Judge: Queen’s Bench Division (HHJ Collender QC)
Citation:  EWHC 1339 (QB)
Mrs Connolly (‘Mrs C’) brought a clinical negligence action against the Defendant NHS Trust for damages for personal injuries and consequential loss following a diagnostic procedure, an angiogram. The Claimant asserted that she had consented to the procedure on the basis that it was a low risk investigative procedure. In fact complications had arisen resulting in the necessity of an angioplasty. The Claimant argued that she had withdrawn consent during the course of the procedure and that in the circumstances it was negligent of the Defendant’s employees to continue with it.
Mrs C. was 52 years of age at the time of the procedure and had for a long time suffered from a range of medical conditions and had for long been anxious about her health. In 2009, she complained to her GP of symptoms that were consistent with, or suggestive of, angina pectoris. An echocardiogram was performed which was normal. It was suggested that the claimant undergo an angiogram. The claimant was provided with a consent form preparatory to carrying out the procedure. She was also sent an information sheet explaining the procedure in detail, and describing risks involved with the procedure. Mrs C. duly signed the consent form.
A local anaesthetic was given to Mrs C. in her right arm to permit access for a catheter via her radial artery. Mrs C. suffered from a spasm and pain, the catheter was withdrawn and another attempt was made but was unsuccessful. Another attempt was then made via the femoral artery. During this period analgesic was given to Mrs C. At an early stage during the course of the procedure, a condition was detected in Mrs C. (an occluded left descending artery LAD), which is a serious and life threatening condition. As a result of this the procedure had to be turned into an angioplasty and access via the femoral route was undertaken. In the course of the procedure, the claimant complained of pain in her right arm and of severe pain across her back, chest and jaw and it was noticed that there had been a dissection of the left main stem artery. Mrs C was transferred to King’s College Hospital where two further stents were inserted into her arterial system. It was unclear whether the dissection had been caused at the time of the angiogram procedure via the radial route or only after the femoral route was begun.
Mrs C. brought a case against the staff at the defendant hospital for damages for personal injuries and consequential loss arising from the performance of the angiogram. The claimant asserted that she had not provided valid consent for the angiogram as she was provided with misleading information before the procedure started. Secondly, that she withdrew such consent as she had given before access via the femoral route was undertaken and it was only after this time that she sustained a dissection of the LAD. The defendant disputed the case and asserted, amongst other things, that at the material time, the Mrs C did not have capacity to withdraw consent. Further that an event that threatened her life occurred before withdrawal of her consent such that the staff f the hospital were entitled to ignore any suggestion from her that she wished them to halt the procedure.
Dismissing the claim, the judge found that claimant’s consent had not been vitiated by inadequate or misleading information. He further found that the dissection and excruciating pain suffered by the claimant were suffered by her before access to her arterial system was gained via the femoral route and that the Claimant had failed to satisfy the court than she had the capacity to withdraw consent during the course of the procedure or that she had in fact done so.
This case is another in a line of cases on consent to treatment and is well worth reading for its summary of the case law to date. In this case the judge considers the situation when the patient has consented to one procedure, but during the course of the procedure it becomes necessary to carry out a further procedure for which the patient has not consented or in so far as she has consented for which she argues she has withdrawn her consent.
The judge highlights the relevant issues for his consideration on withdrawal of consent at paragraph 47
“[…] had the patient capacity at the material time to withdraw consent and the extent to which, if at all a medical emergency confronting a medical practitioner may entitle them to continue with a procedure in the face of objection from a patient?”
The judge found that because analgesic drugs and sedation had been administered to her she did not have capacity to withdraw her consent to treatment during the procedure. He also found that once the emergency arose it was clearly reasonable for the clinician to proceed with the procedure because “the consequences of the hospital staff halting the procedure would have been the death of Mrs C” [paragraph 126].
NHS guidance on the withdrawal of consent is contained in the Reference Guide to Consent for Examination or Treatment (2009) published by the Department of Health, at paragraph 45:
‘A person with capacity is entitled to withdraw consent at any time, including during the performance of a procedure. Where a person does object during treatment, it is good practice for the practitioner, if at all possible, to stop the procedure, establish the person’s concerns and explain the consequences of not completing the procedure. At times, an apparent objection may in fact be a cry of pain rather than withdrawal of consent, and appropriate reassurance may enable the practitioner to continue with the person’s consent. If stopping the procedure at that point would genuinely put the life of the person at risk, the practitioner may be entitled to continue until that risk no longer applies” (emphasis added)
It is therefore clear that where an emergency arises in a clinical setting a doctor may be entitled to continue to treat the patient despite an apparent withdrawal of consent if the person’s life is at risk.