Not always as straightforward as it seems

One of the many aspects that need to be considered when making a claim against a doctor, nurse or other health professional, is whether or not the patient has given informed consent.  If the patient has not consented to a procedure this could give rise to a claim in negligence against the doctor or hospital or NHS Trust.  Consent generally needs to be specific to the procedure being carried out and the hospitals and surgeons are now very used to having the patient sign consent forms which include a wide range of ‘maybes’ that could happen when a procedure is underway.  Such forms and discussions with the patient detail known risks and that is why it is called ‘informed consent’ – because the patient knows the possible risks and therefore can weigh up the pros and cons of having or not having the treatment or investigation and make a decision based on those factors.  If the patient is not told of the risks and something goes wrong, it may be necessary to investigate whether or not the patient was given enough information to make a decision and give informed consent – so that even if the risks are known, if the patient is not told of them, a claim may succeed against the health professional.

It is usual practice when a patient is having an exploratory operation for the surgeon to ask the patient to consent to certain procedures that may be indicated during the operation so that he can carry them out there and then rather than having to open the patient up again later.

If the patient is anaesthetised under general anaesthetic during the operation, the surgeon has to make decisions based on the consent form he has had signed and the discussion he will have had with the patient prior to the operation and has to consider whether or not he has the necessary consent to carry out any procedure.

However, if the patient is awake, the surgeon is able to discuss the need for a procedure and detail any risks so that the patient can give specific informed consent for him to proceed.

This all seems straightforward: patient is told of risks and complications, patient weighs up the pros and cons and gives consent, surgeon carries out the agreed procedure and considers the need for further procedures and whether or not he has consent to continue, procedures are carried out and hopefully the patient is fine and receives the outcome that was expected.  Sometimes during an operation that seems routine things escalate quickly and the surgeon has to act to prevent loss of life or other poor outcomes that were not foreseen.

But what if the patient withdraws consent part way through a procedure?

In a recent case of Connolly v Croydon Health Services NHS Trust [2015] EWHC 1339 (QB), the Claimant patient alleged that she withdrew her consent in course of an angiogram procedure and that the staff failed to halt it upon her request that it be stopped.  The Defendant NHS trust’s position was that in the course of the procedure the Claimant was found to have a life-threatening condition (occlusion of a main coronary artery, with dissection) and therefore the angiogram was converted to angioplasty.  The evidence was in dispute, the Claimant’s statement that she asked for the procedure to be stopped and therefore withdrew her consent was challenged by the Defendant NHS trust.  The Claimant suffered pain after she said she had withdrawn consent, and her claim for damages was for the pain and suffering she experienced after her consent had been withdrawn.  There was a great deal of evidence produced to the Court regarding the carrying out of the procedure, including a statement from the surgeon to the effect that even if the patient had withdrawn consent during the procedure, at the point that she was alleging she had withdrawn it, the surgeon would not have been able to stop as her condition was life-threatening and he had to take steps to save her life.  In any event, the surgeon and other health professionals in attendance during the procedure all gave evidence to the effect that they had not been aware that the Claimant was withdrawing consent.  In the end, the Judge preferred the evidence given by the Defendant NHS trust and the Claimant’s claim failed.

Clinical Negligence is a complicated field of law.  Things which on the face of it seem simple and seem logical may not be so when you consider the issues in light of the duties and responsibilities of health professionals to patients.  A health professional’s standard of care is weighed against that of a body of his peers, not against that of somebody not similarly qualified.

If you believe you have been poorly treated by a doctor, nurse, hospital or health professional, it is important that you get legal advice quickly.  You have a period of three years from the date you knew or ought to have known of the negligence in which to bring legal proceedings (or three years from your 18th birthday if you were a minor at the time of the incident).  If you would like to discuss a potential claim, contact St Helens Law for free initial advice.

If you would like to discuss a potential claim call St Helens Law on 01744 454433 or contact us through our website.