09HDC01565 - Health and Disability Commissioner

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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.
Opinion 09HDC01565 paralysis. He had the opportunity to think about his situation, to discuss it with family, and to speak with his GP, before speaking with the responsible surgeon, Dr E. Mr A also had the opportunity to consider the matter further that evening after speaking with Dr E, and he was able to withdraw his consent. 214. I consider it is likely that Mr A was aware that the proposed surgery was not minor and that he knew it was not essential or urgent. It was made clear that surgery may not fix his problem with headaches, and I consider it reasonable to conclude that he would have understood that if the problem was not fixed, he would be unable to return to work. Although respiratory depression was not specified as a possible complication, other potential serious surgical complications were discussed and documented. It was made clear that there was a risk of death, even if the word ―death‖ was not used. The consent for anaesthesia also noted the potential for rare and serious complications. The risk of serious complications was considered low. 215. The cause of Mr A‘s death is not known. CDHB submitted that respiratory failure after Chiari malformation surgery is not common or well-known. 216. I note the advice of my neurosurgical expert, Dr Nye, that respiratory depression is not among the most common complications of this type of surgery, and that the ―frequency of the occurrence of respiratory depression as a complication of posterior fossa cranial surgery relates to at least in part the magnitude of the procedure undergone which in this instance would not be considered great‖. I note also Dr Nye‘s view that there were no other treatment options that should have been discussed with Mr A, aside from that which was discussed — the period of expectant observation. 217. It is evident that Mr A gave careful consideration to the information he had been given, understood that he did not have to proceed with surgery, and did not give his consent lightly. I consider that he appreciated the seriousness of the procedure and its associated risks. Ideally he should have been informed of the risk of respiratory depression, but overall I find that Mr A was provided with adequate information in relation to the nature of the surgery and its risks. 218. I note that the consent process for this type of surgery at CDHB now specifies the risks of respiratory depression and death. Information and consent — involvement of trainee neurosurgeons — Other comment 219. Dr E and Dr F have provided detailed accounts of the consent process undertaken with Mr A. However, there is one issue in relation to preoperative information that was problematic: Dr E did not inform Mr A that the surgery was to be performed by Dr G and Dr F. 220. Mrs C states that she and her son were under the impression that Dr E would be performing the surgery personally. Dr E said that he did not tell Mr A that he would be performing the surgery, nor did he state the opposite. In his response to my provisional opinion, Dr E states that Mr A could have asked who was doing the surgery if he was concerned about this, and the fact that he did not do so indicates he was not as concerned as Mrs C suggests. Dr E notes that the relevant consent form 37 5 September 2012 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.
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09HDC01565 - Health and Disability Commissioner

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