Managing headache. The reverse of consent.
An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing staff, medical staff and other professions rely on when caring for patients.
We are often presented with models of exemplary practice to emulate, but it can also be instructive to reflect on the reverse…
Ms Norney ‘N’ was a 34-year-old finance supervisor who presented to a consultant neurologist, Dr P. She complained of headaches, dizziness, and nausea, together with pins and needles in her right arm, and sensitivity to light and sound. The court was told that a brain MRI without contrast excluded ‘anatomical abnormality and demyelinating disease.’ After taking a history and examining N, Dr P diagnosed cervicogenic headache, in combination with migraine. He performed an occipital nerve block which gave her immediate relief, supporting that diagnosis.
Over the ensuing 6 months Dr P repeated the blocks, but the subsequent relief diminished, and N sought a private opinion with Dr W on 20th July 2016. He took a history, now of neck pain and headaches. N explained that if she lay down in a darkened room and fell asleep the symptoms improved; but there was no immediate effect on lying down. Dr W did not perform a neurological examination; but he told N that she had a ‘leak in her spine (referring to leakage of cerebrospinal fluid) causing spontaneous intracranial hypotension (SIH), and that a lumbar epidural blood patch would ‘cure the headaches.’
There was no discussion about the prospects of success, associated risks, or of the possibility that the working diagnosis of SIH was uncertain. No alternative management, such as a preliminary search for a different diagnosis using brain and spine MRI with contrast was proposed. The court was told that there was a 50% chance of the blood patch being unsuccessful (even if the underlying diagnosis had proved to be correct). During the trial, the court allowed Dr W to change his case; now asserting that his diagnosis of SIH was provisional rather than definitive; and that the blood patch procedure was a diagnostic test.
The court heard that the risks associated with the performance of an epidural blood patch included immediate low back and/or radicular pain, together with spinal cord dysfunction. The latter could result from inadvertent dural puncture and intradural haematoma. Rebound hypertension was also a foreseeable complication.
On 21st November 2016, Dr W, notwithstanding the lack of discussion or disclosure or consent process at either the July or November appointments, performed the procedure. N experienced ‘…severe pain in her right leg during the procedure…felt it was going to burst.’ She asked Dr W to stop ‘…but he continued and said “just a bit more.’ The leg pain then persisted for 9 years; the court was told that this was likely to have been caused by damage to the lumbar nerve roots. The judge accepted that N’s headaches became more severe.
The court found as a fact that the patch procedure was not performed as a diagnostic test; Dr W had made a diagnosis of SIH. The risks of failure of the procedure, post operative back and radicular pain, and the dangers of dural puncture and subdural bleeding should all have been disclosed prior to the procedure. There was also a failure to disclose alternative management, including steps to further investigate N’s symptoms with contrast MRI which might have ultimately avoided blood patch treatment in this clinical context.
The judge reminded himself of words in Montgomery [2015] UKSC 11, referring to (part of) the substance of disclosure prior to seeking consent; The doctor ...(must) take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments’. Also of Thefaut [2017] EWHC 497 (QB); ‘ It is routine for a surgeon immediately prior to surgery to see the patient…but this is neither the time nor the place… for the first time to explain… the relevant risks and benefits’. Certainly, the judge in Norney found that ‘…Quite simply, there was no attempt whatsoever to take proper consent….’
Certainly not a case to emulate, but neither is it one to forget.
Norney v Watt & Anor [2024] NIKB 78
Mr Robert Wheeler
Department of clinical law
September 2025