The recent High Court decision of Reeves v The Queen,1 highlights the importance of medical practitioners carefully documenting both treatment advice and their patient’s consent.
A defendant gynaecologist was charged with malicious infliction of grievous bodily harm. The harm alleged was the surgical removal of the patient’s external genitals in August 2002. The patient had been referred to the defendant for treatment of a pre-cancerous lesion on her left labia minora.
At trial, the prosecution contended that although the patient had consented to the surgical removal of the lesion, she had not, as the defendant claimed, consented to the removal of her vulva, including her labia and clitoris.
The defendant claimed that he considered the procedure necessary having observed extensive sinister changes to her vulva in addition to the lesion. He maintained that he had explained the procedure to the patient with the aid of a diagram indicating the area to be removed (which included the labia and clitoris). The defendant also claimed that he gave the diagram to the patient to take home, but admitted he did not keep a copy. The patient disputed this account, particularly the claim that she had been shown the diagram.
Apart from clinical notes containing entries that were alleged to have been recently fabricated to support the defendant’s version of events, contemporaneous records2 did not support his claims. Specifically, there were no records showing that the defendant had observed the changes which he claimed warranted the procedure be carried out, or that he had obtained the patient’s consent to carry out that procedure.
The patient claimed that had she been properly informed, she would not have consented to the removal of her clitoris and that she had not understood the nature of the procedure.
The prosecution conceded that had the defendant explained the nature of the procedure as he claimed he had done, the patient’s signed consent form would have been sufficient to provide the required consent to carry out the procedure.
The defendant was convicted and sentenced to two and a half years’ imprisonment with a non-parole period of one year.
Court of Criminal Appeal
The Director of Public Prosecutions appealed against the inadequacy of the sentence and the defendant appealed his conviction.
The Court of Criminal Appeal (CCA) found that the trial judge had wrongly introduced the concept of “informed consent” when directing the jury. It held that the trial judge erred when directing that a medical practitioner must explain the “possible major consequences” and alternative treatment before he/she is afforded lawful cause or excuse for performing the surgery. In order to avoid the offence of battery, the CCA held that the patient need only be advised in broad terms of the nature of the procedure.
Despite this error by the trial judge, the CCA determined that the misdirection had not occasioned a substantial miscarriage of justice. It confirmed the conviction and allowed the appeal against the inadequacy of the sentence.
The High Court dismissed the defendant’s further appeal against his conviction although remitted the issue of the severity of sentence to the CCA.
In giving its reasons, the Court noted the difference between the nature of the consent required to avoid criminal liability in cases involving injury arising from medical treatment, and that required to avoid civil liability in a claim for breach of duty of care.
The Court held that it would have been sufficient in this case for the defendant to have informed the patient in broad terms of the nature of the procedure (i.e. that it involved the removal of her labia and clitoris).
The Court suggested however that a more detailed explanation of the procedure, including possible major consequences and alternative treatments, might be required to avoid civil liability.
The value of written records should never be underestimated. Had the defendant in fact informed the patient that the procedure would involve the removal of her labia and clitoris, as he claimed, and adequately documented this warning, he may have avoided conviction. Ultimately, his lack of written records was his downfall.
This case serves as a timely reminder to medical practitioners to ensure that:
- patients are informed of the nature of any proposed procedure and advised of all material risks and any alternative treatments (including the nature of those alternative treatments and material risks);
- the practitioner records the information provided to the patient;
- the practitioner obtains the patient’s consent to the procedure as explained and recorded; and
- the patient acknowledges in writing that they have understood the practitioner’s explanation and given their consent based on that information.