Nadia Whittaker reports on a case where the failure to extract a tooth invalidated consent
The facts
Miss Robinson, a longstanding dental phobic, was referred to hospital for teeth extraction under general anaesthetic. She was seen at the defendant’s Trust by Mr Bajwa, a trainee in oral and maxillofacial surgery. Mr Bajwa obtained her consent to extract three teeth (one of them in the left upper quadrant).
Miss Robinson signed a consent form before the general anaesthetic was administered. When Mr Bajwa looked into her mouth in theatre, he realised that he must have been looking at an old x-ray when taking Miss Robinson’s consent. The x-ray showed two molar teeth in the upper left quadrant; whereas he was staring at just one. Overcome by doubts as to whether the only tooth remaining in the upper left quadrant should be extracted, Mr Bajwa became concerned about ‘the possibility of “wrong site surgery”’ and made the decision in ‘the patient’s best interests’ to leave that tooth in situ.
When Miss Robinson woke up, she was taken aback that the upper tooth that she expected to be extracted was still there. She asked Mr Bajwa about it, and he informed her that he had been looking at the wrong x-ray when he took her consent, and that there was nothing further than he could do for her.
Miss Robinson was distressed. Her dental phobia escalated, and she could not face any further dental treatment despite experiencing pain in that tooth. This was the genesis of her personal injury claim. She claimed damages for the pain from the tooth that had not been removed, and the increase in her anxiety and dental phobia.
The trial
The claim came for trial before Recorder Hudson. The allegations advanced in the particulars of claim focused on a failure to review the records, to take proper account of the consent form Miss Robinson signed, and failure to remove the upper left molar. The allegation of a failure to obtain her informed consent was only advanced in the reply.
Despite the low value of the claim, each party had their own expert evidence. The two experts agreed in a joint statement: ‘There is no evidence in the clinical records that an examination was, or, was not, carried out by the treating clinicians prior to the consent being completed. Both experts agree that a reasonable body of practitioners would carry out and record the results of an examination prior to the consent being completed.’
Mr Bajwa was cross-examined on to how he could have missed that there were two molars in the upper left quadrant on the x-ray, and only one in Miss Robinson’s mouth. He accepted that he made a mistake in his examination before taking Miss Robinson’s consent.
One would have expected this evidence to have set the scene for the allegation of a failure to take Miss Robinson’s informed consent. However, in discussions with the Recorder, the claimant’s representatives seemed to focus the issue on whether it amounted to a breach of duty not to remove the tooth when Miss Robinson was under general anaesthetic. The issue of informed consent seemed to have been forgotten.
This led to the Recorder forming a view that, irrespective of Mr Bajwa’s admitted mistakes pre-anaesthesia, Miss Robinson’s case was doomed to failure. The Recorder expressed her views in questions to the claimant’s expert Mr Mercier, and subsequent discussion with counsel, following which the case was discontinued mid-trial.
The Recorder’s blinkered views of the significance of Mr Bajwa’s admitted errors became apparent at the hearing of the application against Mr Mercier. The Recorder formed a firm opinion that a proper examination while Miss Robinson was awake would still have led Mr Bajwa to decide that the tooth was restorable. The Recorder felt that he could not be ‘forced’ to extract a restorable tooth. She was therefore not prepared to contemplate the possibility that Miss Robinson was worse off as a result.
The appeal
The primary issue was the liability for costs imposed on Mr Mercier, in respect of which Sweeting J allowed the appeal. This outcome was determined by his careful analysis of the issues in the case to which Mr Mercier’s evidence was relevant.
Sweeting J considered the requirements of the doctrine of the law of informed consent in Montgomery v Lanarkshire Health Board [2015] UKSC 11, and held: By the time Mr Bajwa was in surgery, the information that he had available to him was limited and could not include any discussion with Miss Robinson about whether or not she was in pain from the tooth or why the x-ray provided to him was inaccurate. It might not have proved possible to resolve matters on the day, but Miss Robinson’s operation had already been postponed on the previous day, and she would have been in a position to choose whether to go ahead with the removal of the lower teeth only or wait for a further operation in which, if necessary, the upper molar could be removed at the same time.’
Conclusion
Typical cases on informed consent concern complications of procedures to which the patients agreed without being informed of that risk. Miss Robinson’s case was unusual. There were no complications. This led the Recorder to wrongly think that Miss Robinson was better off because ‘the possibility of “wrong site surgery”’ was averted by Mr Bajwa taking the decision in her ‘best interests’.
As the judgment of Sweeting J demonstrates, this analysis was wrong because it strikes at the heart of the decision in Montgomery, where it was held that the doctrine of informed consent can be understood not just ‘as a duty of care to avoid exposing a person to a risk of injury which she would otherwise have avoided’, but as ‘the counterpart of the patient’s entitlement to decide whether or not to incur that risk’.
The Supreme Court was firmly of the view that ‘An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken’.
The law relevant to Miss Robinson’s case was not applied at trial because of confusion as to whether breach of duty occurred before or after she was asleep. In the debate about whether the tooth was restorable, the significance of what mattered to Miss Robinson was overlooked, resulting in a pre-Montgomery paternalistic approach to her concerns. This led to Miss Robinson’s claim being discontinued and exposed her expert to a liability for costs.
On appeal the correct legal approach was restored, albeit by then it was too late for Miss Robinson to secure any damages.
Nadia Whittaker acted for the expert Mr Mercier in Robinson v Liverpool University Hospitals NHS Trust and Mercier.
