The medico legal challenges of gaining informed consent for spinal surgery

13 Jun 2019

Mr Patrick McKenna

In this article Mr McKenna, Consultant Spinal Surgeon, discusses the issues surrounding consent and specifically informed consent related to spinal surgery, an inherently complex  surgical specialty.

Consent is defined as obtaining agreement or permission; however, informed consent in the context of medicine requires the practitioner to provide a patient with a full understanding of the possible consequences of a procedure or treatment before the patient grants their permission for it to be carried out, usually in writing.  The difference between consent and informed consent is critical as there is an explicit obligation on the practitioner to ensure the patient understands the procedure or treatment they are agreeing to, all of the associated risks that could happen as a result of the procedure and the likelihood of the condition they are being treating for re-occurring. Obtaining informed consent requires the practitioner to assess and tell the patient of the significance of the risk from the procedure on the patient’s life and quality of life.

Informed consent requires some education of the patient by the practitioner about relevant anatomical and medical issues to allow them to truly understand the procedure they are consenting to and the risks involved. The amount of information required to achieve the standard required for informed consent will vary depending on the complexity of the illness, condition and treatment or procedure, as well as the risks of the treatment.  The practitioner must assess the individual patient’s understanding of their illness and their intellectual capability and adjust their explanation accordingly to be sure the patient understands fully what they are consenting to.

From a medico legal perspective, recent cases like Tracy Hassell v Hillingdon Hospitals NHS Foundation Trust [2018] and Jones v Royal Devon & Exeter NHS Foundation Trust [2015] highlight some of the issues that surround informed consent in spinal surgery. In both cases, it was shown to be challenging to try to obtain informed consent on the day of surgery, especially if the patient feels pressured or is in a heightened emotional state that may prevent them from processing the information well enough for them to give informed consent. In the Hassell case the judge felt that the claimant was insufficiently informed about alternative treatment options and was not fully aware of the risk and significance of cord damage as a possible outcome of the procedure she was undergoing.

Surgeons and physicians must be mindful about a patient giving consent based on partial information. In complex surgery like some spinal surgery, a patient may feel the result of the surgery is not as optimal as they had hoped or that it has had an unwanted impact on their life going forward.  In cases like these with potentially variable outcomes,, surgeons should discuss all of the alternative treatment options with the patient, and this should take place ideally well before the surgery. The practitioner can then be reassured that the patient has had time to fully consider their options, understood the discussion and potential outcomes and consequently that the patient’s consent is properly informed.

Excellent communication, ideally jargon-free is key between the patient and the practitioner and best  practice is to have a written record of the dialogue with the patient, explaining the medical context and treatment options as well as any potential risks and variable outcomes to demonstrate the patient gave informed consent.   It’s worth considering that in the medico legal cases cited above, the presence of a signed consent form by the patient was not in itself sufficient to demonstrate that the practitioner had obtained the informed consent of the patient before the treatment or procedure.  Accountability is unequivocally with the practitioner to educate those they treat to a level where they are able to understand the treatment or surgery they are undertaking to be in a position to provide their informed consent to it taking place.

Mr Patrick McKenna is a highly skilled spinal surgeon and expert witness.  His practice is at The London Spine Clinic in Harley Street and at Circle Hospital in Reading. He can be instructed through Medicollegal Partners on 020 7118 0650 or info@medicolegal-partners.com.  He accepts instructions for both personal injury and medical negligence claims for either defendant or claimant. His clinical practice includes all aspects of Spinal Surgery including cervical and lumbar degenerative conditions, tumour, trauma and scoliosis. His special interest is in anterior and lateral surgery of the lumbar spine, using minimally invasive surgical techniques to promote early recovery. He also performs motion preserving surgery (total disc arthroplasty) of the cervical and lumbar spine. Read more about Mr McKenna in his biography and CV.