Disputed consent for surgery

BACKGROUND

Mr A is a 52-year-old patient who has been diagnosed with a basal cell carcinoma on the side of his nose. Following discussion at a multidisciplinary meeting he is referred to Ms L, a consultant plastic surgeon, who discusses the surgical options available to him.

She explains the benefits and risks of surgery, including the possibility of nose deformity. Mr A signs the consent form and undergoes surgery to excise the growth.

Four weeks later, the hospital receives a letter of complaint from Mr A who is unhappy with the cosmetic outcome of the procedure. He says he did not realise how invasive the operation would be and states that Ms L failed to explain there were alternative options available for a “smaller” procedure. Mr A also says he is considering legal action.

It is noted that the patient’s copy of the consent form makes no mention of discussions relating to the risk of nasal deformity. However, the version held by the hospital does document this discussion and appears to have been amended by Ms L at a later date.

The hospital complaints manager explains to Ms L that the matter will be subject to a formal investigation and asks for her comments/reflections regarding the complaint and the amendment to the consent form.

ANALYSIS/OUTCOME

Ms L contacts an MDDUS medico-legal adviser (MLA) for help in preparing a response. The MLA advises Ms L to outline as much detail as possible about her involvement in the care of the patient, and in particular the decision-making and consent process. Ms L is advised that she should have access to the medical notes in order to prepare her response. She may also refer to her own recollection of her discussion with the patient or her usual practice in consenting for this procedure, and should explain clearly how her response has been formulated.

The MLA notes that a doctor’s reflections are an important part of a complaint response. This allows a doctor to demonstrate their insight into the concerns that have been raised, as well as identifying any learning points and resulting changes to practice.

He suggests that Ms L may mention any relevant training courses she has attended, explaining what she has learned and how she plans to apply this to her future practice. Ms L may also wish to consider supplementing her reflections with additional comments about her understanding of the General Medical Council’s guidance Decision making and consent, including any reference to refreshing her knowledge following the incident. She may also find useful learning materials/courses in the Training & CPD section of the MDDUS website, which includes webinars, online training and other resources.

On the matter of the consent form being changed to mention nasal deformity after the patient signed, Ms L is adamant that she had a detailed discussion with the patient on this potential risk but she simply forgot to write it into the form at the time, and she has reflected on her actions subsequently. The MLA advises that such a matter could raise serious questions over a doctor’s professionalism (and potentially probity) and suggests Ms L expands on her reflections on these points in her statement. In particular, she should clarify when exactly the changes to the form were made, in the interest of transparency.

She is advised that records should be made at the same time as events being recorded or as soon as possible afterwards. Any changes to the medical record should be dated and marked clearly with an explanation as to why they have been made. Ms L is advised she may wish to consider how she may have acted differently with the benefit of hindsight and how she would address such an issue in future.

Although not specifically requested by the complaints manager, Ms L would like to offer a sincere apology that the patient is unhappy with the outcome of the surgery. The MLA agrees that a sincere expression of regret can often be a useful addition to a statement such as this.

Ms L adds that she is now more mindful about her communication and consent-taking skills and takes care to ensure all appropriate information is discussed and included in a patient consent form. She also receives assistance from MDDUS in preparing her statement for a Trust disciplinary fact finding investigation regarding her retrospective entry in the records.