Surgeon found to have discussed risks and provided enough information for patient to make her own decision about treatment

Key messages from the case  

Doctors have a duty to warn patients of risks that are likely to materially influence their decisions about treatment. There is no requirement to anticipate every conceivable side-effect, however unknown or insubstantial. Providing clear information and documenting discussions carefully will help satisfy a court that you have satisfied your duty to warn of risks, should this be questioned.  

 Details of the decision 

Patient M consulted Dr A, a surgeon, about options for treating their hyperhidrosis. The surgeon discussed bilateral endoscopic thoracic sympathectomy and the risks of the procedure. The surgeon also provided them with a brochure from the Society of Thoracic Surgeons outlining the risks.  

Patient M consented to the procedure, which Dr A performed with due care and diligence. Afterwards, Patient M suffered ongoing health problems and side-effects, and claimed Dr A had failed to warn them of the material risks of the surgery.  The trial judge found in favour of the doctor and Patient M appealed the decision to the Court of Appeal.  

Duty to warn of material risks 

Both the trial judge and the Court of Appeal concluded that Dr A had satisfied the duty to warn Patient M of the material risks. Specifically, the courts accepted the patient had been warned that: 

• palmar hyperhidrosis could return in a small percentage of cases 
• they may experience disabling compensatory hyperhidrosis  
• they could experience intercostal neuralgia. 

The court was satisfied Patient M had read and understood the brochure Dr A provided. Even though this referred to the treatment as a ‘cure’, the brochure was clear that the success rate was less than 100%. Despite some misgivings about the use of the term ‘cure’, experts agreed the brochure highlighted the known risks and side-effects of the procedure.  

Extent of duty to warn 

Patient M also claimed that they should have been warned about: 

• the risk of bradycardia – this had limited clinical implications and there was no evidence that it was uncomfortable, distressing or required further treatment. The brochure did warn that some patients may suffer an abnormal heart rhythm. 
• other risks, such as emotional response and debilitating headaches – none of the expert evidence supported that these were known, possible or likely side effects of the surgery. 

The court did not agree, confirming the positions taken in previous cases that "a doctor is not expected to spend an inordinate time conjuring up fanciful fears in the mind of the patient by stressing risks which are not sufficiently substantial to be a factor in the decision-making of a reasonable person”. 

The court rejected Patient M’s claim that Dr A was obliged to provide an in-depth lesson in physiology or neurobiology to explain the mechanics of the procedure. The surgeon was obliged to review some basic physiology and neurobiology for Patient M so they could consent, and the court concluded that Dr A had done so. 

Patient’s right to make treatment decisions 

The court rejected Patient M’s argument that Dr A ought to have warned them not to undergo the procedure at all.  

The court found that Patient M had done considerable research, including into alternatives, and had concluded surgery was their preferred option. The consultation had included a discussion of alternative treatments, but Dr A was not obliged to insist the patient demonstrate they had tried and exhausted all available conservative treatments before considering surgery.  

The procedure was elective, and the court found that Patient M was clearly capable and entitled to make decisions about her own healthcare. 

Medical records 

The brochure, Dr A’s contemporaneous notes, and a letter to Patient M’s general practitioner immediately after the consultation outlining the discussion supported Dr A’s evidence that they had discussed the material risks.  

Outcome 

The court of appeal confirmed the trial judge’s decision that Dr A had satisfied the duty to warn of risks and was not negligent. 

Key lessons 

Obtaining effective informed consent for treatment includes discussing material risks and benefits of the treatment, including potential adverse effects, contraindications for treatment and alternative treatments. 

You are expected to disclose both risks that a reasonable person would consider material to their decision-making, and risks that you know or ought to know would be important to the particular patient. 

However, you are not expected to disclose every risk including those that are fanciful or insubstantial – such that they would not be a factor in the decision-making of a reasonable person in the patient’s position. 

As part of the risk discussion, it is appropriate to provide patients with brochures or reading material from reputable sources, such as information brochures provided by your college or other professional body. However, ensure that you also discuss the information with the patient and satisfy yourself they understand its contents. 

Make a contemporaneous note of your consent discussion with the patient and keep a copy of any information that you provide and signed consent forms in the patient’s clinical record. Brochures may be updated or discontinued, and it can be difficult to establish exactly what information they contained at the time, if questions are ever asked. 

References and further reading 

Avant factsheet – Consent: the essentials 

Avant factsheet – Capacity: the essentials 

Avant factsheet – Medical records: the essentials