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Surgeon cautioned for judgment call on last-minute request

14 October 2020 | Morag Smith, Bjuris, LLB, Senior Solicitor, Avant Law, WA

A case involving an obstetrician and gynaecologist member who agreed to a patient’s last-minute request in the anaesthetic bay to perform an extra procedure, raises important lessons for doctors around informed consent.  

A woman in her forties consulted the doctor complaining of regular post-coital bleeding, fibroids and mild urinary stress incontinence. He performed a pelvic ultrasound, explained the surgical treatment options and handed the patient a leaflet on hysterectomy. The ultrasound revealed fibroids in her uterus.

At a second consultation, the doctor outlined the procedure and its risks, and the patient signed the pre-admissions summary consenting to a “laparoscopic assisted vaginal hysterectomy, removal of right ovary and repair and cystoscopy.”

Surgery took place three months later. The doctor gave evidence that while in the anaesthetic bay, the patient, who had not received any anaesthetic pre-medication, asked if he could do anything about her stress incontinence. This was disputed by the patient. The doctor offered to perform a Trans-Obturator Tape (TVT-O) procedure but did not explain the procedure or its material risks in any detail. The consent form was amended to include the TVT-O procedure for stress incontinence, and this was performed with the other procedures as initially agreed.

Patient complaint

The patient had ongoing pain after the procedure and made a complaint to the Medical Board of Australia about the doctor’s treatment, stating she felt she was not fully and appropriately informed of the outcome she experienced.

The Medical Board took disciplinary action against the doctor based on a series of allegations which included failing to adequately obtain informed consent from the patient. This centred on the doctor only discussing the TVT-O procedure pre-operatively in the waiting area before the surgery and adding a relatively major procedure with potential morbidity to the consent form immediately before surgery.

The allegations also included the doctor’s failure to comply with the National Health and Medical Research Council’s guidelines for practitioners on providing information to patients. This was due to not allowing sufficient time for the patient to consider having the TVT-O procedure.

Doctor cautioned for mistake

In hindsight, the doctor admitted adding the TVT-O procedure at the last minute was not good judgment. He conceded that he failed to adequately obtain informed consent for the TVT-O procedure.

The Medical Board’s performance and professional standards panel found that although he spoke with the patient about the procedure before the surgery, purporting to obtain her consent directly before the surgery was highly inappropriate.

The panel considered the patient would have been under a considerable amount of stress and was unable to provide her informed consent to the TVT-O procedure at the time.

The panel accepted this was a one-off mistake and the doctor had reflected on the incident, and under Avant’s guidance, undertaken education on informed consent and record keeping. It was also noted he had taken steps to improve his practice and now used specific consent forms, and a stamp to record the provision of patient information sheets.

However, because of the fundamental importance of obtaining properly informed patient consent, particularly for surgery, the panel required him to undertake further one-on-one education on informed consent, medical record keeping and ethical medical decision-making and to complete a reflective practice report on each topic. 

The aim of this was to ensure the doctor did not repeat his conduct, and to deter other doctors from engaging in similar conduct, to ensure the public is protected and professional standards are upheld.

The doctor was found to have behaved in a way that constituted unsatisfactory professional performance and cautioned.

Consider the patient’s capacity to consent

Patients are often highly anxious on the day of surgery and may not be thinking clearly. If they have been given an anaesthetic pre-medication, their ability to assess the risks and benefits of a procedure may be compromised.

As noted in this case, even if the patient has not been given any anaesthetic pre-medication which could impair their decision-making capacity, they may still be under considerable stress and this can hinder their ability to properly consider the information provided. 

The patient’s consent will not be valid if they do not have capacity to make the decision. A patient has capacity if they are able to understand the nature and consequences of the decision. They must also be able to communicate their decision, verbally or by other means. For more information in determining whether or not your patient has capacity, see our factsheet.

Verbal consent and significant procedures

Legally, consent can be written or verbal, express or implied. In some circumstances, consent can be implied from a patient’s behaviour – for example a patient who offers their arm for a blood pressure cuff or IV cannulation.

Consent can be verbal, but it is important that any verbal consent is documented along with a summary of the discussion.

Generally, the more significant or risky the procedure, the more important it is to obtain written consent. Certain types of procedures, including most surgical interventions, blood transfusions and chemotherapy, require written consent, and we recommend obtaining written consent for all significant procedures. Your practice or hospital may also have a policy requiring written consent.

If a doctor touches a patient without their consent, the patient may be able to bring a legal claim against the doctor for assault. We support a few members each year facing allegations of assault where it’s claimed consent was not given for a procedure.

Even if a patient gives consent, without having been given sufficient information to make an informed decision, they may have a legal claim that the doctor was negligent. In either case, the patient may also complain to a regulatory authority.

The best defence is a consent discussion where the relevant information is provided to the patient, focusing on their specific situation and what is important to them. The discussion should be documented in the medical records, together with a signed consent form for significant procedures.

Useful resources

For more information about obtaining informed consent, see our factsheet and eLearning course. You can also read our insights on member consent-related claims.

If you experience a complaint, please contact our medico-legal advisers via email: nca@avant.org.au or call us on 1800 128 268 for expert advice, available 24/7 in emergencies.

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