It is one year ago today that Justice Judianna Barnes sentenced Dr Mak Wan-ling to be incarcerated for three and half years for a crime she did not commit (see parts 1-4 of this blog series). I am surprised and disappointed that the Dean of Medicine of the Chinese University of Hong Kong (CUHK), Professor Frances Chan has not spoken out about the obvious injustice that has occurred to a CUHK alumni. One of the issues where Justice Barnes was so wrong concerned the matter of informed consent. Whilst informed consent is a legal obligation there is no legal definition of what constitutes an appropriate “informed consent”.
There was a flurry of excitement in the legal profession when a “new” standard of consent was declared after the ruling by the Supreme court in the UK regarding the case of Montgomery v Lanarkshire in March of 2015 . Essentially, the ruling indicated that it was incumbent upon a doctor to disclose to a patient all the material risks of a procedure and not just those that the doctor thought a patient should know (the key point of dispute had been that a doctor had not confirmed a known risk to a patient despite the fact that the patient had asked the doctor about the specific risk). It struck me when I first heard about this case that it was rather foolish of the doctor not to answer the direct question and that it should not take the Supreme court to rule on what should be common sense! But then the previous standard had been that if you could find a few fellow professionals to say that the failure to disclose a fact was reasonable, then all was well. That is an equally foolish stance to take, in my opinion.
One of the great failings of the law is the lack of the appreciation of context when considering whether a medical action is acceptable or not. This is just not appropriate when looking at complex medical issues. Mind you, the medical profession can be equally sclerotic in thinking. A good example of dangerous rigidity of thought comes from my own field of burn care. In the acute management of a major burn there is a “check list” of interventions necessary. Those who have had experience of burn care will be familiar with the term, “escharotomy”. Literally making a hole in the eschar. The eschar is the thick inflexible burn tissue. When a limb or the thorax are enveloped with a circumferential eschar the tissues in the limb cannot expand, or the thorax move. This occurs at a time when vasoactive peptides released from the burn wound cause a systemic leaking of fluid from the vascular into the extravascular tissues. This fluid shift leads to an increase in tissue pressure that would normally be compensated for by the stretching of the overlying skin. However, because of the inflexible eschar, the internal tissue pressure rises to a level that begins to interfere with blood flow in the limbs and impairs respiratory excursion in the thorax. To counter these pathological effects the escharotomy has become a procedure to be undertaken in the acute phase of management.
The problem is that a crucial dimension of assessment, time, is overlooked. This could be translated into the legal framework of assessment as “context”. I have argued that the failure to consider context or time is fundamentally flawed and potentially dangerous. In the burn patient, the outcome, adequate perfusion of the tissues and unimpeded respiratory excursions requires repeated assessment and staged interventions. This is a process not a procedure .
“Informed consent” is not a one stop shop, a procedure. It is an evolving process which can vary between patients. The failure to appreciate this reality was a major failing in the flawed trail of Dr Mak and a contributary failing in the flawed trail of Dr Kwan. In the following blog I shall describe how the Jury and it would appear the Judge, Justice D’Almada Remedios, were misled in the trial of Dr Kwan. It is ironic that one of the co-authors of my paper comparing decompression and escharotomy was to become the Medical Expert in the Kwan trial who committed perjury, Dr Chan JY.
1. See Montgomery and informed consent: where are we now? BMJ 2017;357:j2224 This is an open access article with a Chinese Translation.
2. Burd A, Noronha FV, Ahmed K, et al. Decompression not escharotomy in acute burns. Burns 2006;32(3):284-92.