Lawyers the beneficiaries of new patient consent guidelines

When I drove past Dublin Castle on the evening of May 22nd last year, jubilant crowds were celebrating the extension of civil marriage rights to same-sex couples and it occurred to me that, of all people, it must be the lawyers who were really popping the champagne corks. More marriages means more divorce means lots more fees to be earned down at the family court.

Last year a landmark ruling on medical consent by the Supreme Court in the UK will enrich them further and, in Ireland in particular, will heap more misery on a medical profession already cowed to the point of impotence by fear of litigation and loss of reputation.

Before the ruling, the manner and extent to which the risks of a procedure were explained to a patient were left to the discretion of the treating doctor. Now patients are expected to be informed in detail of “any risks” material to their welfare. Not only that but the Royal College of Surgeons issued guidelines saying that consent must be tailored to the individual, that the doctor must “get to know the patient well enough to understand their views and values” and that all treatment options must be explained.

The guidelines also state that in addition to written consent, a record of the discussion including contemporaneous documents, web-links and other hard copy should be included in the patient’s notes.

This is lawyer nirvana. All entirely laudable, of course. As for the doctors – “about time” I hear you say. Consider, though, the daily situation in my own department. Due to theatre closures and shortage of beds, the patients who come for surgery will likely have been waiting for more than a year. It will be that long since any doctor of seniority talked to them about their proposed operation. Most patients receive virtually no notice of their admission. If a bed gets freed up, it is usually after midday. A patient selected from the waiting list will be called up and asked if he or she can come in straight away. They could well live on the other side of the country and have personal affairs to sort out, so eventual admission to the hospital as late as 10pm or even later would not be unusual.

Little knowledge

At that point they will see a junior doctor, who, thanks to the European Working Directive, is probably assigned to a different consultant from the one actually looking after them. They will likely never see that junior doctor again and in any case he probably has little knowledge or experience of the operation they are being admitted for. Because they have waited over a year for this admission, their symptoms might well have changed and their scans will be out of date, so at a time the next morning when calm discussion should be taking place, there is a mad rush to repeat scans and clinical assessment.

For fear of wasting more time another case will be brought forward in the operating theatre tying up their surgeon who might otherwise have had time to talk to them. Even if the consultant at this point were able to spend the recommended half hour discussing the pros and cons of surgery in the pre-anaesthetic room, I think anyone would agree that a patient lying on a trolley about to be wheeled in for an anaesthetic would have to have nerves of steel to take it all in and ask pertinent questions.

The change will be perceived as good for patients, and if followed to the letter will, without doubt, be better for the self-preservation and mental health of doctors. The problem is waiting lists must inevitably get considerably longer.

It is widely believed by hospital consultants in Ireland that all negligence claims against them regardless of merit will inevitably be settled in favour of the plaintiff.

Defence lawyers work on the basis that if there is even the smallest chink in the doctor’s armour – a conversation not assiduously noted, a test result not in the chart, it is better to settle for a four-figure sum rather than take their chances in court and see costs possibly spiralling into six figures. Plaintiffs and their lawyers know this. It can only get worse now that such a high barrier for consent has been set.

Extended waiting lists

The end result apart from extended waiting lists is excoriatingly expensive insurance and ludicrously defensive medicine – we are close to the point where everyone with a headache and back ache will have an MRI “just in case”. Instead of doctors making decisions based on hard won experience, day-to-day practice is increasingly becoming reflexive. It’s all about paradigms and protocols now. Though I and my colleagues will, as always, adhere to the recommendations of our professional bodies, it is hard not to be cynical about a consent process that must cover all possibilities.

Is it not self-evident that neurosurgical (and other) operations carry an inevitable though small risk of serious complications and that they would hardly be recommended if they were not intended to provide significant benefits?

Do all patients really want to hear about all the dreadful things that could conceivably happen? I have always held that patients have as much a right not to know as to know, and the “it’s okay you’re the doctor, spare me the details” response is still a very common one from older patients.

Of course anyone who has been harmed by medical malpractice is entitled to compensation, but I am sceptical that tying up so much of a doctor’s time repeatedly explaining all the nuances of an operation is the best way to use his skills. It will mean many fewer patients will be treated and those who are will be more fearful and anxious.

The legal profession must again have cause for celebration. Instead of having to consider such vague concepts as common sense, they will now have a template courtesy of the Royal College of Surgeons. My advice to aspiring lawyers looking for a thriving practice over the next decade: take up medical malpractice and you won’t go far wrong if your niche is informed consent.

Steven Young is a consultant neurosurgeon in Beaumont Hospital