Gill Stoll gives details of a recent judgment handed down by the designated civil judge for Liverpool, His Honour Judge Graham Wood QC in the Liverpool County Court, in which the Supreme Court decision in Montgomery -v- Lanarkshire Health Board (see related article by David Locke) was considered. The case serves as a useful reminder of the importance of ensuring informed consent.
The case related to the occurrence of a massive fatal pulmonary embolism (PE) following a routine total knee replacement procedure in 2008.
The risks were discussed pre-operatively in November 2007 and formal consent taken shortly prior to surgery. This included a discussion regarding the increased risk of deep vein thrombosis (DVT) and PE, particularly as the deceased had a previous history of the same many years earlier.
A decision was made to prescribe Clexane and Warfarin (anti-coagulants to reduce the risk of blood clots) post operatively and pneumatic boots were also used intra-operatively to encourage venous flow, although graduated compression stockings (GCS) were not applied.
Whilst there were numerous allegations made at the outset of the case, by trial there were just two issues remaining:
1) whether GCS ought to have been offered and/ or applied post operatively; and
2) whether the deceased should have been specifically advised that GCS would not be applied, in particular that recently published NICE Guidance and a subsequently developed Trust policy (advising the use of GCS in all patients) would not be followed and why (an alleged failure to provide ‘informed consent’).
Whether GCS ought to have been offered and/ or applied post operatively
Although the judge commented that the NICE guidelines provide a compelling context for what would be considered appropriate medical treatment, such that it will be difficult for a doctor to justify departure, it was held that the long established Bolam test still applied.
In other words, if an individual surgeon is aware of the guidelines, but has chosen to depart from them and can show justification for doing so, the test is whether a responsible body of medical opinion would have done likewise. The judge was satisfied that this was the position in this case.
Whether informed consent was provided
His Honour Judge Wood QC found that, whilst most patients would not be aware of the NICE Guidance or Trust policies, they would expect a clinician to discuss and advise them of current practice, and if they were planning to depart from established guidance, to explain the reasons why.
He felt that it was imperative to have had the discussion regarding GCS prior to the index surgery. Applying Montgomery, it was held that, even if the risk was being properly addressed, it could not be said that the issue was not material and relevant.
However, on the evidence the judge found that it was unlikely that the deceased would have refused or delayed surgery in any event. Accordingly, the fact that the consenting process was substandard was not of causal significance.
As set out in David Locke’s article on Montgomery, this case reinforces the need for all medical personnel involved in consenting patients to be aware that there should be less of a focus on the percentage risk of occurrence, and instead the materiality of the risk from the perspective of the patient should be considered.