This case involved the consent process for gynaecological surgery. The claimant alleged she had been given insufficient options, as a result of which she chose total laparoscopic hysterectomy with bilateral removal of her ovaries, whereas had she been given greater choice she would not have chosen such an extensive procedure.
JM was in her mid-forties. She had a history of heavy menstrual bleeding over a number of years, which she found very debilitating. In May 2016 she attended a consultation with a consultant obstetrician and gynaecologist at the trust, Mr. T. He accepted he did not offer UAE (uterine artery embolisation), but maintained he did discuss hysterectomy without removal of the ovaries. The judge concluded that both witnesses were honest and were doing their best to assist the court.
Having assessed the evidence at length, including views of experts instructed by both parties, Judge Walsh held that UAE should have been offered, not least having regard to NICE guidelines published in 2007. However, had that occurred the consultant would have been obligated to mention the fact that UAE had a 32% re- intervention rate over five years, whereas the equivalent figure for hysterectomy was just 4%. Further, UAE would not have cured heavy menstrual bleeding, the very problem JM experienced. Therefore, on the balance of probabilities, JM would not have chosen that option even if it had been offered.
Turning to hysterectomy without removal of the ovaries, the same 2007 guidelines recommended that healthy ovaries should not be taken out. The judge accepted JM’s evidence that the consultant had glossed over this option. Mr. T, in his opinion, “had a strong fixed view that the ovaries should be removed” as the symptoms of menopause could be managed by Hormone Replacement Therapy. The risk of cancer were they to be retained, mentioned by the consultant as a reason for removal, was small.
Accordingly, Judge Walsh concluded that the consultant had breached his duty of care to JM and that, if appropriate options had been discussed, JM would have chosen hysterectomy without removal of her ovaries. He therefore awarded her agreed damages of £11,000, representing premature onset of menopause and psychiatric trauma.
This trial occurred six years after the consultation, so it was unsurprising that the consultant was unable to recall it. He therefore had to rely upon his notes and his usual practice. Judge Walsh reached a clear conclusion that insufficient options had been given. Breaches of NICE guidelines are not necessarily negligent, because they are guidelines and not instructions. However, the court took the view that the patient’s right to have appropriate options explained to her was not fully met and that the consultant was dismissive of procedures he did not favour. This ruling therefore clearly demonstrates that patients must be given appropriate explanations and choices, to enable them to reach informed conclusions as to their treatment. Any clinician who fails to do so may potentially be found negligent if a patient suffers harm as a consequence.