negatived) if the patient has been advised in broad terms of the nature of the procedure to be performed (Rogers v Whitaker (1992) 175 CLR 479 at 490)
A doctor or other health professional must provide sufficient information to a patient in order for the patient to make an informed decision whether to consent to the proposed procedure. Take instructions from your client and obtain the surgeons clinical notes to determine if the patient has been provided with patient information pamphlets from the respective College, for example, RANZOG (Royal Australian and New Zealand College of Obstetrics/Gynaecology) The College’s patient information pamphlets provide up-to-date information that can be discussed with healthcare providers to help the patient make an informed decision about care. Was the advice provided by the specialist consistent with the NHMRC clinical guidelines? For example they include (not exhaustive):
- nature of the medical condition being treated
- details of the recommended surgery
- alternative surgical procedures (if any)
- the success rate of the proposed surgery
- what occurs if surgery is not performed
- general risks of surgery including anaesthetic risks etc
- common side effects and material risks
- further surgery may be required if/when
- possibility of developing X, Y, Z
The pre-prepared materials should not be used as a substitute for ascertaining whether the patient understands the nature of, risks involved in, the procedure or treatment and will not discharge the surgeons legal obligation to provide information to ensure informed consent. A discussion between the surgeon and the patient must have occurred prior to the surgery, whereby the doctor explains any information the patient is unclear about, after reading the provided material. Explanation and informed consent are inextricably linked. These discussion should be noted in the clinical notes of the practitioner as to the scope of the information discussed, involving consent. Its helpful to review the surgeons clinical records on the date of the consult when surgery was organised to determine if there is ‘informed consent‘.
- The scope of the consent given (express or implied) is a question of fact (White v Johnston  NSWCA 18 @ )
- Need to consider all relevant circumstances leading up the surgery and such considerations is not limited to a signed consent form, particularly in cases involving an action for trespass (Bruschett v Cowan (1990) 69 DLR (4th) 743 at )
- The prior signed consent form provides some evidence of consent but likely not determinative without more (Chatterton v Gerson (1981) QB 432)
- The onus of establishing consent is probably with the defendants (Dean v Phung  NSWCA 223 @ ) however, it is not completely settled (White v Johnston (2015) 87 NSWLR 779;  NSWCA 18; BC201500672 at , , ,  per Leeming JA (obiter))
Exceptions to obtaining consent prior to providing treatment:
- emergency situations (immediate treatment necessary and not just convenient)
- necessity (unconsciousness or unsound mind etc)
- statutory or court sanction (which does not extend to non therapeutic procedures apart from tissue transplantation)
A patient who was not ‘informed in broad terms of the nature of the procedure which is intended’ may sue in the tort of trespass [Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625 at 633; 67 ALJR 47; Chatterton v Gerson  QB 432 at 443;  1 All ER 257;  3 WLR 1003 and Dean v Phung  Aust Torts Reports ¶82-111;  NSWCA 223]
Although a failure to provide the patient with adequate information will not usually be treated as vitiating consent, thereby rendering the treatment a trespass, it may be actionable in negligence as a failure to warn the patient of a material risk.
This can involve the non consensual substitution of a surgeon and the failure to obtain informed consent by the patient, for example:
- where there are a group of doctors in one practice who ‘fill in‘ for each other (for various reasons i.e. holidays, sickness, rostering etc) or
- a Registrar performing surgery on a Consultants public hospital list without the surgeon in attendance
Attention needs to be given to the consent form: who is listed as the operating surgeon and informed consent provided to whom after discussion with whom?
Absent consent for another doctor to perform surgery the patient (plaintiff) may have a cause of action in the tort of battery.
In respect to Registrars being under the supervision of the Consultant surgeon; If a patient consents to Dr Q performing the operation (Consultant) and Dr O (Registrar) participates, under the supervision of Dr Q (Consultant), this may not vitiate the consent that had been given to a particular procedure that the patient wished to have carried out. (Walsh v Irish Family Planning Services Ltd  1 IR 496)
However, if the Registrar is performing surgery on a consultants list, without the consultant in attendance (who had been provided consent to perform the procedure/surgery), then an action in battery may be available. An Operation Report can be located in the Hospital Medical Records which will identify the surgeon who performed the surgery.
Failure to warn and informed consent, are issues that arise regularly in medical negligence cases and need careful consideration.
Louise writes a blog for professionals on medical negligence, victims of institutional abuse, mediation, family law and family law arbitration. Why not sign up at http://www.sydneybarrister.net.au so you never miss a post!