- This is another decision from Mr Justice Ritchie which, like CNZ v Bath, focusses on consent in an acute setting rather than the more leisurely context of the outpatient clinic.
- The Claimant suffered spinal cord injury as a result of the penetration of her spinal cord by an anaesthetic needle.
- An epidural had been recommended to provide post-operative pain relief following major bowel surgery. There were alternatives to an epidural, including patient controlled analgesia. The Claimant’s case was that it was a breach of duty to recommend epidural without giving any alternatives.
- Doctors made a total of 10 attempts at placing the epidural. The first three attempts were made whilst the Claimant was conscious. There was no criticism of these attempts.
- After these initial attempts the Claimant was distressed and in pain. Seven further attempts at placing the epidural were made after general anaesthesia had been induced. The last four of these were by a second anaesthetist. One of the seven ‘unconscious’ attempts led to the spinal cord injury.
- The Claimant’s case was that she had not consented to the further ‘asleep’ attempts being made. The first she knew that the anaesthetist had continued trying to place the epidural after she was asleep was many days after the operation. At that point the anaesthetist gave a partial account of what had happened – but even then did not tell the Claimant what the total number of attempts had been or that a second doctor had become involved.
- The judge was very critical of the consenting process. He found firstly that no alternatives had been given to the Claimant either in the outpatient clinic or immediately prior to the procedure:
“The Claimant gave verbal consent which was not “informed consent” and so was invalid because she was not informed of the relative risks and benefits of other options including patient controlled analgesia.”
- This breach was not causative because the Claimant accepted that with a proper consenting process she would have followed a clear recommendation for epidural.
- There was then a further breach when the anaesthetist failed to obtain consent to making more attempts at siting the epidural once the Claimant was asleep:
“Doctor Rice then became determined to put the Claimant to sleep and to continue with [unconscious epidural attempts], however she failed to explain to the Claimant that she would continue with unconscious and she failed to set out the alternatives (specifically patient controlled analgesia) so that the Claimant could choose. Her professional responsibility at that stage was to gain the Claimant’s informed consent to the way forwards but she did not do so. As a result, she did not make any notes on the Anaesthetic Record of informing the Claimant of her post-operative pain relief options or of any verbal consent to more attempted epidurals. This was a further breach of her professional consenting and note taking obligations.”
- This breach was causative, the judge accepting the Claimant’s evidence that by the time she had already endured three failed attempts at siting the epidural she would not have agreed to any more had she been asked.
- This decision is important because it shows:
- The importance of record keeping – the doctor’s assertion that she had obtained valid consent both pre-procedure and prior to the further ‘asleep’ attempts was fundamentally undermined by her lack of records;
- That patients are entitled to make choices even when in significant distress and ‘in the heat of the moment’, not just in the more relaxed environment of the outpatient clinic.
John de Bono KC acted for the claimant and was instructed by Penningtons Manches Cooper.