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Doctors cannot rely on ‘invariable practice’ when defending their approach to consent

A recent case[1] contains some salutary warnings for all doctors whose actions come under scrutiny. The judge had to decide which version of the consenting discussion he preferred – the patient’s or the surgeon’s.

The risk was one of paralysis, which tragically did occur. The surgeon referred in his written witness statement to various risks of the procedure including DVT and PE. When he gave evidence in court about the risks he did not include DVT or PE despite saying that it was his ‘invariable practice’ to mention them.

The judge accepted that he had to make proper allowances for the fact that the surgeon was in the witness box (with all the stress and lack of familiarity that involved) and not talking to a patient when he omitted these risks. But the judge concluded that the surgeon’s belief about what he would invariably have said was not reliable and his belief about his invariable practice and what he in fact said sometimes differed. Therefore the patient’s evidence that the risk of paralysis was not mentioned was preferred (on the balance of probabilities) to the surgeon’s that it was.

The judge found another six reasons for rejecting the surgeon’s recollection as to the warning being given, at the heart of which was inconsistency between different documents made or accounts given by the surgeon, and the absence of a clear contemporaneous record of the key points of the discussion between surgeon and patient.

The moral for all doctors should be clear.

Follow the guidance given in the GMC’s Good Medical Practice (paras 19 and 21). Record the ‘usual’ or the ‘invariable practice’. Devise a shorthand, acronym, or printed list and mark them off as they are discussed.

Support this with a letter, again listing the (same) matters discussed. Suitably practised this need not take up much time but it will provide a proper and, in most cases, convincing record of what took place, and will ensure that all important matters were in fact mentioned.

Never put yourself in the position of having to say ‘my usual or normal practice is …’ or ‘it is my invariable practice to …’.

Instead have a reliable, clear, comprehensible, legible and contemporaneous record of what took place.

The full learning points from the case of Hassell – and much more advice on making notes and records can be found in the author’s recent book Clinical Practice and the Law – a legal primer for clinicians.

Giles Eyre is a recently retired barrister and an Associate Member of Chambers at 9 Gough Square, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer for clinicians (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.uk.com).

[1]  Hassell v Hillingdon Hospitals NHS Foundation Trust [2018] EWHC 164

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