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Clinical law
Friday 10 November 2023

The ear, the tube, and the testis. Operating without consent.

No clinician in this country can provide consent on behalf of their adult patients.

Accordingly, treatment of the incapacitated adult, unable to provide his or her consent, is an anxious endeavour. When there is time to review the incapacitated patient's formerly expressed wishes and beliefs, and seek information from friends and relatives, it is usually possible in a multidisciplinary setting to make a decision where her best interests lie and conclude whether the proposed operation or treatment aligns with those interests.

Amongst other things, a consent form 4 will be filled in to document this decision, and the grounds upon which it was made. But that form is misleadingly ill-named, since no 'consent' is engaged in this transaction, because the patient is incapable of providing consent.

In emergency circumstances there may be no time for gathering information. Surgery or another intervention for an incapacitated adult may be immediately required. Where is the authority for such a step, in the absence of consent or a formal 'best interests' process?

Three cases of anaesthetised patients, incapable of providing consent for unexpected pathology, reveal the modern law.

Mrs Mohr provided consent for surgery, in 1905, to her right ear. Examination in clinic revealed a perforation of the ear drum, and a large polyp in the middle ear, although the view was impaired by foreign bodies. Speculating that the polyp was indicative of diseased ossicles, the surgeon planned to remove the polyp and affected bones. Under anaesthesia it became clear that the left ear was in a more serious condition than the right, so the surgeon performed ossiculectomy on the left, leaving the right side untouched. The patient complained that the operation had greatly impaired her hearing, and courts found that the surgeon’s actions were unacceptable, without specific consent to operate on the left ear. The court found no evidence that any emergency existed which required immediate intra operative action. The surgery could have been deferred, the patient woken up, and a new plan discussed for a future procedure. Damages were awarded to the patient.

During Mrs Murray’s caesarean section which proved very difficult due to unexpected uterine fibroid disease, an obstetrician regarded a further pregnancy as very risky (because of the fibroids). Accordingly, he performed bilateral fallopian tube ligation during caesarean, sterilising the patient. She felt that this choice should not have been taken without her consent, and the court agreed. It could not be said that the ligation was necessary because her life was in jeopardy, or to avoid serious irremediable harm. It would have been possible to plan a separate operation to sterilise her at a future date, if that is what she chose.

During the repair of Mr Marshall’s left inguinal hernia under general anaesthesia a surgeon encountered in the inguinal canal a bulky and ‘grossly diseased’ testis, an entirely unexpected finding. Without consent, this was removed, but Mr Marshall was not grateful. He was incensed to lose his testis in this way. He asserted that he had been assaulted. The court held that the unplanned orchidectomy was necessary; if the (ostensibly malignant) testis had not been removed, this would have caused serious harm or death. Immediate orchidectomy was held to be necessary and reasonable, preserving life and preventing serious harm in a man under anaesthesia, thus unavailable for consent.

These three judgements over the last 120 years form the foundation for the common law defence of necessity. Where no consent is available, and there is no opportunity to form multidisciplinary view of where the 'best interests' of the patient lie, doctors must be guided by the doctrine of necessity. This is equally applicable to Emergency Department management. If treatment is immediately required to save the life of the incapacitated adult, or to prevent serious irremediable harm, then that treatment may and must be given, despite the absence of consent. But if you encounter unexpected pathology which can safely be left to another day, (and another anaesthetic), defer action until the patient is aware of the new pathology, and can make that choice themselves . Until then, leave well alone.

Robert Wheeler
Department of clinical law