09HDC01565 - Health and Disability Commissioner
09HDC01565 - Health and Disability Commissioner
09HDC01565 - Health and Disability Commissioner
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<strong>Health</strong> <strong>and</strong> <strong>Disability</strong> <strong>Commissioner</strong><br />
also gave no assurance as to which doctor would be performing the surgery; simply<br />
that the doctor concerned would be appropriately experienced.<br />
221. Dr E told HDC that, if asked, he would have told Mr A that his surgery would be<br />
performed using a ―team approach‖ <strong>and</strong> that given the involvement of Dr E, Dr G <strong>and</strong><br />
Dr F in the consent <strong>and</strong> preoperative process, it is reasonable to conclude that Mr A<br />
may have understood that a team approach would be taken, with Dr E leading that<br />
team. This is, in fact, what occurred. Nevertheless, while it may be open to me to<br />
interpret what occurred as possibly consistent with Mr A‘s underst<strong>and</strong>ing, Dr E never<br />
expressly advised Mr A that Dr G <strong>and</strong> Dr F would actually be performing his surgery<br />
(albeit under Dr E‘s direct supervision).<br />
222. Dr F provided the initial information to Mr A about the procedure <strong>and</strong> its potential<br />
risks. In response to my provisional opinion, Dr E submitted that ―the fact that the<br />
registrar did the informed consent would, I suggest, lead any reasonable patient to<br />
conclude that the operation would not entirely or even partially be performed by me‖.<br />
However, Dr E responded to Mr A‘s concerns <strong>and</strong> provided further information <strong>and</strong><br />
reassurance. This involvement could have led Mr A to believe that Dr E was<br />
performing the surgery. Certainly, there was no information provided to indicate to<br />
Mr A the extent of Dr G‘s involvement.<br />
223. In his response to HDC, Dr E asserted that, given the post-mortem findings did not<br />
point to any surgical mishap, it was not relevant whether or not Mr A was aware of<br />
the precise makeup of the surgical team. There is no suggestion in this case that the<br />
operating surgeon lacked capability <strong>and</strong> the evidence is that the operation was<br />
technically sound. However, a patient considering surgery always has the right to<br />
receive the information that a reasonable patient in that patient‘s circumstances would<br />
expect to receive. In many circumstances, this will include information as to who will<br />
be performing that surgery.<br />
224. In response to my provisional opinion, CDHB submitted that the identity <strong>and</strong><br />
qualifications of the provider are not matters listed under Right 6(1) of the Code. I<br />
note that by virtue of the word ―includes‖, the specific items of information listed in<br />
Right 6(1)(a) to (g) are examples of such information <strong>and</strong> are not an exhaustive list.<br />
Furthermore, Right 6(1) relates to information that the patient has the right to receive<br />
<strong>and</strong> does not require that the patient requests the information.<br />
225. I do not accept that if a patient fails to ask who will perform their surgery this implies<br />
that this is not information that a reasonable patient in that patient‘s circumstances<br />
would expect to receive.<br />
226. Dr E submitted in response to my provisional opinion that most patients having<br />
operations in a public training hospital ―expect that junior doctors <strong>and</strong> training<br />
specialists will be involved in the treatment process‖. Patients may not necessarily be<br />
aware that a hospital is a training hospital <strong>and</strong>, even if they are aware of this, this does<br />
not mean the patient knows that the involvement of trainees ―in the treatment process‖<br />
will extend to trainees performing their surgery.<br />
5 September 2012 38<br />
Names have been removed (except Canterbury DHB <strong>and</strong> the experts who advised on this case) to<br />
protect privacy. Identifying letters are assigned in alphabetical order <strong>and</strong> bear no relationship to the<br />
person’s actual name.