Surgical harm, consent, and English criminal law: When should ‘bad-apple’ surgeons be prosecuted?

This article examines the legal principles determining when surgical harm becomes a criminal matter. In England and Wales, and other common law jurisdictions, the criminal law has predominantly concerned itself with fatal medical misconduct via the offence of gross negligence manslaughter. The convictions of two surgeons in 2017 (Ian Paterson and Simon Bramhall), for offences against the person, suggests that police and prosecutors have, for the first time, become willing to prosecute surgeons for non-fatal surgical harm. Understanding when non-fatal surgical harm should be treated as a criminal matter is, however, a complex issue. The medical exception to the criminal law legitimizes consensual and reasonable surgical harm. Thus, the question of what is reasonable and what constitutes valid consent is key to determining the parameters of lawful surgery; however, the principles are perplexing and insofar as they may be agreed and understood, they are arguably unsatisfactory. After examining the cases involving serious surgical harm and analysing the doctrines applied, this article argues for a more patient-centred approach. The focus should be on the nature of the harm to the victim, the behaviour of the dangerous surgeon and whether a violation has occurred, rather than on traditional professional assessments, which are unduly deferential to the medical profession.

764 Is Consent Valid in Common Orthopaedic Surgeries?

Aim Consent is at the heart of the doctor-patient relationship. Valid consent should be voluntary, informed and the patient must have the capacity to make the decision. It is the doctor’s responsibility to ensure the patient can make an informed decision. The aim of this audit is to assess the validity of consent within Salford Royal Foundation Trust Orthopaedic department. Method We retrospectively reviewed 225 consent forms for four common orthopaedic trauma procedures: 44 wrist ORIF, 48 ankle fixation, 71 hip hemiarthroplasty and 62 fixations with DHS. BOA-endorsed OrthoConsent and SRFT-produced leaflets were utilised as a standard for reported surgical risks and complications. Collated patient consents were compared against these standards. Exclusion criteria included consent four and polytrauma patients. Results 96 forms were excluded leaving 129 consent forms. In all four procedures, 86%-100% had documented infection, nerve injury and bleeding. Compartment syndrome was not documented for any wrist ORIF patients. CRPS was recorded in only 57% of wrist and 31% of ankle ORIF patients. Wound healing complications was documented in 17% of ankle ORIF. In 71% of DHS and 64% of hemiarthroplasty patients, risk of death was not recorded. Conclusions Targets for achieving satisfactory consent form documentation were not met and showed significant variation amongst clinicians. It suggests that patients are not being fully informed of benefits and risks of surgery. Recommendations include the introduction of posters and encouraging printing off patient information leaflets and improving education on valid consent for rotational doctors.

672 Emergency Laparotomy Patients: Is the Current Local Consent Process Compliant with Local and National Guidelines?

Aim Obtaining valid consent is crucial to patient care. It also minimises the chance for claims regarding legal action for battery, breach of human rights and/or successful clinical negligence claims. In this project, we assessed whether a documented discussion took place prior to signing consent forms and whether consent forms were being completed adequately. Method This was a retrospective audit based on the Royal College of Surgeons’ (Good Surgical Practice) guidelines and the local trust policy. We assessed 50 case notes of patients who had a laparotomy from January 2019 to April 2020 in a busy district general hospital in the UK. Results We noted that our practice was fully compliant with documenting patient demographics, signatures, and the name of the procedure in consent forms. On the other hand, we found that, in the majority of cases there was no documentation of detailed benefits, risks, alternatives of surgery in case notes where compliance was only 21%. In addition, poor compliance was noted in documenting some of the possible risks e.g., hernia (50% compliance), leak (46% compliance) and ileus (26% compliance). Conclusions A detailed discussion with the patient and family including benefits, risks and alternatives of surgery should take place and this should be documented clearly in the case notes prior to signing the consent form.

Autonomy and the Folk Concept of Valid Consent

Consent governs innumerable everyday social interactions, including sex, medical exams, the use of property, and economic transactions. Yet little is known about how ordinary people reason about the validity of consent. Across the domains of sex, medicine, and police entry, Study 1 showed that when agents lack autonomous decision-making capacities, participants are less likely to view their consent as valid; however, failing to exercise this capacity and deciding in a nonautonomous way did not reduce consent judgments. Study 2 found that specific and concrete incapacities reduced judgments of valid consent, but failing to exercise these specific capacities did not, even when the consenter makes an irrational and inauthentic decision. Finally, Study 3 showed that the effect of autonomy on judgments of valid consent carries important downstream consequences for moral reasoning about the rights and obligations of third parties, even when the consented-to action is morally wrong. Overall, these findings suggest that laypeople embrace a normative, domain-general concept of valid consent that depends on the possession of autonomous capacities, but not the exercise of these capacities. Autonomous decisions and autonomous capacities thus play divergent roles in moral reasoning about consent interactions: while the former appears relevant for assessing the wrongfulness of consented-to acts, the latter plays a role in whether consent is regarded as authoritative and therefore as transforming moral rights.

The Concept of an “Act of a Sexual Nature” in Criminal Law

All jurisdictions assume a concept of an act of a sexual nature by regulating sex crimes. Until the sex revolution and feminist movements for equality in sexual relations, criminal law was mostly concerned with specific types of sexual acts, particularly non-marital sexual intercourse. With the paradigm shift of recent years, criminalization tends to embrace all acts of a sexual nature with another person without her valid consent. Whether the law contains a definition of a sexual act or not, borderline cases show that neither merely objective criteria nor purely subjective elements can serve as basis for the description of the conduct under prohibition. Our Article tries to overcome this deficit in the criminal law theory. Sexual acts should not be understood through the metaphor of a “picture,” as German legal scholars believe, but with the metaphor of a script played out by an actor as sexual theorists put it.

Why We Should Reject the Intention Condition

This chapter argues that we should reject the Intention Condition, according to which an action falls within the scope of consent only if the consent-giver intends to permit this action. There are two key objections to the Intention Condition. The False Belief Objection concerns the possibility that a consent-giver lacks a permissive intention because they express their consent while falsely believing that this expression does not constitute valid consent. The Mistake Objection concerns consent-givers who make mistakes when communicating consent. Because of these mistakes, the consent-givers do not intend to permit certain actions, even though their behaviour expresses permission for these actions. When the consent-giver’s intentions diverge from their public behaviour, the scope of their consent is determined by the appropriate interpretation of their behaviour. Since the Intention Condition implies otherwise, we must reject the Intention Condition. Since the Intention Condition is entailed by both the Permissive Intention Principle and the Successful Communication Principle, we must reject both these principles.

The Question of Consent’s Scope

This chapter frames this book’s inquiry by discussing the question of what fixes the scope of consent and the methods to use in order to answer this question. The question of the scope of consent is a question about which moral changes are brought about by consent. When someone’s consent is valid, it releases the consent-receiver from duties. This book sets to one side the questions of which duties we have and which conditions must be met for consent to be valid. Instead, this book asks a downstream question. Phrased in terms of duties, this question is: of all the duties from which the consent-giver can release the consent-receiver, what determines the duties from which the consent-receiver is released by the consent-giver’s valid consent? To answer that question, this book will use four methods. First, this book will adopt the comparative method in moral philosophy by comparing the pros and cons of three rival accounts. Each account is made up of a view of consent, a principle for consent’s scope, and an argument that supports this view and principle. Second, this book will develop and evaluate these accounts by adopting the method of cases, which involves considering accounts’ implications for various cases. Third, this book will look at bigger-picture arguments. Fourth, this book will inform our discussion by drawing on work in the philosophy of mind, the philosophy of language, and epistemology.

Gender dysphoria in adolescents: can adolescents or parents give valid consent to puberty blockers?

This article considers the claim that gender diverse minors and their families should not be able to consent to hormonal treatment for gender dysphoria. The claim refers particularly to hormonal treatment with so-called ‘blockers’, analogues that suspend temporarily pubertal development. We discuss particularly four reasons why consent may be deemed invalid in these cases: (1) the decision is too complex; (2) the decision-makers are too emotionally involved; (3) the decision-makers are on a ‘conveyor belt’; (4) the possibility of detransitioning. We examine each of these reasons and we show that none of these stand up to scrutiny, and that some are based on a misunderstanding of the nature and purposes of this stage of treatment and of the circumstances in which it is usually prescribed. Moreover, accepting these claims at face value could have serious negative implications, not just for gender diverse youth, but for many other minors and families and in a much broader range of healthcare settings.

Effective use of Translation Services in Dentistry

Translation services are central to effective communication with patients unable to speak English, or with hearing impairment. This article gives an overview of the cost of translation services in key secondary care locations and provides guidance on how best to optimize their use clinically. Freedom of information requests were made to 20 dental hospitals in the United Kingdom to ascertain the number and cost of interpreter and sign-language appointments. We highlight the importance of using these necessary but costly services effectively. CPD/Clinical Relevance: Guidance is given on how to best use translator services in a dental setting, better ensuring valid consent and promoting patient autonomy.

O73: IMPROVING CONSENT WITH A VISUAL TOOL FOR COMMUNICATING SURGICAL RISKS

Introduction Patients must understand the risks of a procedure to provide valid consent. Guidance from the General Medical Council and Royal College of Surgeons of England highlights that surgeons need to communicate risks in a way that patients can understand, and both institutions specifically mention the use of written information. We aimed to improve communication of surgical risks to patients undergoing thyroid surgery. Method Over 3 months, all patients undergoing thyroid surgery in a tertiary referral centre were included (n=51). Participants were given a 10 point questionnaire after the consent process. Each question had 4 options (very common, common, uncommon and rare) and tested participant understanding of surgical risks. Our intervention was a single page annotated graphic, which used a traffic-light system to explain surgical risks. Result When consented prior to our intervention (n=28), patient understanding of the magnitude of surgical risks was poor; median questionnaire score was 4.5 out of 10, and for some questions <15% of participants selected the correct answer. Following introduction of our surgical risk tool (n=23) median overall participant score increased from 4.5 (range 2-7) to 8.0 (4-10) out of 10 (P<0.0001; Mann-Whitney U test). Conclusion Patients must understand the risks of an operation, and the magnitude of those risks, in order to provide valid consent. Addition of a visual surgical risk tool enabled us to increase patient understanding of surgical risks, improving the consent process. This has implications not just for thyroid surgery, but for any procedure requiring consent. Take-home message Clear communication of surgical risks is essential to obtain valid consent. The use of a visual surgical risk tool increases patient understanding of risks, and therefore improves the consent process.