UK: A Doctrine of Informed Consent?

Last Updated: 15 February 2005
Article by Charles Atkins and Paul Thomson

Originally published January 2005

In Chester v Afsharthe House of Lords has effectively swept aside the requirement of causation (establishing a causal link between a breach and a patient’s injury) where a medical professional has failed to obtain a patient's fully informed consent. This judgment is of huge significance where there is failure to warn of a risk which subsequently materialises. Healthcare professionals must redouble their efforts to inform patients of risks to the fullest possible extent.

The facts

For six years Miss Chester suffered back-pain which had been treated conservatively. In 1994 she visited Mr Afshar, a highly experienced neurosurgeon, who advised an operation at three levels. It was found by the judge that Mr Afshar had failed in his duty to tell her of a 1-2% risk that the operation might lead to cauda equina syndrome, and thereby paralysis.

The claimant stated that if she had known the risk, she would have delayed the operation to reconsider it and to obtain a second opinion. However, she admitted she would have eventually undergone the operation nonetheless. Unfortunately although the operation was performed perfectly skilfully and without negligence it resulted in cauda equina syndrome.

A major knock for causation

Even though the doctor's breach of duty to warn of the risks did not cause the claimant’s injury, the judges awarded her a remedy, thus negating the need for her to prove both liability and causation to succeed in her claim. Their Lordships' reasoning on this 'narrow and modest departure from traditional causation principles' had five elements:

  1. The patient's right to choose was held to be paramount.
  2. Public policy was deemed to outweigh the requirement of causation in this instance.
  3. The duty to warn a patient of risk would be meaningless if there was no remedy for breach.
  4. A causation requirement might penalise honest claimants who admitted they would have had the operation in any event.
  5. The injury caused was 'the product of the very risk that she should have been warned about.' As the damage sustained was so closely connected to the duty breached, this was a further reason for compensation in the absence of established consent.

Impact on clinical negligence

This decision will have a remarkable impact on cases where the duty to warn is in issue. Practitioners should not be surprised if, in future, more patients deny being advised of key risks. Claimants will now be advised to try and include an element of consent simply so as to avoid having to jump the causation hurdle.

One can foresee arguments that the principle extends to cases where the injury sustained is different to the type of injury about which the patient was warned. No doubt, it will soon be argued that surgeons have a duty to warn if they have higher than average complication rates or that patients should be advised preadmission of the small but nonetheless apparent risk of contracting MRSA. To all intents and purposes therefore, we now have a doctrine of informed consent.

Guidance for health professionals

Doctors and other healthcare practitioners will need to protect themselves by:

  • Giving more attention to warning patients of risks in all treatments.
  • Ensuring the patient understands the risks.
  • Making detailed notes of the actual advice given to patients. It will no longer be sufficient to record ‘warned of risks’ or the equivalent which may leave practitioners vulnerable. As highlighted by Mr Afshar's experience, a detailed account of the specific risks about which a patient is warned ought to replace common shorthand notes.

It is good practice to develop a checklist and printed advice sheets, to be talked through and perhaps even signed by patients, providing detailed information on risks specific to a particular procedure.

© RadcliffesLeBrasseur

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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