It’s an interesting emotion that goes through us as we read the Medical Board’s regular bulletins of hearings into our colleagues’ conduct, or newspaper reports of medicolegal court cases. A curious mix of disdain that such things should happen, and relief that we are not involved.

Most medical practitioners will be familiar with the general principles of the Rogers v Whitaker 1992 High Court case that established our obligation to ensure that patients are warned not only of the general risks of a medical intervention but also of any risks that have specific importance to them individually. Less well known is a case that came before the New South Wales Supreme Court in 2002 (Knight v Stocker [2002] NSWSC 1161). The judgement of Justice Simpson makes fascinating reading, not least because of the caning she hands out to an expert witness she describes as “aggressive” and “combative”. Never anger a judge – the role of the expert witness is to assist the Court.

But judicial fury is not the focus of this article; it’s all about whose responsibility it is to decide what the patient should be told. The details of the case are complex but – in a nutshell – it relates to inguinofemoral pain experienced by a patient for many years following a routine D & C and laparoscopic sterilisation. The patient was unsuccessful in her complaint of “failure to warn” as she was unable to prove that the pain was caused by the procedure – negligently performed or not - and the Court found in favour of the doctor. The case has been used by at least one Australian medical indemnity company to illustrate the risks of failing to warn patients of a procedure’s material risks.

The most instructive aspects of this case lie within the judge’s comments relating to the adequacy of information given to the patient by the doctor. It appears that a fairly standard hospital consent form was signed by the patient before she underwent the procedure in 1991. The form included the words:

“I have received all information sought by me concerning care and all questions asked by me concerning the proposed operation and other procedures and all questions asked have been satisfactorily answered.”

The patient’s signature was witnessed by an intern, who was also described on the form as the person who had explained the effect and nature of the procedure. This raises a whole set of separate issues about whether it is appropriate to delegate the authority for gaining informed consent to somebody who might not be competent to perform it. Despite being common practice, it’s not.

Although there were RANZCOG information brochures available within the hospital that described the procedure and its risks, the patient was not given one as the surgeon apparently relied “… on his practice of asking patients if they required further information. He did not believe there was a need to hand out a pamphlet if a patient expressed herself satisfied with his explanation”. Mind you, just handing out a brochure does very little to reduce your medicolegal risk. You need to be confident that the material within has been read and understood.

Many doctors have participated in the very popular seminars by the Cognitive Institute – which I have presented - that encourage doctors to use words such as: “Now, is there anything I’ve told you today that you didn’t understand? Is there any more information you need to make this decision?”. These are very useful words in practice; a patient who says “no” to both of those questions must be pretty satisfied with the information they’ve received. But the answers to a patient’s questions should really be the icing on the cake of the consent process. The prudent practitioner will ascertain their patient’s individual information needs at the beginning of the process, give them general and specific information tailored to these needs (but not limited just to what the patient wants to hear), and then finish off with those two questions once he or she is satisfied that they have imparted the critical core. So while it is good practice to invite and respond to questions, it is not the patient’s responsibility to know what to ask; they can only query things that are worrying them. It is the doctor’s responsibility to decide what the patient needs to know and to inform them in a way that they can understand.

That’s an awful lot of information that needs to be transmitted from the doctor to the patient and Justice Simpson had this to say about not supporting the patient with a written document to assist their decision: “Again, it seems to me that this is an unwise approach and one which does not meet the obligation the law places upon a medical practitioner. The obligation is not only to give relevant information, but to do so in language, and in a manner, that the patient can understand. A patient in a consultation may be under stress or pressure, and may frequently not be able to absorb all that she is told. Giving a patient information in written form gives her an opportunity to consider it at leisure, outside the tension, and sometimes pressure, of a medical consultation; and to discuss it with friends or relatives. Further, the use of such a pamphlet constitutes a protection, not only for the patient, but also for the doctor. I found the defendant’s explanation for what was obviously a considered decision not to make use of the pamphlet rather puzzling. I am satisfied that the information provided by the defendant to the plaintiff was deficient”.

Many of us have long recognised the benefits of well written patient information sheets in making both the doctor’s and the patient’s jobs easier. A previous SMS newsletter has outlined some of the elements that make an information sheet effective; a key factor is how well the sheet complements and supports the doctor’s own explanation. It’s important to remember that patients are not as fascinated by the technical details of how a procedure is performed as you are. A sheet that goes into the technical detail of a surgical text book is not going to be effective; it needs to be a patient education resource rather than a “how to” manual. The level of detail has to be just enough that an uninformed patient can glean an understanding of the basics of how the job is done. Their main interest is going to be in what can go wrong and how likely that is to happen to them.

Justice Simpson concludes her judgement by acknowledging that a medical practitioner is not obliged to advise a patient of “bizarre or unforeseeable consequences” of operative procedures, but that a patient information brochure is a useful starting point in deciding what material risks a reasonable practitioner should inform the patient about. It is still up to the patient to decide whether they have enough information to make a decision; a good brochure helps both doctor and patient get to that point.

Author: Professor Stephen Trumble Chair, Editorial Board Specialist Management Services

This article was first published as an insert in the June 2009 edition of Surgical News.

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