Courting consent — from patient to plaintiff

Haresh Says as published in The Malay Mail today.

Does the act of signing a consent form prior to surgery automatically absolves the liability of a doctor or medical institution?

More importantly, is the consent of a spouse also required in such circumstances?

Two recent cases in the High Court — Gurmit Kaur Jaswant Singh v Tung Shin Hospital & Anor, and Abdul Razak Datuk Abu Samah v Raja Badrul Hisham Raja Zezeman Shah & Ors — come to mind.

While the facts in both cases differ, the learned judges looked into the duty of care owed to the patients, and if there was a need to explain the nature of the risks to the next of kin.

It also looked at the dependence of the patients — despite being of right sounding mind — on their spouses.

In the case of Gurmit Kaur, the plaintiff was admitted for the removal of a fibroid. She signed a consent form, but claimed her husband was not called in for the signing. In the follow-up appointment, the plaintiff was shocked to learn she could no longer conceive as a hysterectomy was performed instead.

Judicial Commissioner Rosilah Yop held that consent from the plaintiff’s husband should have been obtained for the hysterectomy since “there was no possibility of the plaintiff getting pregnant after such surgery”.

In Abdul Razak’s case, his wife had refused to have a Ryle’s tube inserted as it caused her discomfort. But the process was necessary before surgery to prevent contents of the stomach from regurgitating and getting into the patient’s lungs.

The tube was only inserted after the patient was anaesthesised and had passed out. However, while being anaesthesised, the patient regurgitated a large volume of stomach fluid, which entered her lungs and caused respiratory failure, leading to her death.

Judicial Commissioner Vazeer Alam Mydin Meera pointed out that while the patient was of right sounding mind, she was also dependent on her husband.
Abdul Razak had made the decision to transfer her from Temerloh Hospital to Kuala Lumpur Hospital, and the patient had contacted him before passing the phone to the doctor, who obtained consent to perform the surgery.

Vazeer held “even though the consent form did not require the plaintiff’s consent to the surgery, the factual matrix of the case indicated that the first defendant had a duty to inform the plaintiff (the husband) of the nature of the surgery and the inherent and material risks of the procedure, especially in view of the patient’s refusal to have the Ryle’s tube inserted. It is clear from the evidence the patient depended on the plaintiff to make the decision to proceed with immediate surgery”.

These cases have sparked a debate on whether hospitals and medical practitioners should now be required to obtain clearance from spouses prior to surgery.

Read the full article in The Malay Mail.

HD says: It will be interesting to note what medical practitioners and lawyers have to say about this.