Avoid complaints by getting consent in surgery

Minor surgical procedures are usually straightforward, but practitioners should be aware of some common pitfalls. Dr Clare Devlin explains more.

Patients value the speed and convenience of having minor surgical procedures undertaken privately, but there are inherent risks that practitioners should be aware of and minimise to avoid claims. 

A common feature in many clinical negligence claims relating to minor surgery is a problem with consent. 

Shortcomings in the consent process can occur even with the most experienced doctors and sometimes make the difference between a successful defence and settlement. 

When the doctor and patient discuss the treatment options available, this must include alternatives such as non-surgical management or no treatment at all – and when fully informed, the patient then agrees to a particular course of action. 

On top of the expected benefits of treatment, patients need to understand the risks and potential complications.

Following the 2015 Supreme Court judgment in Montgomery v Lanarkshire, it is important for doctors to have an individualised discussion with a patient, so that the ‘material’ risks – the significant risks that may matter to the patient – are identified and addressed

Material risks

The Supreme Court ruling explains what it considered to be a ‘material’ risk: ‘The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. 

‘The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’ 

A way to open this individualised consenting discussion can be to ask a patient if there is anything in particular that they are concerned about or anything in particular that would make them decide against treatment.

The Montgomery judgment emphasises the expectation of discussion taking place between patient and doctor: ‘The doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. 

‘This role will only be performed effectively if the information provided is comprehensible. The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.’ 

Record-keeping in the consent process

An important feature of the consenting process is documenting the issues that were discussed with the patient during the process, as well as taking the patient’s signature on a consent form when consent is written. 

In the absence of documentation of the issues discussed, it is possible to give an account of your usual practice when consenting a patient for the procedure in question.

But if the patient brings a claim and disputes that certain points were discussed, it is important to have a contemporaneous record of the consenting discussion to support your account. 

It can also be helpful to record that the patient was asked if they had any particular concerns or any particular issues that were important to them.

Working within your competence

The GMC guidance Good Medical Practice sets out clearly that ‘You must recognise and work within the limits of your competence’. 

When doing minor surgery, it is important to be mindful of securing appropriate training and assistance, where required, and being prepared for how you will manage any complications encountered.

Common problems in minor procedures


Cryotherapy can be complicated by scarring that can lead to cosmetic concerns in certain patients. They may then seek dermatology review and further dermatological management of the scarring. 

In some cases, their scarring may ultimately need to be addressed with camouflage make-up.

It is also possible for burns from cryotherapy to be deep and even require skin grafting or undergo protracted healing by secondary intention. 

Discussion of possible scarring will therefore be important in the consenting process and a documented consenting discussion could enable minor scarring to be defended in the context of a claim.

Implanon contraceptive implant

A number of different complications can be seen with the contraceptive implant. 

It is possible, if interrupted or distracted during the insertion procedure, to lose one’s place in the procedure and to believe the procedure has been completed when the implant is in fact still in the introducer. 

This risk can be avoided by always palpating the implant after insertion. Using a check list can also prevent steps being forgotten when you are busy and experiencing distractions. 

Alternatively, the implant may be wrongly sited or can appear to migrate from an initially correct and palpated site of insertion. 

It can lead to symptoms such as pain or tingling and, in some cases, may require referral to secondary care for removal if it is not possible to locate and remove the implant in the clinic. 

So it is important to document the anatomical site of Implanon insertion within the patient’s medical record.

Intra-uterine contraceptive device 

It can happen that an intrauterine device (IUCD) is inserted without the previous one having been removed. This can be avoided by taking a clear history from the patient of the removal of their previous IUCD and looking for corroboration of the patient’s account in the medical records. 

Another complication that we see in IUCD clinical negligence claims is uterine perforation, leading in some cases to chronic pelvic pain or unplanned pregnancy.

Clear documentation of the discussion in the consenting process and the steps taken in the insertion procedure itself can be of assistance in defending such claims, by demonstrating that the practitioner had a reasonable insertion technique. 

We can also make use of an account of the practitioner’s training and experience in IUCD insertion, together with a detailed statement of their usual practice.

Ingrown toenail surgery

Toenail procedures can lead to claims about pain, bleeding and infection, which can even progress in some cases to osteomyelitis, requiring prolonged antibiotic treatment or further surgery. 

A detailed record of the consenting process, including discussion of all options available to the patient, will assist in defending these claims.

Dr Clare Devlin (right) is a medico-legal consultant at Medical Protection