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Content to consent?

01 November 2003

Mr M suffered from excessive snoring. He’d had sleep studies which excluded sleep apnoea and been referred to Mr O, a consultant ENT surgeon with many years’ experience of treating sleep-related disorders. Mr O found Mr M to have a bulky palate, prominent tonsils and a long uvula. He advised uvulopharyngopalatoplasty.

Mr O discussed the risks of the procedure, specifically postoperative pain, dry throat, difficulty clearing secretions and short-term nasal regurgitation. He didn’t advise of the risk of long-term nasal regurgitation, which, with an incidence of 0.5%, he felt rare enough not to discuss.

When reviewed two months after surgery, Mr M’s snoring had resolved.

He had difficulties with ‘hypernasal’ speech and nasal regurgitation when drinking. He did not attend for further follow-up. Three years later, he started legal proceedings against Mr O. He alleged poor surgical technique in removing excessive palatal tissue, performing a tonsillectomy without consent and failure to advise of the risks and complications of the surgery.

Expert opinion

Expert advice found no fault with the pre-operative assessment, surgical technique or postoperative management. The expert commented that Mr O’s failure to specifically mention the removal of the tonsils and the risk of long-term nasal regurgitation was problematic. Mr O saw tonsillectomy as a standard part of the procedure not worthy of specific separate comment.

Learning points

  • Consent – Expected standards of consent vary around the world, from case-to-case, and over time within any country. However, the concept of ‘informed consent’ is now the most common standard. Any degree of medical paternalism is not acceptable.
  • The most recent guidance on consent from the UK’s Department of Health advises on the legal duty of consent that ‘it is open to the courts to decide that information about a particular risk was so obviously necessary that it would be negligent not to provide it, even if a “responsible body” of medical opinion would not have done so.’
  • The MPS booklet on consent makes the same point and provides helpful guidance on the standards expected in the UK.
  • Patient Information Leaflets – for elective or cosmetic procedures these are helpful in supporting the process of consent but can never replace individual counselling.