Med. Sci.
Printed
Law ( 1 9 7 9 ) V o l . 1 9 , N o . 1
in Great
Britain
49
•nformed Consent to Surgery MARGARET BRAZIER, LLB, Barrister-at-Law ecturer in Law, University of Manchester
SUMMARY
Thi much*"' '' . ' ' q u e s t i o n of h o w s _ Patient o u g h t t o b e told b e f o r e agreeing t o -|. * In LAU/ Α m a f i - e r .,„ \ „l., F„, ..„f„rr„ „A UahT*' ' 8 d o c t o r s . Only p o t e n t i a l civil > t y is discussed. It is a x i o m a t i c t h a t surgery iu^v* t consent and where no other co present is unlawful. A b a t t e r y is emitted b y t h e s u r g e o n a n d d a m a g e s will b e Ρ yable w i t h o u t p r o o f of injury. 0
c o n s
c
u d
m c n t
o
e r s
n
o
w
f a r
t
h
e
a
Ur
V
1 S
r r
f
r
h i s
bll
c
1
0
u
t
w i t r i o u
C a t i o n
I N
i s
TRODUCT10N
other issues relating to consent such as the patient's capacity to consent and any implica tions of tacit consent to further necessary surgery. In particular I want to see whether per haps from the patient's point of view recourse to the courts in some circumstances may not be more satisfactory for him than a complaint to the Health Service Commissioner. The Commissioner's attitude is exemplified by his treatment of the following cases. The com plainant's husband was not warned that a definite risk of an operation to relieve severe back pain was paralysis of his foot. The Commissioner commiserated with the complain ant but found:
Justification for surgery conducted without ^ n s e n t has been extensively discussed by g g ( 1 9 7 4 ) . Recently, complaints that patients « e left in ignorance of the risks of surgery t o Which they had consented have been heard in country by the Health Service CommissionEvery o p e r a t i o n carries s o m e d e g r e e of risk a n d V h e r than the courts. Indeed, complainants t h e e x t e n t t o which a c o n s u l t a n t e x p l a i n s all t h e nave nf*— · · • "ave nf possible c o n s e q u e n c e s m u s t b e a m a t t e r for h i m that l th P e s s l y told the Commissioner ( S e c o n d R e p o r t of t h e Health Service C o m m i s s i o n e r they did not intend to take legal action. erha 1 9 7 6 - 7 7 , Case n o . W . 1 4 3 / 7 5 - 7 6 ) . P they believed such action would be util - Perhaps they were wrong. The Com- Patients' rights campaigners might well argue that the choice between relief of the pain and tio ° ' sternly criticizing the sterilizan of of aο Λ23-year-old •» . ι ι woman carried ι out. paralysis was one for the patient to make and With not for his doctors. In Canada a court might her consent in the course of an ab well have awarded damages. The facts are not p o r t i o n (Second Report of the Health Service dissimilar to Kelly v. Hazlett (1976), 75 DLR (3d) j^tnmissioner 1 9 7 6 - 7 7 , Case no. W.47/76-77), 536. Mrs Kelly, as a result of rheumatoid tended to the view that, providing the Purpose of surgery and its mechanics are arthritis, suffered from numbness in her hand Plained, that is sufficient to fulfil the and a deformed elbow. Rather against his will, .uirement that the patient gives his informed she persuaded her surgeon to perform not simply an ulnar nerve transplant to alleviate consent. As Diana M. Kloss (1965) remarked the trouble with her hand but also an osteotomy dichotomy between the dearth of English on consent to treatment and the to try to correct the deformity in her elbow. P'ethc The osteotomy, involving fracture and resetting ast ° °^ ' c a n and Canadian cases is of the humerus, resulted in some permanent disc-' ^° P P P stiffness of the elbow and the need for further haIi* °^ ' authorities, but I ç consider once more in the light of recent treatment in the form of manipulation of the nadian decisions the basic principles govern- joint under anaesthetic. The risk of this '"formed consent to surgery. 1 do not discuss occurrence was said to be fairly likely in a bke w
l s
r a t
r
r
ex
r
p
a
s
f
e
n e r
w
n
u
e
0 u t
a s
ex
rea
h e
r a
A m e r
1
s
SS10n
n
0
t
A
m
e
r o
r
c
a
o s e
n
t
o
r e
e a t
n
e
r
50
Med. Sci. Law ( 1 9 7 9 ) V o l . 1 9 , N o . 1
woman with the plaintiff's disease, but by no means inevitable or probable. The Ontario High Court held that in failing to warn the plaintiff of this risk of an osteotomy he subjected her to an injury which, provided with proper information, she might have chosen to avoid. Likewise the English complainant with back pain might have preferred the pain to paralysis but he was given no choice.
tion given to the patient is a matter for clinical judgment alone, providing of course there is no deliberate deceit. I would submit that this is wrong. The possibility of liability for injuries arising from a risk of which the plaintiff left in ignorance by his doctors and might have chosen to avoid was admitted, although the plaintiff failed on the facts, by Denning L. J Hatcher v. Black reported only in The Tirne$< 2 July 1954. The correct principles seem me to be as follows. The surgeon's duty of care to his patient includes a duty to give him careful> accurate advice. Of course the two duties are not severable. Therefore, if the patient is so ϋ' or unstable that warning him of risks or sideeffects must inevitably do him harm, surgeon is excused from giving such warningsThis potential harm includes in extreme cases occasions where the patient on being warned will simply and unreasonably leave the hospitalTo cause the patient such acute distress or to deprive him of absolutely necessary surgery could be in itself a breach of the doctor's duty of care. In normal circumstances, however, the patient is entitled to base his agreement to surgery on full information. The statement i the standard consent form that the nature and effect of the operation has been explained should be fulfilled in the spirit as well as to the letter. So in Ontario Mrs Kelly rightly succeeded as the osteotomy was not vital, the risk °f harm was real and her injuries were caused by her ignorance of the risk of stiffness. In many operations, particularly orthopaedic and cos metic procedures, injury resulting from a risk of which the patient was unaware should be actionable. It is not for the surgeon to decide that a risk of paralysis is worth taking to relieve pain. w a S
i n
1 0
NEGLIGENCE
Some attempt must now be made to set out principles for the guidance of surgeons and patients. First, should a patient sue in negligence he must of course prove negligence, a failure to take proper care. In England as in Canada the duty of care owed to a patient must include a duty to give reasonable advice as well as experienced and competent physical care. It is clear that the everyday risks of any form of surgery, and more particularly anaesthesia, need not be explained to each and every patient. The Saskatchewan Court of Appeal said in Halushka v. University of Saskatchewan et al. (1965), 53 DLR (2d.) 436 that what was required was: a fair a n d r e a s o n a b l e e x p l a n a t i o n of t h e p r o p o s e d t r e a t m e n t i n c l u d i n g t h e p r o b a b l e effect a n d a n y special or u n u s u a l risks.
Presumably this covers not just special risks of the surgery, but, in certain cases, the special risk to a patient of anaesthesia and surgery because of some condition peculiar to him. But a further problem lies in that explaining to the patient potential risks and side effects may cause him at best unnecessary distress and at worst he may refuse vital treatment. One of the few English decisions where a patient sued for damages in respect of a fracture suffered in the course of electro-convulsive therapy to alleviate severe depression occurred in Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 582. The question McNair J. put to the jury, to determine whether the doctor was negligent in failing to warn his patient of the admittedly slight risk of fracture, was:
t h e
n
One further difficulty must be touched onIn Bolam v. Friern Hospital Management CoW mittee (supra) the plaintiff also failed on the ground that he could not prove that his injuries resulted from the lack of a warning of the dangers of a fracture. An action for negligence requires that the plaintiff prove that damag resulted from the negligent act. In Kelly " Hazlett (supra) the judge, weighing the risk against the benefit of the osteotomy, though it likely that the plaintiff would have refused the operation if she had properly understood e
v
Does g o o d medical p r a c t i c e require t h a t a w a r n i n g s h o u l d be given t o a p a t i e n t b e f o r e he is sub m i t t e d t o electro-convulsive t h e r a p y ?
This seems to return us to the stand taken by the Commissioner that the amount of informa
1
Brazier: Informed C o n s e n t t o Surgery l t s
risks. As Diana M. Kloss notes (1965), while American courts have glossed over this require ment of proving that the damage resulted from the relevant negligence in their campaign for * patient's 'right to know', the Canadian courts have hit on the solution. The mind of a > cannot be opened in a courtroom. The « should be: on the evidence available °ncerning the plaintiffs character and attitude *° his suffering would he have been more ikely to refuse to go on with the operation had known of its risks or would he have gone ahead nevertheless? The consequences of potenliability for negligence in failing to obtain " informed consent are touched on later in -e article. e
mar
t e
c
e
l l a l
a
th
BATTERY
Jhe most recent Canadian decision on liability ° mjury in the course of surgery, Reibl v. *ghes (1977), 78 DLR (3d) 35, has more turbing implications for the surgeon. The defendant chief of neurosurgery was held liable battery. He operated on the plaintiff to move build-up of plaque in the left carotid "tery f ^ | e the very ' a l risk of a stroke in later years. What the P'aintiff was not told when he agreed to the °Peration was that the operation itself carried a emulative 10% risk of a stroke and a 4% °rtality risk, ln the course of, or immediately ollowing, the operation, the plaintiff did suffer massive stroke paralysing his right side and £ dering him impotent. The Ontario High °"tt found that a risk of this likelihood and tended by such drastic consequences was °ch an integral feature of the operation that °nsent in ignorance of this risk was no consent *J all. Before examining the chance of Reibl v. ghes being followed in England, the conse quences of an action framed in battery rather , negligence must be noted. The plaintiff airns simply that he suffered an unpermitted 'evasion of his person. According to Kelly v. t t and Reibl v. Hughes the onus of proving P °Per consent is thus thrown on the surgeon. ofessor Street (1976) disagrees, but the only glish authorities are ancient and scant. In fact, the surgeon will of course counter the gation of lack of consent, where the onus Proof lies will only be important in marginal r
H
ls
m
re
a
0
r
m
a
n
at
s
c
u
a n
c
a z l e
r
r
E
n
a
0
le
b r a i n
i n
o r d e r
t o
r e c
U C
51
cases where the tendency in any case may be to give the surgeon acting in good faith the benefit of the doubt. More important if the court is satisfied that the patient's consent is vitiated by his ignorance of the real nature of what was to be done, there will be no need for him to prove that had he had the chance to consent in full knowledge of the potential consequences he would not have done so. If there was in fact no valid consent there was a battery. And whatever injuries resulted from that battery, forseeable or not, will attract damage. The Wagon Mound (No. 1), [1961] A.C. 388 PC restricting recoverable damages to reasonably forseeable injuries is limited to actions in negligence and does not apply to actions for trespass to the person, of which battery is a form. Potentially, the action in battery is a formidable weapon in the hand of an unsatisfied patient. Two obstacles lie in the way of a claim for battery in circumstances similar to Reibl v. Hughes occurring in England. The very basis of the decision is questionable. Providing what is physically going to be done to the patient is explained and he consents how can that exact procedure be regarded as an unpermitted act? In Hegarty v. Shine (1878), 14 Cox CC 145 Miss Hegarty sued her seducer for damages for battery. She alleged that while she consented to sexual intercourse she did so in ignorance that he suffered from syphilis and so her consent was to an act totally different in nature to that which took place. She did not consent to almost certain infection and in fact she and her child were both affected by the disease. The Irish Court of Appeal held that the court's function was not to relieve the plaintiff of the 'loathsome' consequences of her own immorality and further that the plaintiff's ignorance of her lover's disease did not affect the nature and character of the act to which she consented. The court, however, expressly recognized that if in obtaining consent to an invasion of the person facts were concealed which if disclosed would cause the plaintiff to withhold consent, and an obligation, untainted by immorality or illegality, to tell the whole truth can be dis cerned from the circumstances, the plaintiff's consent in ignorance of these crucial facts would be invalid. In the context of this article
52
Med. Sci. Law ( 1 9 7 9 ) V o l . 1 9 , N o . 1
then, the test would be whether the risk or sideeffect not disclosed to the patient was so much a feature of the operation to be performed that consent in ignorance of this factor was not really consent to the operation being proposed. So, in its context, Reibl v. Hughes might be seen as correct. An operation to lessen the risk of a later stroke carrying a 14% risk of an immediate stroke or worse is very different in nature from an operation to relieve that later risk of a stroke attended only by the usual risks of anaesthesia and delicate brain surgery. The insuperable problem, however, is at what stage must a risk or side-effect be consider ed to be so likely or so severe as to transform the entire nature of the surgery proposed? In Kelly v. Hazlett, where liability was found to lie only in negligence, the court said that if the basic nature and character of the operation was substantially that of which the plaintiff had been advised, then there had not been an unconsented-to invasion of the person. Distingui shing collateral risks from risks so integral to the nature of the operation was recognized as a test with practical and, perhaps, policy frailties. These frailties, I suggest, would dis incline an English court from holding that the special risks of a particular surgical procedure were such that they transformed the nature and character of the procedure so that consent in ignorance of the risks was no consent. My view is strengthened by the apparent trend in judicial decisions, as exemplified in Fowler v. Lanning, (19591 1 QB 426 and Letang v. Cooper, [1965] 1 QB 232 CA, to limit the action for battery to deliberate, hostile acts. An English court might well be only too willing to accept the argument of Allan H. McLoid (1957) that battery by a surgeon would be committed only where the surgeon intentionally deviated from the practice agreed to in a manner not intended to benefit the patient. The danger which may lie in wait for an unwary medical profession is that as the law of tort develops mainly through the determination of individual claims, a meritorious claim where a patient has suffered grievous injury because of the materialization of a risk integral to the operation agreed to may sway the court to acceptance of a claim for battery. Faced with such a claim, acceptance of liability for negli
gence and settlement on that basis inight seem to be the safest solution. Yet a snag appears in such a solution, for the surgeon may not have been negligent. Looking again at the facts of Reibl v. Hughes failure to perform the opera tion, leaving Mr Reibl in constant fear and a risk from a stroke, might itself have been regarded as negligent. The decision to operate was probably clinically correct. Was the defers dant negligent when he failed to tell his patient of the special risks of the procedure itself? The patient might well then have refused treatment. There seems to be an inherent contradiction for the surgeon between his duty to treat his patient to the best of his skill and judgment and his duty to give him fu^ and accurate information. Faced with a claim for surgical battery and an allegation that consent was vitiated by the defendant's fail" * to disclose crucial information, the surgeon will be advised to put in a further defence. Medical emergency or necessity is not yet recognized in England and certainly problems arise about the whole concept of treatment without consentWould a court, however, award more than nominal damages if the clinical judgment to operate was reasonable albeit the patient was in a sense misled about the nature of the operation? It would seem better, as Skegg argues (1974), for the issue of necessary medical treatment carried out without the patient's consent to be faced honestly and not by stretching unrealistically the notion of consent-
1
1
CONCLUSION
It must already be clear that I regard the introduction of a class of surgical battery where consent has been given to the procedure described, but the patient is unaware of certain crucial risks, as undesirable. Not only would i be practically an impossible task to identify the risk so integral to the operation as to transform its nature, but as a matter of policy it seems to be wrong for it discards altogether the clinical judgment of the doctor. In principleand thinking in purely lay and commonsense terms, what must be sought is a balance between the right of a sane, adult person to understand the true nature of what is going to happen to him or her, and the inevitable fact that the final judgment must be that of the
{
Brazier: Informed Consent t o Surgery C a
S t a
tha ' ' P
r
o
v
i
d
inf risks" ' Pa 1 °^ 1141
ë
011
^
e
s o
'
u t
'
o n
m
e
a
l S l terms is
t n
e patient with full and accurate ° likely consequences and °P i° should be part and f
S
e r a t
°^ ^
Was
T
^' m
C
s u r
8
n
e o n s
duty ° f
c a r e
-
B u t
>
ω
said above, this duty is not a separate,
distin,'ct obligation, but an inherent element in the duty to treat the patient. So where, in his Judgment, the mental or physical condition of Patient is such that an explanation of what ^ay happen will be detrimental to the patient, n in the circumstances the surgeon does not ^ unreasonably in withholding information. °es this really complete the circle, concluding ' t h the premise originally attacked that the * ° u n t of information given to the patient Pends on the clinical judgment of his doctors one? n i f h e law of tort provides amework within which men conduct their ^lationships, it should be clearly understood *t when exercising his judgment as to what tell the patient the surgeon must bear in d that prima facie it is the patient who °uld decide whether or not to take the benefit "rgery attended by definite risk. ^ Practical consequences of such an attiin * ^ ^ readily assessable by doctors Ptactice than an academic lawyer. That the • on occasion of explaining special is already to some extent understood is rated by another cast from the Health rvi c doulw Commissioner's reports. A surgeon, °ubtful ul of the chances of success of an n a t i o n to remove a Kuntscher nail, inserted e r th complainant fractured her right femur Ger many, refused to operate when the f P n a n t would not sign a special consent ^ "'outlining the effects and possible failure S Procedure (First Report of the Health Hi'/ 'oner 1 9 7 5 - 6 , Case No. W. h j ~ 7 5 ) . The Commissioner found that he con ' l y - Perhaps wider use of special on would be desirable whenever an th '° special risk. The addition to f d a r d form after 'the nature and effect D operation have been explained to one by rj —' of a formula 'the special risks atten tai i ° ° P i o n being...' would only be Pat' concern the vast majority of ^ s , awaiting only standard, safe surgery, ccording to many consultants questioned e
e
w
m
e
0
1
n s o
a r
fr
l n
0
s
n
e
e
m
o
r
e
n
i e
c e
d
aft
e
l n
m
lai
0
ΓΓ
0
e
06
Commiss
7 4
a(
a C t C d
S e n t
e r a t
f
w
o
n
r
s e
m
s
c a r r i e s
e
s t a n
0
e
r/
r
at1i
n t f t e
a t e d
n t
t 0
e r a t
a s
t
53
by the Health Service Commissioner, they did not inform their patients about the risks of an operation because the patients did not ask them. Should one infer then that the ordinary man prefers to entrust himself to his doctors and leave to them the decision as to whether a risk is worth taking? First, an absence of questions to the consultant may arise not from the absence of a desire to know but awe of the person's office and the sudden transposition of the patient from his familiar surroundings to the rather frightening world of a hospital. Second, the risk taken by surgeons in relying on the patient's apparent trust before the operation may prove costly if later events result in an aggrieved patient sueing for negli gence or battery on the lines suggested in this article. And finally, once again a distinction between different types of operations must be made. Just as the reasonable surgeon operating on a malignant growth in an area where surgery itself may be dangerous may be fulfilling his duty of care by not distressing the patient or dissuading him from surgery by explaining the risks, so the reasonable patient may not want to be told of the risks. However, the patient requesting cosmetic surgery, orthopaedic sur gery to relieve pain or halt an arthritic condition or other surgery beneficial but not necessary to saving his life probably would want to choose himself between continuing as he is or taking the risk of worse injury in the course of a cure. One particularly difficult area will always be physical treatment for mental illness. Must a voluntary patient offered electro convulsive therapy or surgery to relieve depres sion or some other psychiatric condition be warned of its risks if any? ln principle, the surgery or therapy proposed clearly falls within the class of intervention to alleviate suffering and not crucial to life. The condition of the patient and his capacity to judge what he is being told must be relevant in the reasonable exercise of the doctor's judgment as part of his duty to the patient. Nevertheless, the risk of, say, loss of memory from electro-convulsive therapy is severe, drastic for professional patients, and once again I would argue that even in the case of mental illness prima facie the patient should be warned of the risks he runs in seeking relief from his condition.
54
Med. Sci. Law ( 1 9 7 9 ) V o l . 1 9 , N o . 1
Finally, an as yet unreported decision of the High Court on 28 July 1978 may mark a move towards the development in England of the duty to give full advice on the nature and consequences of surgery before obtaining the patient's consent. A woman of 35 years was sterilized in the course of a Caesarean section to deliver her second child. Her claim in battery failed on the grounds that she understood and agreed to the proposal to sterilize her. Croom Johnson J awarded her £3000 damages, how ever, holding that while she agreed to be sterilized she had not been given sufficient advice before consenting to be sterilized simul
taneously with the delivery of her child Times, 29 July 1978, p.3).
he
(T
REFERENCES
Kloss D. M. ( 1 9 6 5 ) C o n s e n t t o m e d i c a l treatment' Med. Sci. Law 5, 8 9 . , McLoid A. H. ( 1 9 5 7 ) A reappraisal of liability 0' u n a u t h o r i z e d medical t r e a t m e n t . Minnesota W Rev. 4 1 , 3 8 1 . Plante M. L . ( 1 9 6 8 ) A n analysis of ' i n f o r m e d consent' Fordham Law Rev. 3 6 , 6 3 9 . , Skegg P. D. G. ( 1 9 7 4 ) A justification for medic* p r o c e d u r e s p e r f o r m e d w i t h o u t c o n s e n t L.Q.R- P"' 512. Street H. ( 1 9 7 6 ) The Law of Torts. 6 t h ed. Londo»> B u t t e r w o r t h , p . 19.
Printed
Law ( 1 9 7 9 ) V o l . 1 9 , N o . 1
in Great
Britain
49
•nformed Consent to Surgery MARGARET BRAZIER, LLB, Barrister-at-Law ecturer in Law, University of Manchester
SUMMARY
Thi much*"' '' . ' ' q u e s t i o n of h o w s _ Patient o u g h t t o b e told b e f o r e agreeing t o -|. * In LAU/ Α m a f i - e r .,„ \ „l., F„, ..„f„rr„ „A UahT*' ' 8 d o c t o r s . Only p o t e n t i a l civil > t y is discussed. It is a x i o m a t i c t h a t surgery iu^v* t consent and where no other co present is unlawful. A b a t t e r y is emitted b y t h e s u r g e o n a n d d a m a g e s will b e Ρ yable w i t h o u t p r o o f of injury. 0
c o n s
c
u d
m c n t
o
e r s
n
o
w
f a r
t
h
e
a
Ur
V
1 S
r r
f
r
h i s
bll
c
1
0
u
t
w i t r i o u
C a t i o n
I N
i s
TRODUCT10N
other issues relating to consent such as the patient's capacity to consent and any implica tions of tacit consent to further necessary surgery. In particular I want to see whether per haps from the patient's point of view recourse to the courts in some circumstances may not be more satisfactory for him than a complaint to the Health Service Commissioner. The Commissioner's attitude is exemplified by his treatment of the following cases. The com plainant's husband was not warned that a definite risk of an operation to relieve severe back pain was paralysis of his foot. The Commissioner commiserated with the complain ant but found:
Justification for surgery conducted without ^ n s e n t has been extensively discussed by g g ( 1 9 7 4 ) . Recently, complaints that patients « e left in ignorance of the risks of surgery t o Which they had consented have been heard in country by the Health Service CommissionEvery o p e r a t i o n carries s o m e d e g r e e of risk a n d V h e r than the courts. Indeed, complainants t h e e x t e n t t o which a c o n s u l t a n t e x p l a i n s all t h e nave nf*— · · • "ave nf possible c o n s e q u e n c e s m u s t b e a m a t t e r for h i m that l th P e s s l y told the Commissioner ( S e c o n d R e p o r t of t h e Health Service C o m m i s s i o n e r they did not intend to take legal action. erha 1 9 7 6 - 7 7 , Case n o . W . 1 4 3 / 7 5 - 7 6 ) . P they believed such action would be util - Perhaps they were wrong. The Com- Patients' rights campaigners might well argue that the choice between relief of the pain and tio ° ' sternly criticizing the sterilizan of of aο Λ23-year-old •» . ι ι woman carried ι out. paralysis was one for the patient to make and With not for his doctors. In Canada a court might her consent in the course of an ab well have awarded damages. The facts are not p o r t i o n (Second Report of the Health Service dissimilar to Kelly v. Hazlett (1976), 75 DLR (3d) j^tnmissioner 1 9 7 6 - 7 7 , Case no. W.47/76-77), 536. Mrs Kelly, as a result of rheumatoid tended to the view that, providing the Purpose of surgery and its mechanics are arthritis, suffered from numbness in her hand Plained, that is sufficient to fulfil the and a deformed elbow. Rather against his will, .uirement that the patient gives his informed she persuaded her surgeon to perform not simply an ulnar nerve transplant to alleviate consent. As Diana M. Kloss (1965) remarked the trouble with her hand but also an osteotomy dichotomy between the dearth of English on consent to treatment and the to try to correct the deformity in her elbow. P'ethc The osteotomy, involving fracture and resetting ast ° °^ ' c a n and Canadian cases is of the humerus, resulted in some permanent disc-' ^° P P P stiffness of the elbow and the need for further haIi* °^ ' authorities, but I ç consider once more in the light of recent treatment in the form of manipulation of the nadian decisions the basic principles govern- joint under anaesthetic. The risk of this '"formed consent to surgery. 1 do not discuss occurrence was said to be fairly likely in a bke w
l s
r a t
r
r
ex
r
p
a
s
f
e
n e r
w
n
u
e
0 u t
a s
ex
rea
h e
r a
A m e r
1
s
SS10n
n
0
t
A
m
e
r o
r
c
a
o s e
n
t
o
r e
e a t
n
e
r
50
Med. Sci. Law ( 1 9 7 9 ) V o l . 1 9 , N o . 1
woman with the plaintiff's disease, but by no means inevitable or probable. The Ontario High Court held that in failing to warn the plaintiff of this risk of an osteotomy he subjected her to an injury which, provided with proper information, she might have chosen to avoid. Likewise the English complainant with back pain might have preferred the pain to paralysis but he was given no choice.
tion given to the patient is a matter for clinical judgment alone, providing of course there is no deliberate deceit. I would submit that this is wrong. The possibility of liability for injuries arising from a risk of which the plaintiff left in ignorance by his doctors and might have chosen to avoid was admitted, although the plaintiff failed on the facts, by Denning L. J Hatcher v. Black reported only in The Tirne$< 2 July 1954. The correct principles seem me to be as follows. The surgeon's duty of care to his patient includes a duty to give him careful> accurate advice. Of course the two duties are not severable. Therefore, if the patient is so ϋ' or unstable that warning him of risks or sideeffects must inevitably do him harm, surgeon is excused from giving such warningsThis potential harm includes in extreme cases occasions where the patient on being warned will simply and unreasonably leave the hospitalTo cause the patient such acute distress or to deprive him of absolutely necessary surgery could be in itself a breach of the doctor's duty of care. In normal circumstances, however, the patient is entitled to base his agreement to surgery on full information. The statement i the standard consent form that the nature and effect of the operation has been explained should be fulfilled in the spirit as well as to the letter. So in Ontario Mrs Kelly rightly succeeded as the osteotomy was not vital, the risk °f harm was real and her injuries were caused by her ignorance of the risk of stiffness. In many operations, particularly orthopaedic and cos metic procedures, injury resulting from a risk of which the patient was unaware should be actionable. It is not for the surgeon to decide that a risk of paralysis is worth taking to relieve pain. w a S
i n
1 0
NEGLIGENCE
Some attempt must now be made to set out principles for the guidance of surgeons and patients. First, should a patient sue in negligence he must of course prove negligence, a failure to take proper care. In England as in Canada the duty of care owed to a patient must include a duty to give reasonable advice as well as experienced and competent physical care. It is clear that the everyday risks of any form of surgery, and more particularly anaesthesia, need not be explained to each and every patient. The Saskatchewan Court of Appeal said in Halushka v. University of Saskatchewan et al. (1965), 53 DLR (2d.) 436 that what was required was: a fair a n d r e a s o n a b l e e x p l a n a t i o n of t h e p r o p o s e d t r e a t m e n t i n c l u d i n g t h e p r o b a b l e effect a n d a n y special or u n u s u a l risks.
Presumably this covers not just special risks of the surgery, but, in certain cases, the special risk to a patient of anaesthesia and surgery because of some condition peculiar to him. But a further problem lies in that explaining to the patient potential risks and side effects may cause him at best unnecessary distress and at worst he may refuse vital treatment. One of the few English decisions where a patient sued for damages in respect of a fracture suffered in the course of electro-convulsive therapy to alleviate severe depression occurred in Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 582. The question McNair J. put to the jury, to determine whether the doctor was negligent in failing to warn his patient of the admittedly slight risk of fracture, was:
t h e
n
One further difficulty must be touched onIn Bolam v. Friern Hospital Management CoW mittee (supra) the plaintiff also failed on the ground that he could not prove that his injuries resulted from the lack of a warning of the dangers of a fracture. An action for negligence requires that the plaintiff prove that damag resulted from the negligent act. In Kelly " Hazlett (supra) the judge, weighing the risk against the benefit of the osteotomy, though it likely that the plaintiff would have refused the operation if she had properly understood e
v
Does g o o d medical p r a c t i c e require t h a t a w a r n i n g s h o u l d be given t o a p a t i e n t b e f o r e he is sub m i t t e d t o electro-convulsive t h e r a p y ?
This seems to return us to the stand taken by the Commissioner that the amount of informa
1
Brazier: Informed C o n s e n t t o Surgery l t s
risks. As Diana M. Kloss notes (1965), while American courts have glossed over this require ment of proving that the damage resulted from the relevant negligence in their campaign for * patient's 'right to know', the Canadian courts have hit on the solution. The mind of a > cannot be opened in a courtroom. The « should be: on the evidence available °ncerning the plaintiffs character and attitude *° his suffering would he have been more ikely to refuse to go on with the operation had known of its risks or would he have gone ahead nevertheless? The consequences of potenliability for negligence in failing to obtain " informed consent are touched on later in -e article. e
mar
t e
c
e
l l a l
a
th
BATTERY
Jhe most recent Canadian decision on liability ° mjury in the course of surgery, Reibl v. *ghes (1977), 78 DLR (3d) 35, has more turbing implications for the surgeon. The defendant chief of neurosurgery was held liable battery. He operated on the plaintiff to move build-up of plaque in the left carotid "tery f ^ | e the very ' a l risk of a stroke in later years. What the P'aintiff was not told when he agreed to the °Peration was that the operation itself carried a emulative 10% risk of a stroke and a 4% °rtality risk, ln the course of, or immediately ollowing, the operation, the plaintiff did suffer massive stroke paralysing his right side and £ dering him impotent. The Ontario High °"tt found that a risk of this likelihood and tended by such drastic consequences was °ch an integral feature of the operation that °nsent in ignorance of this risk was no consent *J all. Before examining the chance of Reibl v. ghes being followed in England, the conse quences of an action framed in battery rather , negligence must be noted. The plaintiff airns simply that he suffered an unpermitted 'evasion of his person. According to Kelly v. t t and Reibl v. Hughes the onus of proving P °Per consent is thus thrown on the surgeon. ofessor Street (1976) disagrees, but the only glish authorities are ancient and scant. In fact, the surgeon will of course counter the gation of lack of consent, where the onus Proof lies will only be important in marginal r
H
ls
m
re
a
0
r
m
a
n
at
s
c
u
a n
c
a z l e
r
r
E
n
a
0
le
b r a i n
i n
o r d e r
t o
r e c
U C
51
cases where the tendency in any case may be to give the surgeon acting in good faith the benefit of the doubt. More important if the court is satisfied that the patient's consent is vitiated by his ignorance of the real nature of what was to be done, there will be no need for him to prove that had he had the chance to consent in full knowledge of the potential consequences he would not have done so. If there was in fact no valid consent there was a battery. And whatever injuries resulted from that battery, forseeable or not, will attract damage. The Wagon Mound (No. 1), [1961] A.C. 388 PC restricting recoverable damages to reasonably forseeable injuries is limited to actions in negligence and does not apply to actions for trespass to the person, of which battery is a form. Potentially, the action in battery is a formidable weapon in the hand of an unsatisfied patient. Two obstacles lie in the way of a claim for battery in circumstances similar to Reibl v. Hughes occurring in England. The very basis of the decision is questionable. Providing what is physically going to be done to the patient is explained and he consents how can that exact procedure be regarded as an unpermitted act? In Hegarty v. Shine (1878), 14 Cox CC 145 Miss Hegarty sued her seducer for damages for battery. She alleged that while she consented to sexual intercourse she did so in ignorance that he suffered from syphilis and so her consent was to an act totally different in nature to that which took place. She did not consent to almost certain infection and in fact she and her child were both affected by the disease. The Irish Court of Appeal held that the court's function was not to relieve the plaintiff of the 'loathsome' consequences of her own immorality and further that the plaintiff's ignorance of her lover's disease did not affect the nature and character of the act to which she consented. The court, however, expressly recognized that if in obtaining consent to an invasion of the person facts were concealed which if disclosed would cause the plaintiff to withhold consent, and an obligation, untainted by immorality or illegality, to tell the whole truth can be dis cerned from the circumstances, the plaintiff's consent in ignorance of these crucial facts would be invalid. In the context of this article
52
Med. Sci. Law ( 1 9 7 9 ) V o l . 1 9 , N o . 1
then, the test would be whether the risk or sideeffect not disclosed to the patient was so much a feature of the operation to be performed that consent in ignorance of this factor was not really consent to the operation being proposed. So, in its context, Reibl v. Hughes might be seen as correct. An operation to lessen the risk of a later stroke carrying a 14% risk of an immediate stroke or worse is very different in nature from an operation to relieve that later risk of a stroke attended only by the usual risks of anaesthesia and delicate brain surgery. The insuperable problem, however, is at what stage must a risk or side-effect be consider ed to be so likely or so severe as to transform the entire nature of the surgery proposed? In Kelly v. Hazlett, where liability was found to lie only in negligence, the court said that if the basic nature and character of the operation was substantially that of which the plaintiff had been advised, then there had not been an unconsented-to invasion of the person. Distingui shing collateral risks from risks so integral to the nature of the operation was recognized as a test with practical and, perhaps, policy frailties. These frailties, I suggest, would dis incline an English court from holding that the special risks of a particular surgical procedure were such that they transformed the nature and character of the procedure so that consent in ignorance of the risks was no consent. My view is strengthened by the apparent trend in judicial decisions, as exemplified in Fowler v. Lanning, (19591 1 QB 426 and Letang v. Cooper, [1965] 1 QB 232 CA, to limit the action for battery to deliberate, hostile acts. An English court might well be only too willing to accept the argument of Allan H. McLoid (1957) that battery by a surgeon would be committed only where the surgeon intentionally deviated from the practice agreed to in a manner not intended to benefit the patient. The danger which may lie in wait for an unwary medical profession is that as the law of tort develops mainly through the determination of individual claims, a meritorious claim where a patient has suffered grievous injury because of the materialization of a risk integral to the operation agreed to may sway the court to acceptance of a claim for battery. Faced with such a claim, acceptance of liability for negli
gence and settlement on that basis inight seem to be the safest solution. Yet a snag appears in such a solution, for the surgeon may not have been negligent. Looking again at the facts of Reibl v. Hughes failure to perform the opera tion, leaving Mr Reibl in constant fear and a risk from a stroke, might itself have been regarded as negligent. The decision to operate was probably clinically correct. Was the defers dant negligent when he failed to tell his patient of the special risks of the procedure itself? The patient might well then have refused treatment. There seems to be an inherent contradiction for the surgeon between his duty to treat his patient to the best of his skill and judgment and his duty to give him fu^ and accurate information. Faced with a claim for surgical battery and an allegation that consent was vitiated by the defendant's fail" * to disclose crucial information, the surgeon will be advised to put in a further defence. Medical emergency or necessity is not yet recognized in England and certainly problems arise about the whole concept of treatment without consentWould a court, however, award more than nominal damages if the clinical judgment to operate was reasonable albeit the patient was in a sense misled about the nature of the operation? It would seem better, as Skegg argues (1974), for the issue of necessary medical treatment carried out without the patient's consent to be faced honestly and not by stretching unrealistically the notion of consent-
1
1
CONCLUSION
It must already be clear that I regard the introduction of a class of surgical battery where consent has been given to the procedure described, but the patient is unaware of certain crucial risks, as undesirable. Not only would i be practically an impossible task to identify the risk so integral to the operation as to transform its nature, but as a matter of policy it seems to be wrong for it discards altogether the clinical judgment of the doctor. In principleand thinking in purely lay and commonsense terms, what must be sought is a balance between the right of a sane, adult person to understand the true nature of what is going to happen to him or her, and the inevitable fact that the final judgment must be that of the
{
Brazier: Informed Consent t o Surgery C a
S t a
tha ' ' P
r
o
v
i
d
inf risks" ' Pa 1 °^ 1141
ë
011
^
e
s o
'
u t
'
o n
m
e
a
l S l terms is
t n
e patient with full and accurate ° likely consequences and °P i° should be part and f
S
e r a t
°^ ^
Was
T
^' m
C
s u r
8
n
e o n s
duty ° f
c a r e
-
B u t
>
ω
said above, this duty is not a separate,
distin,'ct obligation, but an inherent element in the duty to treat the patient. So where, in his Judgment, the mental or physical condition of Patient is such that an explanation of what ^ay happen will be detrimental to the patient, n in the circumstances the surgeon does not ^ unreasonably in withholding information. °es this really complete the circle, concluding ' t h the premise originally attacked that the * ° u n t of information given to the patient Pends on the clinical judgment of his doctors one? n i f h e law of tort provides amework within which men conduct their ^lationships, it should be clearly understood *t when exercising his judgment as to what tell the patient the surgeon must bear in d that prima facie it is the patient who °uld decide whether or not to take the benefit "rgery attended by definite risk. ^ Practical consequences of such an attiin * ^ ^ readily assessable by doctors Ptactice than an academic lawyer. That the • on occasion of explaining special is already to some extent understood is rated by another cast from the Health rvi c doulw Commissioner's reports. A surgeon, °ubtful ul of the chances of success of an n a t i o n to remove a Kuntscher nail, inserted e r th complainant fractured her right femur Ger many, refused to operate when the f P n a n t would not sign a special consent ^ "'outlining the effects and possible failure S Procedure (First Report of the Health Hi'/ 'oner 1 9 7 5 - 6 , Case No. W. h j ~ 7 5 ) . The Commissioner found that he con ' l y - Perhaps wider use of special on would be desirable whenever an th '° special risk. The addition to f d a r d form after 'the nature and effect D operation have been explained to one by rj —' of a formula 'the special risks atten tai i ° ° P i o n being...' would only be Pat' concern the vast majority of ^ s , awaiting only standard, safe surgery, ccording to many consultants questioned e
e
w
m
e
0
1
n s o
a r
fr
l n
0
s
n
e
e
m
o
r
e
n
i e
c e
d
aft
e
l n
m
lai
0
ΓΓ
0
e
06
Commiss
7 4
a(
a C t C d
S e n t
e r a t
f
w
o
n
r
s e
m
s
c a r r i e s
e
s t a n
0
e
r/
r
at1i
n t f t e
a t e d
n t
t 0
e r a t
a s
t
53
by the Health Service Commissioner, they did not inform their patients about the risks of an operation because the patients did not ask them. Should one infer then that the ordinary man prefers to entrust himself to his doctors and leave to them the decision as to whether a risk is worth taking? First, an absence of questions to the consultant may arise not from the absence of a desire to know but awe of the person's office and the sudden transposition of the patient from his familiar surroundings to the rather frightening world of a hospital. Second, the risk taken by surgeons in relying on the patient's apparent trust before the operation may prove costly if later events result in an aggrieved patient sueing for negli gence or battery on the lines suggested in this article. And finally, once again a distinction between different types of operations must be made. Just as the reasonable surgeon operating on a malignant growth in an area where surgery itself may be dangerous may be fulfilling his duty of care by not distressing the patient or dissuading him from surgery by explaining the risks, so the reasonable patient may not want to be told of the risks. However, the patient requesting cosmetic surgery, orthopaedic sur gery to relieve pain or halt an arthritic condition or other surgery beneficial but not necessary to saving his life probably would want to choose himself between continuing as he is or taking the risk of worse injury in the course of a cure. One particularly difficult area will always be physical treatment for mental illness. Must a voluntary patient offered electro convulsive therapy or surgery to relieve depres sion or some other psychiatric condition be warned of its risks if any? ln principle, the surgery or therapy proposed clearly falls within the class of intervention to alleviate suffering and not crucial to life. The condition of the patient and his capacity to judge what he is being told must be relevant in the reasonable exercise of the doctor's judgment as part of his duty to the patient. Nevertheless, the risk of, say, loss of memory from electro-convulsive therapy is severe, drastic for professional patients, and once again I would argue that even in the case of mental illness prima facie the patient should be warned of the risks he runs in seeking relief from his condition.
54
Med. Sci. Law ( 1 9 7 9 ) V o l . 1 9 , N o . 1
Finally, an as yet unreported decision of the High Court on 28 July 1978 may mark a move towards the development in England of the duty to give full advice on the nature and consequences of surgery before obtaining the patient's consent. A woman of 35 years was sterilized in the course of a Caesarean section to deliver her second child. Her claim in battery failed on the grounds that she understood and agreed to the proposal to sterilize her. Croom Johnson J awarded her £3000 damages, how ever, holding that while she agreed to be sterilized she had not been given sufficient advice before consenting to be sterilized simul
taneously with the delivery of her child Times, 29 July 1978, p.3).
he
(T
REFERENCES
Kloss D. M. ( 1 9 6 5 ) C o n s e n t t o m e d i c a l treatment' Med. Sci. Law 5, 8 9 . , McLoid A. H. ( 1 9 5 7 ) A reappraisal of liability 0' u n a u t h o r i z e d medical t r e a t m e n t . Minnesota W Rev. 4 1 , 3 8 1 . Plante M. L . ( 1 9 6 8 ) A n analysis of ' i n f o r m e d consent' Fordham Law Rev. 3 6 , 6 3 9 . , Skegg P. D. G. ( 1 9 7 4 ) A justification for medic* p r o c e d u r e s p e r f o r m e d w i t h o u t c o n s e n t L.Q.R- P"' 512. Street H. ( 1 9 7 6 ) The Law of Torts. 6 t h ed. Londo»> B u t t e r w o r t h , p . 19.
