Consenting for pain

In the recent case of Ollosson v Lee [2019] EWHC 784 a patient was consented for a vasectomy.  He was told that there was a small risk, greater than that of early or late failure of the vasectomy, of chronic testicular pain as a potential complication, that the pain might affect the patient’s lifestyle, could be long-term and in the range mild to severe, and that there was no consensus about specific treatment for it.  It was indicated that the pain would in general be treated with over-the-counter medicine.  No mention was made of the possible need for treatment using morphine or referral to a pain clinic or the need for reversal of the vasectomy.

The patient developed chronic scrotal pain following the procedure.  He brought a claim against the doctor alleging that there had been a failure to advise of the risks associated with the procedure.  The evidence was that the risk of chronic pain was about 5% and that 0.9% might suffer severe pain affecting their quality of life 7 months’ post-operation.  The percentage suffering pain at the level of this patient was smaller.

The claim failed.  The judge held that it was not necessary to give the patient percentage risks.  It was adequate to describe the risk as ‘small’, “an everyday word which encompassed and satisfactorily conveyed the risk”.

The judge further held that a patient told of a ‘small’ risk could ask for clarification but in the absence of that it was only necessary to provide the patient with adequate information without their having to ask a question.  In this case that was done.

Learning points:

  1. This case illustrates possible limits to the information which must be given to properly inform a patient before an operation, although each case will be ‘fact sensitive’. While ‘small’ is a very imprecise number, it may be adequate to describe the risk of an operative risk. Here, on the evidence, that risk appeared to be less than 0.9%.  A possibility of ‘severe’ pain which might affect the patient’s lifestyle may be a sufficient description without indicating the nature of possible necessary treatment.
  2. Clinician’s regarding this case as support for being less than precise in describing risk or possible treatments for unfortunate outcomes might like to keep in mind that in a desire to properly inform a patient and to avoid possible litigation (or even the threat of it) it is probably wiser to be as precise as possible in describing risk, where the data is available, and the kind of treatment such an outcome might demand, where that can be sensibly summarised.
  3. It is not enough simply to give this information verbally to a patient. There must be some record (written notes or computer entries) made by the clinician to support what it is the clinician says was said, which may not be the same as what the patient recalls being said. (See for example the case of Hassell v Hillingdon NHS Foundation Trust considered in detail in Section 2.6 of Clinical Practice and the Law – a legal primer for clinicians)
  4. Interestingly both sides in the trial agreed that the information booklet provided to patients in advance of the procedure was inadequate, and on behalf of the clinician it was therefore necessary to rely on what was said by the clinician on the day of the procedure. There is no good reason why the information booklet should not be fully informative, and clinicians should review such booklets to ensure that they are adequate. Further relying on information given on the day of the procedure, when the patient arrives expecting the operation to be carried out and having made work and social arrangements to be there and for any necessary aftercare, is unwise and potentially negligent (see Thefaut v Johnson [2017] EWHC 497).

[Who or what is medico-legal minder?  Terms and conditions apply]