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).

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Giving notice of matters capable of undermining your opinion or your credibility

The Criminal Practice Directions (CPD) have just been amended in relation to expert evidence provided for criminal proceedings.  The requirements of the new Directions are expressly applicable to criminal proceedings but their content is just as applicable to any expert seeking to give unbiased and reliable evidence to any court or tribunal.  To look at that the other way round, the matters to which this Direction relate are all matters which could seriously embarrass an expert and the party by whom the expert is instructed in any proceedings if admitted to for the first time under cross-examination, and the failure to disclose them could lead to serious consequences for the expert, including financial penalty and reference to the appropriate professional body.

CPD 19A.7 gives examples of matters which should be disclosed as potentially undermining the reliability of an expert’s opinion or detracting from the credibility or impartiality of an expert, both in relation to the expert and in relation to any corporation or body for which the expert works.

  1. any fee arrangement under which the amount or payment of the expert’s fees is in any way dependent on the outcome of the case;
  2. any conflict of interest of any kind, other than a potential conflict disclosed in the expert’s report;
  3. adverse judicial comment;
  4. any case in which an appeal has been allowed by reason of a deficiency in the expert’s evidence;
  5. any adverse finding, disciplinary proceedings or other criticism by a professional, regulatory or registration body or authority;
  6. any such adverse finding or disciplinary proceedings against, or other such criticism of, others associated with the corporation or other body with which the expert works which calls into question the quality of that corporation’s or body’s work generally;
  7. conviction of a criminal offence in circumstances that suggest: (i) a lack of respect for, or understanding of, the interests of the criminal justice system (for example, perjury; acts perverting or tending to pervert the course of public justice),  (ii) dishonesty (for example, theft or fraud), or  (iii) a lack of personal integrity (for example, corruption or a sexual offence);
  8. lack of an accreditation or other commitment to prescribed standards where that might be expected;
  9. a history of failure or poor performance in quality or proficiency assessments;
  10. a history of lax or inadequate scientific methods;
  11. a history of failure to observe recognised standards in the expert’s area of expertise;
  12. a history of failure to adhere to the standards expected of an expert witness in the criminal justice system.

CPD 19A.8 states that where there has been adverse comment in the course of a judgment, it would be reasonable to expect those criticised to supply information about the conduct and conclusions of any independent investigation into the incident, and to explain what steps, if any, have been taken to address the criticism.

The potential sanction in criminal proceedings under CPD 19A.9 is ‘a searching examination of the circumstances by the court’ of a failure to disclose, and potentially the exclusion of the expert evidence in the proceedings.  But in any proceedings these would all be matters likely to impact on the reliability of the expert’s evidence and should be raised by the expert with the instructing solicitor if not referred to in the report itself.

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