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Consent to Medical Treatment: Must the Surgeon Advise Who Will Operate? Can the Patient Choose? - Paul Sankey, Foot Anstey LLP

04/04/17. Does a patient have a right to choose who will carry out their operation? Is her consent to treatment valid if there is a late change of surgeon? These are questions which have caused concern to many medical professionals following the decision in Kathleen Jones v Royal Devon & Exeter NHS Foundation Trust in September 2015. That decision is one of several in the wake of the landmark Supreme Court decision in Montgomery v Lanarkshire Health, which redefined a doctor's duty in advising and obtaining consent to treatment.

The Facts

Mrs Jones was found to have stenosis in her lumbar spine. In March 2010 was advised by Mr C, an experienced surgeon, to undergo decompression of her spine. Mr C was said to have a local and national reputation. She had confidence in him. She expected him to be her surgeon. When it seemed that he would be unavailable for a few weeks, she consulted her GP. On her GP's advice she decided to delay her operation. The operation was then listed for July 2010.

Shortly beforehand she saw an experienced registrar (shortly to take up a consultant post). He took her through the consent process but did not say Mr C would not be there to operate. She signed a consent form which included the words, 'I understand that you cannot give me a guarantee that a particular person will perform the procedure. The person will, however, have appropriate experience.' (In evidence she was unclear whether she had read this although she had read at least some of the form.) On the day of surgery she discovered that Mr S and not Mr C would be operating. By then her husband had gone home. She felt committed to go ahead.

Mr S performed the operation. Unfortunately he punctured the dura and she suffered an injury to the cauda equina. She was left with bladder and bowel dysfunction and numbness of the perineum, buttock and leg.

The Claim

She brought a claim against the Trust. She alleged a breach of duty in the performance of the operation. She also alleged that she had not given informed consent to Mr S carrying out the procedure, relying on the Supreme Court's decision in Montgomery v Lanarkshire Health Board...

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