Trial win on informed consent case
Brian Pockett v Colchester Hospital University NHS Foundation Trust [27.02.18]
This recent case provides helpful guidance for clinicians on the law of informed consent post-Montgomery.
The core of this claim is an allegation that the Trust, through its medics, failed to provide Mr Pockett with material information in order to enable him to make an informed decision as to whether he should undertake the recommended treatment of a laparoscopic abdominoperineal resection leaving him with a stoma.
Prior to surgery, Mr Pockett completed a course of chemo-radiotherapy (CRT). Following the CRT, he attended an appointment to discuss his response to CRT and next steps. Although his MRI scan showed that the tumour had shrunk significantly, the surgeon felt and saw remaining tumour. The surgeon confirmed that as Mr Pockett had wished to be cured, there was no discussion of the options of no treatment. Mr Pockett proceeded to have the surgery which left him with a stoma. After surgery, it was confirmed that the he was cancer-free.
Whilst no complaint was made regarding the quality of the treatment provided, Mr Pockett alleged that, had he been provided with information regarding research on patients who were found cancer free following CRT, he would not have undergone the surgery, as he did not want to live with a permanent stoma. Mr Pockett therefore alleged that he had not been fully informed when he consented to the surgery.
The court decided that there was no breach of duty arising from the failure to advise Mr Pockett of the research that found some people cancer free after CRT due to the following reasons:
- There was no clear body of evidence as to what proportion of individuals would be cancer free after CRT, or what individuals and types of tumours would respond to CRT without the additional need for surgery.
- CRT is undertaken, as explained by Mr Paraskeva (Expert instructed on behalf of the Trust), to shrink the tumour to enable surgery, not to eradicate the tumour.
The court confirmed that it would have been inappropriate for the surgeon to provide the information about the research on cancer free patients after CRT alone. Indeed the court stated that disclosure to the claimant of this research would have been detrimental as the knowledge of the consequences of no surgery were far too uncertain.
The court confirmed its decision does not go against Montgomery, but that this case is very different and more complicated. In addition, in Mr Pockett’s case there was no alternative option to having surgery after CRT if the patient decides to seek a cure.
Application of Montgomery
When the issues are complicated it is the job of the clinician to understand all the research involved in that particular area. This will enable the clinician to determine what the best treatment options are. It will also ensure that the clinician gives information, which is truly relevant and material to the patient in making a decision. Whilst a patient is autonomous, the information provided needs to be able to assist the patient in coming to a conclusion.
The obligation on the clinician to inform the patient is not limitless and the court confirmed that there are two elements to informed consent:
- Clinicians must decide what treatment options are open to a patient. This decision process falls within the Bolam test in terms of what is reasonable to offer a patient.
- Once the treatment options have been determined by the clinician, they must be discussed with the patient in language the patient comprehends, including a discussion of the risks, benefits and options, in order to facilitate a genuinely informed choice.
What was made clear in this case is that a patient, in making an informed decision, is not expected to know about every single possibility. It is for the clinician to know what viable options are available and to fully discuss those options.
It confirms that the onus on clinicians is to provide information that is helpful for a patient to make an informed choice. This ensures that the patient is informed but equally takes a common sense approach of not providing all manner of unsubstantiated research and experimental treatment options.