A new wrinkle in Montgomery? The surgeon faces the unexpected

Abstract

The surgeon is consulted by the patient, the situation is fully explained to the patient, the patient agrees to the operation. The patient is anaesthetised. An unexpected situation arises, things are not as the surgeon had imagined. Should he carry on and hope for the best? Or call the whole thing off? The law.

The patient consults the doctor. A patient history is taken, a diagnosis made, an operation suggested and explained, the patient agrees, a pre-assessment is made, the patient arrives at the hospital, the situation is explained to him, the patient signs the consent form, he mounts the operating table, he is given a general anaesthetic, the surgeon opens him up. The surgeon finds an unexpected problem, the situation is not as anticipated. Should the surgeon call the whole thing off, stitch the patient up again, remove the instruments, bring the patient back to consciousness, give the patient the opportunity to have the new situation explained, to reconsider, perhaps to seek a second opinion, perhaps to consult the family, perhaps not to proceed at all?

In reality, if the surgeon proceeds and everything turns out well, everybody will be happy. However, if the surgeon proceeds and everything turns out badly, the patient will consult the lawyers, and claim negligence against the doctor in not fully informing him of the risks and in carrying out the operation negligently, the two-pronged approach.

The Montgomery principle, Montgomery v Lancashire Health Board [2015] UKSC 11, simply stated, says that patient autonomy prevails over medical paternalism, interference with bodily integrity is for the patient to decide, and the doctor is obliged by law fully to inform the patient of the material risks so that the patient may give a fully informed consent, make a fully informed choice. The patient has his own rights, a consumer exercising choice, he is more than a passive recipient of medical services. Technology has brought a wide range of medical information to the notice of the public. The public is much better informed of medical matters than formerly. A material risk is a risk which if known to the patient as a reasonable person would be seen by him as significant or likely to be significant. The doctor is expected and required to be aware of the nature of the situation and to have the appropriate professional skill to identify the situation and to deal with it accordingly, but by way of an appropriate explanation (paras 74–93). Montgomery concerned pregnancy and childbirth, obstetrics and gynaecology, natural birth and caesarean birth, and the principal right of the mother to be informed of the true situation and the options and choices open to her (paras 108–117).

Many factors may be relevant. The patient may or may not be intelligent, educated, clever, able to understand the medical and allied issues. The doctor cannot be expected to describe and explain every conceivable risk. The patient may not be able to understand the full implications. The doctor does not wish to alarm the patient, “to frighten the horses”, to lose the trust of the patient, to act to the detriment of the health of the patient, to impair the chances of a confident recovery. Time and money would be wasted, nothing would be gained, indeed probably the reverse. Anyway the patient may be facing probable death if he were not to agree. All too often the patient says: “Doctor, please do whatever you think is best, I just do not wish to know.” A patient may decide that he does not wish to know the risks. But generally the doctor–patient relationship has become more of a partnership.

In a situation of necessity, for example the patient is brought into the hospital unconscious following a serious accident, then it is simply not possible for the doctor to consult the patient about the risks or indeed anything else, and the doctor must proceed in the patient’s best interests, as the doctor sees it.

In the unexpected situation the doctor probably could stop the operation, go back to square one, and the consultation with the patient would simply start up again in the light of the new-found information.

The patient must be given the information he wants or needs in a way he can understand. The patient needs to be treated with respect. He is entitled to a private life and self-determination. Disclosure of risk should bring therapeutic benefit to the patient. Thus will the relationship benefit for both parties and all involved. The doctor brings no pressure, the patient feels no pressure. But the doctor is at liberty to express his opinion in a forceful manner and in forceful language, though always making the options clear. The surgeon needs not only surgical skill but communication skill. There may be a big risk of only a small adverse outcome; there may be a small risk of a large or indeed possibly catastrophic adverse outcome.

What exactly is meant by unexpected? The surgeon may be taken by complete surprise. This unexpected situation is virtually unknown. There is nothing in the literature. It is not taught in the medical schools. The surgeon has no knowledge or experience of this situation. The duty of the doctor is to measure up to the standard of a professional doctor in those circumstances, the sort of standard properly to be expected of him, best medical practice. He is expected to observe the duty of candour, full and correct recording, discussion with colleagues, and keeping up-to-date in medicine. Conversely, although the surgeon did not expect the situation with this patient in the particular circumstances obtaining, the situation is in the literature, figures in training courses, is not uncommon, and has actually happened in the past to this surgeon, perhaps on a number of occasions. It is simply that the risk is known about, but was just unexpected in this case, i.e. unexpected but no surprise when it did actually happen. Certainly if there are any generally known risks, including unexpected risks, they ought to be explained to the patient in appropriate language.

Incidentally, the legal validity of the typical consent form, signed at his bedside almost immediately prior to the operation, by an apprehensive and tense patient waiting to be wheeled into the operating theatre, must be dubious if challenged before the judge.

Following Montgomery the medical profession were apprehensive that they were going to have to explain multiple complicated risks to patients, to no practical benefit. The situation appears to have settled down, the doctor, judging the character and personality of the patient, giving sufficient and appropriate information for the patient to give his fully informed consent, and the day to day practice appears to give a degree of satisfaction on all sides.

In the unexpected situation, if the situation is substantially different and serious the doctor would probably be justified in proceeding with the operation now called for in the changed circumstances, in the best interests of the patient. If the situation is not substantially different and not too serious, the doctor should indeed call the whole thing off. The astute doctor might raise the unexpected situation with the patient well before the operation, and this unexpected situation could or should be agreed with the patient as justifying the doctor in proceeding if he thinks that it would be in the best interests of the patient for the doctor to do so.