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No medical procedure is entirely without risk. When a patient is to have an operation he or she is asked to sign a form consenting to the procedure.
The main purpose of signing the form is to give consent to invasive actions which would otherwise be an assault. But for the consent to be valid, the patient must know what exactly it is that they are consenting to. A series of legal decisions on this point mean that a doctor has to tell the patient enough about the risks and benefits of the proposed operation for the patient to make an informed decision about whether to have it. A doctor does not have to tell a patient about every single risk, however small or unusual, but the patient must be told about frequent risks, and also about rarer risks if they are serious when they occur. Giving consent in the knowledge of the risks being run is called informed consent.
Giving consent to a risk does not mean the doctor is absolved from liability for negligence. For example, a consent form might refer to bleeding being a risk, and the patient signs to say they have been told that and agree to run the risk, but if the bleeding is caused by the doctor negligently cutting a main blood vessel, the signature on the form will not stop the doctor (or the NHS Trust that employs him) being liable to pay compensation. The patient is not consenting to negligent actions, only to the normal, if unusual, consequences of the operation, which can happen even when the doctor is taking due care.
It is usual for the doctor to write on the consent form a list of the risks he has discussed with the patient, but not mandatory. Where the risks are major, a detailed list may be written out for the patient. In neurosurgery, for example, where some of the risks can be catastrophic for the patient if they materialise, this is common practice. In more minor procedures, none of the risks discussed may have been noted on the form.
This can become important if the surgery does not go according to plan: the patient will say they cannot recall being told about the risk, and that had they been told, they would not have agreed to surgery, and seeks compensation. The legal cases that arise from this are not straightforward. The first difficulty is a conflict of evidence between the doctor saying he always advises about particular risks, even if he did not write them down, and the patient who cannot remember being told. In many such conflicts it may be held that the patient was told, but cannot remember clearly because he was in pain and under stress. The patient who succeeds in showing that the risk was mentioned then has the extra hurdle of showing that if he had been told, he would have refused consent. This can be even more difficult. Of course with the benefit of hindsight the patient would never have agreed had he known what would happen. The judge however has to assess what the patient would have decided at the time, and of course many iof not most patients do decide to go ahead with operations when they are told about the risks.
The patients who do succeed in getting compensation in these cases are those who can show that that had they been told, they would have decided not to go ahead, and put up with the symptoms the operation is aimed to cure. Successful patients are those, for example, who can show they had refused surgery on a previous occasion because of the risks. In a recent and controversial landmark case a journalist succeeded who was able to persuade the judges that had she been told about the risk, she would have put off the decision to have spinal surgery with a small risk of making her condition much worse while she researched it and took advice from doctor friends. The unusual feature of the case is that she was frank in saying that after doing this she still might have come back and decided to go ahead. The House of Lords divided 3:2 in deciding that although she had been unlucky in that the risk materialised when she had the operation, had she had it a few weeks later the probability was that the operation would have gone without incident, as the risk itself was small – it could not be said that it would have occurred whenever she had it. They felt able therefore to say that it was a risk that, though small, she should have been warned about, had she been told, she would have gone away to think about it, and had she had the operation another day, it was probable the surgery would have been successful.
This was encouraging for patients, who until then often had trouble getting compensation even when they could show they were not told about the risk. It also indicates the new emphasis on patients participating in decisions about treatment in an informed way, rather than accepting that the doctor knows best.
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