Informed consent in neurosurgery with particular reference to alternatives to proposed surgery. Updated case law including McCulloch .

Abstract

Introduction

Informed consent is a crucial element in neurosurgical practice; failures of the consenting process are a common cause of litigation in neurosurgery and judgments that have particular relevance to neurosurgical practice will be reviewed here. Guidance for consent based upon current case law is discussed.

Methods

The legal databases BAILII and WestLaw were searched using the search term “informed consent”. The BAILII search yielded 86 abstracts, WestLaw yielded 33. There were 15 duplicates. Ten of the remaining 104 abstracts were commentaries, leaving 94 judgments. From those judgments a further 21 cases were added. A total of 115 judgments were reviewed by both authors.

Results

A total of 23 judgments dealing with issues of informed consent in neurosurgical and other surgical practice were selected. The cases and their implications for neurosurgical consent are discussed below.

Discussion

When proposing a surgical procedure to a competent adult, the treating surgeon must discuss the benefits, risks and alternatives to treatment with the patient. The surgeon can be guided by professional guidance from the GMC, or another professional body, and/or case law. Relevant issues include: (i) the risks and benefits of surgery; (ii) information that is accurate (or inaccurate, incorrect, missing or late information); (iii) established practice; (iv) the current state of knowledge; (v) reasonable alternative treatments; and (vi) surgery performed on a different day or by a different surgeon.