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Chapter 04


Learning resources


Chapter 4 - Consent and autonomy

CASE STUDY

Facts

Beth suffers pain in her back and, working in an office, sits down all day, which made it worse.  She is offered an operation that will relieve the pain, but carries with it a 1-2 per cent chance of nerve damage, even if performed properly. This nerve damage may lead to paralysis. The treatment team have not yet explained the risks to her as part of the consent process, and wish to know whether they should mention this risk.  On the one hand, the risk is small and they are worried that Beth will panic and refuse consent to the operation unreasonably. The treatment team suggest that many doctors they know would not warn of the risk. On the other hand, they find it difficult to justify not informing a patient of all risks inherent in what is, after all, an elective procedure.

Analysis

The treatment team consult their solicitor, Marc, who informs them that this case is eerily similar in fact to both Sidaway v Bethlem Royal Hospital Governors (p. 78) and Chester v Afshar (p. 86) (what are the chances of these facts coming up twice, nevermind three times!).  She tells them that, while in Sidaway the risk was considered too small to have to be told to patients without prompting, in Chester, the court found that the risk was material.  The lawyer's view is that, since the law increasingly prioritises autonomy, it would be difficult to justify not informing Beth of this risk. 

Furthermore, it does not matter that other doctors might not warn of this risk - recent cases show that a risk is material if the reasonable patient would wish to be told of it, so what other doctors would do is not determinative proof of reasonable conduct.  Indeed, Simon agrees with Marc that not to tell Beth of the risk because they are worried that she might refuse the operation is not only disrespectful of her autonomy, but also displaying a level of paternalism that the law no longer condones, and that medical ethics never supported. The tenor of the recent cases favour telling her of the risk.


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