Michelle Parsons v Isle of Wight NHS Trust

Informed consent requires a patient to be told about material risks of recommended treatment and reasonable alternative treatments, including their relative benefits and risks. A general recommendation for a procedure does not authorise materially different treatment after circumstances change. Where initial epidural attempts fail, the anaesthetist must obtain further informed consent before proceeding with unconscious attempts and must explain that the procedure is optional and alternatives remain available.

Failure to obtain that consent may make the further intervention a battery. A court applying the professional-negligence standard may accept a responsible body of medical opinion only where its reasoning has a logical basis and addresses comparative risks and benefits.

The claimant suffered spinal-cord injury and an epidural haematoma during attempts to provide postoperative pain relief after bowel-cancer surgery. Three epidural attempts were made while she was awake, followed by seven attempts while she was under general anaesthetic. The defendant accepted that the injury occurred during the unconscious attempts but disputed breach, consent and causation.

The central issues were whether the claimant had given informed consent to the unconscious epidurals and whether ten attempts in total amounted to negligent treatment. The court also considered the adequacy of the clinicians’ records and the expert evidence. The claim was tried as a first-instance clinical-negligence action.

1. Consent and breach. The claimant was told about the risks of epidural anaesthesia, but was not given adequate information about reasonable alternatives, including patient-controlled analgesia, or their relative benefits and risks. Her consent to the waking epidurals was therefore not informed. After three painful and unsuccessful waking attempts, the defendant’s anaesthetist did not explain that unconscious epidural attempts were optional, did not offer the alternatives again, and did not obtain further consent. The claimant would have refused further epidurals and chosen patient-controlled analgesia if properly advised.
2. Battery and causation. The seven unconscious attempts were undertaken without consent and constituted a battery. The neurological injury occurred during those attempts. The failure to obtain informed consent was therefore causative of the injury and resulting loss.
3. Number of attempts. The separate allegation that ten attempts were negligent was rejected. Although the risks accumulated and the number was at the outer limit of acceptable practice, a small but reasonable body of anaesthetists could regard the decision to proceed with unconscious epidurals and the total number of attempts as professionally acceptable. The court applied Bolam and required the supporting professional opinion to satisfy the logical-basis qualification in Bolitho.
4. Records and experts. The clinicians’ failure to record consent discussions, alternatives, levels and numbers of attempts was poor clinical practice and materially affected credibility. The court preferred Professor Hardman’s evidence on most disputed matters, but accepted Doctor McCrirrick’s evidence on the unresolved professional debate and total number of attempts.
5. Order. Judgment was entered for the claimant for agreed damages of £1.3 million. Consequential matters were to be agreed if possible.