Consent to surgery: who will be my surgeon? Consent to surgery: who will be my surgeon?

Consent to surgery: who will be my surgeon?

9 November 2017 | Health Sector

Often a patient is not expressly told who their surgeon will be and is left to assume it is the practitioner who obtained their consent. However, a different practitioner or a registrar under supervision may actually perform the operation. These situations raise issues about whether the treatment provided is within the scope of a patient’s consent.

Who will be my surgeon?

Take a case where the patient meets with, and gives consent to, consultant Dr A. The identity of the surgeon who will perform the procedure is not specifically discussed, however, the patient assumes Dr A will perform the surgery. The patient signs a consent form which includes this term - “I have been told that the procedure/treatment may be performed by another doctor”. In reality Dr B, a trainee surgeon, performs the procedure.  

Is there valid and informed consent?

This was the situation in a recent New South Wales Supreme Court case. The patient gave consent for an incisional hernia repair to a consultant surgeon, however, a registrar (with assistance and supervision from the consultant) performed the surgery. She suffered a severe post surgery infection. The patient claimed that she did not consent to the registrar’s involvement and that if she had known the registrar was going to perform the surgery, she would have sought the most skilled and experienced surgeon available.   

Consent is to the nature and character of the act

Consent must be given freely and voluntarily, by someone with capacity, and must cover the act to be performed.

The Court referred to several passages from the High Court generally on consent. The first confirmed that:

“The identity of the man and the character of the physical act that is done or proposed seem now clearly to be regarded as forming part of the nature and character of act to which … consent is directed”.[1]

However, the High Court has also said the necessary consent to medical treatment is satisfied “by the patient being advised in broad terms of the nature of the procedure”.[2]

The decision

The Court relied on the fact that the registrar was appropriately qualified to perform the surgery and held that their involvement did not change the “nature and the character of the act” – so the patient’s consent was informed and valid.  

The decision might well be different if the patient had, for instance, mentioned that she only wanted Dr A to perform the operation. This would arguably narrow the nature and character of the procedure consented to.

Other cases

The New Zealand Canterbury District Health Board considered a similar issue in 2012[3] regarding an elective posterior fossa decompression procedure. Both a consultant neurosurgeon and a registrar neurosurgeon were involved in the consent process but the patient was not told that the registrar would perform the surgery. The patient sadly died 24 hours after surgery. 

The hospital argued that as a training hospital most patients would expect junior doctors and training specialists to be involved in patient treatment. The Commissioner commented that a patient’s failure to ask who will perform the surgery does not imply that this is not information that a reasonable patient would expect to receive.  Given the serious nature of the surgery and the patient’s anxiety about proceeding with the surgery, the prudent course would have been to discuss the role of the trainee neurosurgeon and the extent of the consultant supervision. 

A similar issue was considered in a recent UK decision.[4] The patient was scheduled for spinal surgery and wanted to bring her surgery date forward.  Dr C, who initially reviewed her, was on leave so on the advice of her GP, the patient waited for her surgery until Dr C returned. The patient discussed the procedure and its risks with a Dr S and signed a consent form. Her form stated “I understand that you cannot give me a guarantee that a particular person will perform the procedure.  The person will, however, have appropriate experience.” 

The Court accepted that the claimant was led to understand that her operation was still scheduled to be performed by Dr C. Dr S in fact performed the surgery and the patient sustained serious complications. She claimed that had she been informed that Dr C was not going to perform the surgery in a timely manner, she would never had consented to the operation proceeding. 

The Court held that it was too late to tell the patient that Dr C would not perform her operation as she was about to enter the theatre. Given the late hour, the patient was not able to make an informed choice and, thus, had not given informed consent to surgery performed by Dr S. In this case the Court considered that the identity of the surgeon was relevant information that this patient ought to have been provided with to give informed consent.

MBA Guidelines

The following provisions of the Medical Board of Australia’s Guidelines for Registered Medical Practitioners who perform Cosmetic Medical and Surgical Procedures provide some assistance:

2.1 The patient’s first consultation should be with the medical practitioner who will perform the procedure or another registered health practitioner who works with the medical practitioner who will perform the procedure.  It is not appropriate for the first consultation to be with someone who is not a registered health practitioner – for example a patient advisor or an agent.

2.2 If the first consultation is with another registered health practitioner, the patient should have a consultation with a medical practitioner who will perform the procedure, before scheduling the procedure.

4.1 The medical practitioner who will perform the procedure must provide the patient with enough information for them to make an informed decision about whether to have the procedure… the information must include… the medical practitioner’s qualifications and experience.

4.2 Informed consent must be obtained by a medical practitioner who will perform the procedure. 

Take home points

The New Zealand and United Kingdom decisions are not binding in Australia, however, they are indicative of issues which may arise.

The decisions suggest that in many circumstances a reasonable patient would expect to be told the identity of the surgeon – or the fact that this is not known and cannot be guaranteed – in order to give informed consent. The reasonable patient’s expectations may change depending on many factors including whether:

  • The surgery is elective or an emergency procedure.
  • The patient is anxious about the surgery.
  • The significance of the surgery risks.
  • The hospital is private, public or tertiary.

Ideally, the surgeon/s should meet with the patient beforehand to discuss the procedure and obtain consent. If this is not practicable, the surgeon/s should at least meet the patient before the procedure and a discussion (as opposed to merely a signature on the consent form) should be had, to explain that there is no one assigned surgeon. These discussions should be clearly and contemporaneously documented.

[1] Papadimitropoulus v The Queen (1975) 98 CLR 249.
[2] Rogers v Whittaker (1992) 175 CRL 479 at 490.
[3] Case 09HDC01565.
[4] Kathleen Jones v Royal Devlon & Exeter NHS Foundation Trust Case No 3YS07024.

Emma Harman

Emma Harman

Senior Associate