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14 November, 2019

Lord Glennie rejects claim that surgery was performed without the pursuer’s informed consent

Allan Johnstone v Grampian Health Board [2019] CSOH 90

Case comment by Michael Way, advocate

13 November 2019

Facts

The pursuer suffers from acromegaly, which results when the pituitary gland produces excessive growth hormone and can result in benign tumours growing in the pituitary gland and acute arthritis. In 1980, the pursuer underwent successful surgery in connection with his acromegaly. By 2010, the pursuer’s condition was reviewed and MRIs showed tissue suggestive of a persistent pituitary adenoma. There were multi-disciplinary team (“MDT”) discussions about how to deal with this. Endoscopic surgery or radiosurgery were considered possible.

In September 2010, the pursuer and his wife met with consultant neurosurgeon, Mr Kamel. Accounts differed between the parties as to the nature and content of their discussions. The result of the meeting, however, was that the pursuer was listed for surgery. The pursuer underwent surgery on 31 January 2011 and signed a consent form. There was a further dispute about whether any explanation was given prior to the operation.

After surgery (where no tumour was found) the pursuer was discharged from hospital. He became unwell. He suffered a cerebrospinal fluid leak and meningitis, with a result that he will require medication for the rest of his life and now suffers from other medical issues. In the event of liability being found, quantum had been agreed and so these matters were not in issue.

Issues

There was one principal issue for the Court:

1. Did the pursuer give true consent on the basis of full or sufficient information about the potential risks of the operation, the alternative treatments available and the risks attached to them, and the option of simply doing nothing – or not?

Decision

Informed Consent

This case relied on the Supreme Court authority of Montgomery v Lanarkshire Health Board 2015 SC (UKSC) 63. Lord Glennie summarised the pursuer’s essentially straightforward case at [122]. The defenders had a duty to take reasonable care to ensure the pursuer was aware of any material risks, reasonable alternatives and the option of having no treatment. The defenders failed in this duty. Any consent given by the pursuer was therefore, not true andinformed consent. Operating, in the absence of such informed consent was a breach of duty. The defenders were liable for the consequences of that breach of duty.

The defenders formulated the question slightly differently, arguing that the duty was breached only where the action fell below the Hunter v Hanley standard of accepted medical practice. However, even if the lower standard of ‘reasonable care’ was applied, the evidence established that Mr Kamel had taken reasonable care.

Lord Glennie considered that, taking into account the time lapse since the events (some 9 years), the witnesses could all be considered to be doing their best to tell the truth and that the case could not be decided simply on the basis of one side being inherently more credible than the other (at [127]).

Lord Glennie went on to distinguish what the case was not about. It was not about a misdiagnosis of a tumour, when there turned out to be none. It was not about whether the pursuer should have had no treatment, because the weight of medical opinion was that he should. It was not about whether the operation or post-operative case was negligent. Nor was it about whether specific GMC guidance had been followed to the letter.

Turning to what the case was about, the pursuer’s meeting with Mr Kemal on 16 September 2010 was crucial. A note of that meeting, said to be produced shortly afterwards, and a letter from Mr Kemal to another member of the MDT, Prof Bevan, dated the same day were produced. The content of the note is summarised at [139]. In short, it detailed a reasonably full discussion of the risks and options available. The pursuer’s evidence (see [140]) about the meeting contradicted much of this note. The pursuer’s account was supported by his wife’s recollection. Ultimately, Lord Glennie considered that Mr Kemal’s note was a fair and accurate summary. To the extent that it differed from the pursuer’s recollection, the Court preferred the account in the note.

There was a further question of consent on the day of the operation. A note had been produced, suggesting that Mr Kemal had obtained pre-operative consent that day. There was a weight of evidence against such a conclusion – instead a Mr Bodkin had. Lord Glennie noted at [147] that the true provenance and purpose of this note remains shrouded in mystery. However, the Court was satisfied that, on the evidence provided, Mr Bodkin had likely followed a reasonable pre-operative consent procedure.

Lord Glennie was ultimately satisfied that the actions of Messrs Kemal and Bodkin were each sufficient to comply with the Montgomery duty of care (at [149]). Any subsidiary criticisms advanced by the pursuer were not held to be well founded. Accordingly, decree of absolvitor was granted in favour of the defenders.

Analysis

Although Lord Glennie described the issue in the post-Montgomery case as being relatively straightforward, it’s clear from the 82 pages and 154 paragraphs that proving a case of this sort remains a major undertaking.

As in so many cases, however, ultimately the case boiled down to a dispute over the reliability of documentary evidence when placed against witnesses’ recollections many years down the line. Perhaps unsurprisingly, Lord Glennie ultimately preferred the documentary evidence – in particular with respect to the crucial 16 September 2010 meeting. That said, there was a major discrepancy with respect to the mystery of the pre-operative note. However, in the absence of any suggestion that the note was fabricated, and given that Mr Kemal had no recollection of the note, there was only  a limited amount that could be taken from it.

The takeaway for medical professionals, as ever, is the value of proper note-taking and record keeping. Given the length of time that tends to elapse between an alleged incident of negligence and a proof diet, a detailed contemporaneous note is likely to be accepted as the most reliable source of evidence, even in the face of the most emphatic witness recollection.

Representation

The patient was represented by Lauren Sutherland QC. The defenders were represented by James McConnell.

The Opinion of Lord Glennie can be found here.

 

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