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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Your statement of truth really, really matters!

Not many court experts, signing the statement of truth at the end of their reports, are thinking about the clang of the prison gates.  The recent decision in Liverpool Victoria Insurance v Zafar [2019] EWCA Civ 392 is a reminder that they should.

The medical expert revised a prognosis in his medical report by adopting his instructing solicitor’s suggestion, and without re-examining the client or exercising any professional judgment.  There was no clinical justification for the amendment.  It was not perhaps surprising that the judge had held that the expert was reckless as to the truth of the revision and as to whether that would mislead the court, and for that contempt of court passed a sentence of 6 months imprisonment but suspended it.

The Court of Appeal was asked to find the sentence unduly lenient.  It did.

It was emphasised that making a false statement verified by a statement of truth is a serious offence.  Doing so deliberately or recklessly would usually result in committal to prison, and the offence remained serious even if there was no direct financial motive on the part of the expert for the false statement.  In the case of an expert witness, it made little difference whether the false statement was made deliberately or recklessly.

The maximum sentence for contempt is 2 years’ imprisonment.  A sentence “well in excess of 12 months” was the starting point.  Early admission and co-operation, genuine remorse and previous unblemished professional record were all relevant, but breach of the court’s trust by a professional witness could be expected to result in severe sanctions.  That experts in this position will have brought ruin upon themselves was not a reason not to impose a significant custodial sentence.

The Court of Appeal indicated immediate custodial sentence would be the norm, and there would have to be powerful factors to justify suspending the sentence.

The expert in this case was not re-sentenced as the guidelines now available by this judgment were not available when he was sentenced.  However it was made clear that now an appropriate sentence would be an immediate custodial sentence significantly longer than six months.

Conclusion

An expert must take the statement of truth required at the conclusion of an expert report for any court or tribunal extremely serious.  Although rarely read, as it is pasted into a report or appears in the template, it does bear reading.  To recklessly or deliberately misstate matters in the report in breach of that statement of truth is likely to result in an immediate custodial sentence, as well as terminal consequences for the expert’s professional status.

Similar weight should also be given to the sign-off of a joint statement following a joint discussion between experts.  In civil claims this requires a brief restatement that the experts recognise their duties to the court and that they have not been instructed to avoid reaching agreement on any matter within their competence. An intentional or reckless false statement is likely to have similar consequences.

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