Montgomery “Informed Consent” principles extended to Post-Operative Care?

In my BLOG published 22nd March last, titled “Is a Medical Consultant negligent in not advising the patient of all risks involved in choice of treatment”, I reviewed the decision of the UK Supreme Court in the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11, issued on 11 March 2015. I advised that it had now been decided by the highest Court in the UK that the law made it very clear that a doctor was obliged to explain all material risks to the patient in advance of surgery.

 
The ink was hardly dry on that Decision when the Queen`s Bench High Court in England followed with another Decision on Informed Consent, but this time touching on post-operative care.

 

In the case of David Spencer –v- Hillingdon Hospital NHS Trust [2015] EWHC 1058 (QB), heard 23-25 March 2015, Mr Spencer underwent surgery for a right inguinal repair but no documentation given to him, either before or after surgery prior to discharge, advised of the possibility that he might suffer a deep vein thrombosis or pulmonary embolism as a consequence of his surgery in the weeks following his surgery. This was despite the fact that, before the operation was performed on the 1st February 2010, Mr Spencer had pneumatic boots placed on both legs, which are a device that is intended to improve a patient`s blood circulation, so as to reduce the risk of a patient suffering from deep vein thrombosis.

 
Advice on Discharge from Hospital

 
When discharged from hospital Mr Spencer was provided with a pamphlet entitled:
“Hernia Repair – Information for Patients” which stated:
“If you have any problems following your discharge then please telephone the Hillingdon Hospital switchboard … and ask to speak to the to the Senior House Officer”.

 
And Symptoms developed

 

Despite reporting “feeling unwell” by phone call to the hospital on the 2nd February and subsequent attendances with his GP and the hospital, subsequently suffering from calf pain (as outlined at Paras 12 to 14 of the linked Decision) no one appears to have advised the patient during that period either of the possibility that he may have been suffering a deep vein thrombosis and was at risk of developing a pulmonary embolism. Ultimately, both calves became rock hard but Mr Spencer did not advise the hospital of this, not realizing the significance, as he put these symptoms down to his inactivity after his surgery. On the 23rd April Mr Spencer was admitted to hospital via the A&E department suffering from severe shortness of breath, where it was subsequently ascertained that he had suffered 2 acute episodes of pulmonary embolism.

 
The issue for the Court

 

Mr Spencer`s pleaded case was that, before his discharge, he should have been provided with verbal and written information on the signs and symptoms of deep vein thrombosis and pulmonary embolism (see Para 20 of the linked Decision). While there was some dispute as to exactly what advice had been given by the hospital personnel (which was not helped by the fact that some of those personnel were not called by the hospital to give evidence in Court), Judge Collender was satisfied that Mr Spencer has not been expressly told of the risks of such complications. He should have been told; despite the fact that it was accepted that he was not at high risk. In fact, the patient`s own Medical Expert stated that the incidence of pulmonary embolism after inguinal hernia repair was 0.9% and 0.7% for deep vein thrombosis. The Judge was satisfied that, had Mr Spencer been advised of this risk, he would have alerted the hospital of these symptoms sooner.
Fortunately for Mr Spencer, on admission to hospital on the 23rd April, once diagnosed, he was treated with blood thinning medication and his condition improved, so that he could be discharged home with medication on the 27th April. The Decision does not deal with how long Mr Spencer continued to suffer, as compensation of £17,500 was agreed in advance of the Hearing, subject to liability, and the Judge was therefore not obliged to record or value the subsequent suffering.

 
The influence of Montgomery

 
In coming to his Decision, Judge Collender (at Para 32) stated that “Montgomery is clearly a decision which demonstrates a new development in the law as it relates to the law on informed consent ..” and stated that he considered the Montgomery Decision relevant to the consideration of the facts of this case. He stated that “ … the ordinary sensible patient would be justifiably aggrieved not to have been given the information at the heart of this case when fully appraised of the significance of it”. He concluded that Mr Spencer had not been advised of the possibility of developing a pulmonary embolism and that accordingly the hospital was in breach of duty.

 
Implications of the Decision?

 
While the writer believes that every surgery under general anaesthetic carries the risk of a pulmonary embolism, it must be borne in mind that the Spencer Decision only requires that advice be given of possible specific complications where there is a material risk. What however is a material risk will depend on the circumstances of the particular case. While the Judge did not state that advice must be given in writing (e.g., by a Pamphlet given to the patient on Discharge) the writer would suggest that hospitals would be well advised to update their Discharge Pamphlets.