Consent law is not set in stone; it has evolved considerably over the last 120 years and continues to be refined through case law, GMC guidance and legislation.
In 1896 in the case of Beatty v Cullingworth13, the patient, who was a nurse, consented to removal of her right ovary, specifically telling the surgeon beforehand that if both ovaries were found to be diseased, neither should be removed. The surgeon said that she should leave that to him to which she made no reply. At operation, both ovaries were removed as the left as well as the right was found to be diseased. When the case came to trial, the judge said “If a medical man undertook an operation, it was a humane thing for him to do everything in his power to remove the mischief.” The jury returned a verdict for the defendant (surgeon) despite the absence of consent.
Almost 60 years later, the courts were equally protective of the doctor’s position in the case of Hatcher v Black.14 Mrs Hatcher, who occasionally broadcast for the BBC, went into hospital for a partial thyroidectomy. Understandably, she asked if there was any risk to her voice and was reassured by the doctors. During the course of the operation the recurrent laryngeal nerve was damaged. Postoperatively she could not speak properly and never broadcast again. In summing up, Lord Denning found that the surgeon had lied to the patient by telling her there was no risk to her voice when he knew that the risk existed. He went on to say that not one of the doctors that had been called to give evidence had suggested that the surgeon did wrong and that all agreed that it was a matter for his judgment. Lord Denning concluded “They did not condemn him; nor should we.”
In 1972, there was a radical development in consent law in the United States. In California, the case of Canterbury v Spence15 introduced the doctrine of informed consent. The claimant consulted Dr Spence because of severe pain between his shoulder blades and was advised to undergo surgery after a myelogram showed distortion of the thoracic vertebrae. Before the procedure, the 19-year-old patient did not ask any questions or voice any reservations about the proposed treatment. Postoperatively, Mr Canterbury suffered incontinence and had difficulty in walking.
At trial, the judge stated “The patient’s right of self decision shapes the boundaries of the duty to reveal. That right can be effectively exercised only if the patient possesses enough information to enable an intelligent choice. The scope of the physician’s communications to the patient, then, must be measured by the patient’s need, and that need is the information material to the decision.”
But 13 years later, in the UK, the House of Lords rejected the doctrine of informed consent in the Sidaway16 case. Mrs Sidaway consulted a neurosurgeon as she had persistent pain in her back. She was advised to undergo surgery and was told of the risks of damaging the nerves emerging from the spinal column but not of the risk of spinal vein thrombosis, reckoned to be a less than one per cent risk. Unfortunately, Mrs Sidaway developed a postoperative hemiplegia secondary to spinal vein thrombosis and sued on the grounds that, had she known of the risk, she would not have consented to undergo surgery.
The Law Lords were not unanimous in their view, but the majority decided that when counselling patients prior to surgery or any other procedure, “the degree of disclosure required to assist a patient to make rational choice as to whether or not to undergo a particular treatment must primarily be a matter of clinical judgment”.
Rogers v Whitaker17 was an Australian case in which a woman who wanted to return to work sought advice from an ophthalmic surgeon as she had suffered an eye injury years before and had been left with an unsightly and blind eye. She was told there was nothing that could be done to restore her sight, but there was scope for cosmetic improvement. Prior to the operation, she asked three times if there was anything that could go wrong and was reassured that no serious complications were associated with the surgery. Unfortunately, she developed sympathetic ophthalmitis in her good eye and was rendered totally blind.
She sued the surgeon, saying that she should have been warned of this rare complication of surgery. The defence to her claim was based on the grounds that the risk was so small, estimated at just 1 in 14,000, that there was no duty to warn the patient about it. The courts found in the patient’s favour on the grounds that the risk of total blindness, no matter how small, was material to the patient’s decision and it was negligent not to advise her of the risk so that she could decide whether or not to go ahead with surgery.
The next major development in the UK was in 1998, when the GMC published Seeking Patients’ Consent: The Ethical Considerations, which set out in explicit terms the information doctors ought to provide to patients before seeking consent to treatment.
In 2004, another neurosurgical negligence claim – Chester v Afshar18 – was considered by the House of Lords. Its effect was to make more important than ever the need to ensure that patients are fully informed, understand the information they are given and have sufficient time, where possible, to reflect on their decision.
Miss Chester had a discectomy for low back pain. The procedure was undertaken competently, but Miss Chester was one of the two per cent of patients left with cauda equina syndrome as a result of surgery. She then sued the surgeon, claiming that he had failed to warn her of this risk.
She won that point but, in addition, the Chester case established on policy grounds that the patient’s autonomy and dignity required that she be allowed the time to make an informed decision. So, in the wake of Chester v Afshar, it is imperative that care is taken to warn patients about all risks material to their decision and, when time permits, that they are encouraged to consider their options over time before deciding whether or not to undergo treatment.
As the cases outlined above show, the paternalistic model of doctor–patient relations has gradually been replaced over the years with a much more patient-centred approach to consent. Nowadays, doctors are expected to work in partnership with patients to agree on treatment options, with the patient’s needs and wants as the primary consideration. This is the approach adopted by the GMC in its 2008 guidance, Consent: Patients and Doctors Making Decisions Together.