Failure to obtain informed consent
|Additional Orders:||Doctor granted interim name
Order giving reasons for name suppression: 04118dfindingnamesupreasons
Doctor granted permanent name suppression: 04118dfindingssup
|Appeal:||The Doctor appealed the substantive Decision to the District Court. The Court allowed the appeal to the extent that it found the Doctor guilty of conduct unbecoming and that conduct reflects adversely on the practitioner's fitness to practise medicine instead of professional misconduct (Dr J v Director of Proceedings, (District Court, Auckland, CIV 04/004/1682, 6 February 2005, Doogue J))|
The Director of Proceedings charged that the Doctor was guilty of professional misconduct or in the alternative conduct unbecoming a medical practitioner which reflected adversely on the doctor’s fitness to practise. The particulars of the charge were as follows:
Before performing an abdominoplasty procedure the Doctor failed to obtain the patient’s informed consent in that she failed to inform the patient adequately and/or in appropriate circumstances of the extent and/or costs of the proposed surgery; and/or
The Doctor failed to adequately advise the anaesthetist and/or other theatre staff of the proposed procedure prior to the commencement of the anaesthesia;
On 18 October 2000 the patient first consulted the Doctor. At a consultation on 26 October, after discussing the options, arrangements were made for the patient to have a total hysterectomy on 18 December 2000. During the consultation on 26 October 2000 the patient asked if liposuction could be performed on her lower abdomen at the same time as the hysterectomy.
There were differences of view between the Doctor and the patient about what was said about the additional procedure. The patient was certain that the term “abdominoplasty” was not used during the consultation and that she was not told the procedure involved the relocation of her umbilicus, or about the Doctor’s expertise in performing the procedure. The Doctor was certain she fully described the procedure, and that she referred to it as being an abdominoplasty. In particular, the Doctor believed she explained the procedure involved relocation of the umbilicus, and that the performance of an abdominoplasty would make the patient’s convalescence less comfortable.
It was agreed by both parties that when the costs of the additional procedure were explained the patient stated she could not afford the additional operation. Accordingly, a second additional procedure was discussed. The procedure was described as either a “nip and tuck” or a “tummy tuck”. The Doctor said the procedure would take 10 to 15 minutes and would cost something in the vicinity of $200 to $300. The patient agreed to this procedure.
The patient signed a standard consent form on 26 October. The document was filled in both by the patient and the Doctor. That consent form referred to a hysterectomy only. No reference was made to the minor additional cosmetic procedure as the form was to be submitted to the patient’s health insurer and neither the Doctor nor the patient thought it necessary to concern the insurer about the additional procedure which the patient was going to pay for herself.
On 15 December 2000 the Doctor’s secretary telephoned the patient to
confirm the surgery scheduled for 18 December. The patient mentioned the
“tummy tuck” procedure and was told by the secretary to remind the Doctor
of this on the morning of 18 December.
On the morning of the operation the anaesthetist saw the patient at 7.15am. The anaesthetist charted pre medication in the form of midazolam, which is a relaxant that can have a variety of effects upon patients. In some patients they can fall asleep from the effects of midazolam, others can appear lucid and awake. Midazolam frequently has an amnesic effect in that patients often cannot remember anything after taking midazolam. When asked about the effects of midazolam on a patient’s ability to make decisions the anaesthetist said:
“Patients appear to make rational decisions but may well make more frivolous statements, may become less inhibited, and might perhaps say things they don’t really mean … Patients that have … midazolam …are advised after taking it not to make important decisions and not to sign important documents or drive or drink.”
The surgery was scheduled to commence at 8am on 18 December 2004. Midazolam was administered to the patient prior to that time. When the Doctor arrived at the hospital she did not know the patient had been administered midazolam about an hour beforehand. The Doctor saw the patient in the corridor outside the theatre at about 8.50 am. The Doctor and the patient had a conversation.
The patient had no recollection of the discussion she had with the Doctor in the corridor outside the theatre. Evidence was given by a member of the theatre staff that the patient appeared lucid. The Doctor told the Tribunal that during the course of the discussions she had with the patient she was told to “cut away as much as she could” and that she “didn’t care how low her navel was”. The Doctor’s evidence was that she explained to the patient that the patient’s request involved a full abdominoplasty (including relocation of the umbilicus). The issue of cost was again raised. The Doctor offered to perform the operation for nothing provided the patient paid for the additional theatre time, and the additional costs of the anaesthetist. The Doctor believed the patient directed the Doctor undertake a full abdominoplasty on the condition that the patient would only be liable to pay for the additional costs of theatre time and the anaesthetist.
A theatre nurse said that when she was scrubbing the Doctor told her that a full abdominoplasty would be performed in addition to the hysterectomy. When the nurse questioned the Doctor, the Doctor said she had spoken to the patient and had obtained her verbal consent.
It was difficult to ascertain precisely when all theatre staff appreciated that a full abdominoplasty was to be carried out. When a different nurse returned to the theatre she added the words “abdominoplasty” to the patient’s consent form. The patient was still awake at the time and indicated she was content with the change. At that stage the anaesthetist assumed the reference to an abdominoplasty was to a minor cosmetic procedure. The anaesthetist said she only appreciated that a full abdominoplasty was to be undertaken after the patient had been anaesthetised.
None of the theatre staff raised concerns about the appropriateness of
the patient’s apparent consent to undergoing an abdominoplasty. They all
assumed the procedure had been discussed in the Doctor’s rooms and that
the Doctor would not undertake such an extensive operation without
obtaining proper consent. None of the theatre staff told the Doctor that
the patient had been administered midazolam.
On 21 December 2000 the patient complained to hospital management about the abdominoplasty having been performed without her informed consent. Soon after that the Doctor became aware that she had obtained the patient’s consent to the abdominoplasty after her patient had been administered midazolam.
The patient was very concerned that she had been subjected to an abdominoplasty in circumstances where she had not given informed consent. The patient was distressed that her ability to determine what medical procedure should be carried out on her had been by-passed.
It was not possible for the Tribunal to determine what, if any, additional costs the patient incurred as a result of the abdominoplasty. Ultimately the Tribunal approached its task by putting to one side questions about what, if any, additional costs were incurred by the patient. Although there was reference to the costs of the abdominoplasty in the first particular of the charge the Tribunal assessed the Doctor’s culpability on the basis that the abdominoplasty was performed in circumstances where the patient had not validly consented to the procedure.
The Tribunal found the Doctor guilty of professional misconduct.
When considering the first particular the Tribunal was unanimously of the view that the Director of Proceedings established the Doctor failed to adhere to the standards expected when she failed to obtain the patient’s informed consent to the abdominoplasty performed on 18 December 2000.
The consent which the patient purportedly gave to the Doctor for the abdominoplasty was not valid. The patient was unable to consent because of the effects of midazolam which had been administered approximately one hour earlier. Furthermore, the Tribunal considered it was not appropriate for the Doctor to attempt to get her patient’s consent for such a significant procedure in the corridor of the theatre suite. The patient had no time to consider and reflect on the information given to her by the Doctor in the short space of time before she was taken into the operating theatre.
The Tribunal was unanimous in its view that the Doctor’s actions when endeavouring to obtain the patient’s informed consent to the abdominoplasty breached the standards. However, the Tribunal was not unanimous in its conclusion that a disciplinary finding was justified.
The majority of the Tribunal believed a disciplinary finding was
justified in order to maintain professional standards. The majority of the
Tribunal believed that it was not appropriate for the doctor to endeavour
to obtain her patient’s informed consent to a significant surgical
procedure in the circumstances of this case. In particular, even though
the doctor was unaware midazolam had been administered to her patient, she
had every opportunity to inquire both of her patient and the anaesthetist
to determine if her patient had received midazolam. Midazolam is a common
pre-medication. In any event, in the view of the majority of the Tribunal,
the doctor’s errors were compounded to an unacceptable level when she
endeavoured to obtain her patient’s informed consent to a significant
surgical operation in the corridor of the theatre suite.
The Tribunal was unanimous in its finding in relation to the second particular of the charge. All members of the Tribunal were satisfied the Doctor failed to adequately advise the anaesthetist and other members of the theatre staff of her intention to perform an abdominoplasty on the patient.
The Doctor told the Tribunal she announced her intentions to the theatre team in the theatre, before the patient was anaesthetised. Other persons present had different recollections of how they learnt about the abdominoplasty. The Tribunal considered even assuming the Doctor’s recollection was correct, it was not appropriate for a surgeon to simply announce that a significant and time consuming surgical procedure will be performed.
Whilst the Tribunal was satisfied in relation to the second particular the Doctor failed to adhere to the standards expected, the Tribunal was also unanimously of the view that the shortcomings established, did not justify a disciplinary finding against the Doctor. The Tribunal believed the Doctor had learnt a valuable lesson and that there was no need to impose a disciplinary finding against the Doctor in relation to the second particular of the charge.
The Tribunal ordered the Doctor pay $12,450.72 costs in relation to the hearing by the Tribunal (40%) and $6,817.11 costs to the Director of Proceedings (30%).
In assessing penalty the Tribunal took into account the following factors:
The Doctor appealed the substantive Decision to the District Court. The Court considered the Doctor had departed from acceptable standards. It agreed with the Tribunal that the Doctor's conduct should be marked by an adverse disciplinary finding, but the failure lay at the lower end of the spectrum of culpability.
The Court did not agree with the Tribunal that the only difference between professional misconduct and conduct unbecoming was that professional misconduct applied to the occupational obligations of the Doctor where as conduct unbecoming related to behaviour that fell outside of professional obligations. The Court considered that the correct distinction between the two categories of offence were that they related to different levels of gravity of offending. The Court was satisfied that given the conduct was at the lower end of the spectrum of culpability it was appropriate to substitute a finding of conduct unbecoming and that conduct reflects adversely on the practitioner's fitness to practise medicine. (Dr J v Director of Proceedings, (District Court, Auckland, CIV 04/004/1682, 6 February 2005, Doogue J)).