09HDC01565 - Health and Disability Commissioner

Health and Disability Commissioner
Information and consent — proposed treatment — No breach
207. Under Right 6(1)(b) of the Code, Mr A was entitled to the information that a
reasonable patient in his position would expect to receive, including an explanation of
the options available, an assessment of the expected risks, side effects, benefits and
costs of each option. 40 Under Right 7(1), services should have been provided to Mr A
only if he had made an informed choice and given informed consent. 41
208. Overall responsibility for ensuring Mr A was provided with sufficient information
about the proposed treatment and obtaining informed consent lay with Dr E. As stated
in a leading text: ―Ordinarily each member of the team of doctors will be deemed to
have separately undertaken the care of the patient when so assigned by the responsible
consultant. However, the consultant as leader of the team remains responsible
throughout…‖. 42
209. When Dr E diagnosed Mr A with a Chiari malformation in 2008, he concluded that
this would best be managed by surgery. Dr E states he did not go through the consent
process at this point, but he noted in his letter to Dr D that he had outlined the risks
and benefits of the procedure to Mr A.
210. On the day before surgery, Dr F initiated the written consent process. It was clear at
the end of Dr F‘s discussion with Mr A, that Mr A had reservations about the surgery.
Dr F did not ask Mr A to sign the consent form at that point, but suggested a further
discussion after Mr A had had the opportunity to consider the information Dr F had
provided.
211. When Dr E was informed of the situation, he went to speak with Mr A himself. Dr F
and Dr G were also present, but Mrs C was not.
212. Dr E made it clear to Mr A that he did not have to have the surgery, noting that now
that he had a desk job he was relatively asymptomatic, it would therefore be
reasonable to have a period of ―expectant observation‖. Dr E and Dr F both recall that
Mr A‘s initial decision was to not proceed with the surgery, but that he then changed
his mind. Dr E states that he reiterated that Mr A would be no better than he was then
(clinically asymptomatic) and that the only benefit would be his likely return to
physical exercise. Dr E was satisfied with the explanation of risks that Dr F had given
to Mr A earlier (as documented by Dr F).
213. It is not possible to determine whether, following his initial discussion with Dr E four
months earlier, Mr A had understood that the proposed surgery was not minor.
However, it is evident that he did understand this following his initial discussion with
Dr F. Mr A clearly had concerns, and was particularly anxious about the possibility of
40 Right 6(1) — Every consumer has the right to the information that a reasonable consumer, in that
consumer‘s circumstances, would expect to receive, including [...] (b) an explanation of the options
available, including an assessment of the expected risks, side effects, benefits, and costs of each option.
41 Right 7(1) — Services may be provided to a consumer only if that consumer makes an informed
choice and gives informed consent, except where any enactment, or the common law, or any other
provision in this Code provides otherwise.
42 Kennedy, I. and Grubb, A. Medical Law (London: Butterworths, 2000), p 281.
5 September 2012 36
Names have been removed (except Canterbury DHB and the experts who advised on this case) to
protect privacy. Identifying letters are assigned in alphabetical order and bear no relationship to the
person’s actual name.