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removes the ovaries without her specific consent, that will be a
trespass and an act of negligence. The only available defence will be
that it was necessary for the life of the patient to proceed at once to
remove the ovaries because of some perceived pathology in them.
What is meant by consent? The term ’informed consent’ is often used,
but there is no such concept in English law. The consent must be real :
that is to say, the patient must have been given sufficient information
for her to understand the nature of the operation, its likely effects, and
any complications which may arise and which the surgeon in the
exercise of his duty to the patient considers she should be made aware
of; only then can she reach a proper decision. But the surgeon need not
warn the patient of remote risks, any more than an anaesthetist need
warn the patient that a certain small number of those anaesthetized will
suffer cardiac arrest or never recover consciousness. Only where there
is a recognized risk, rather than a rare complication, is the surgeon
under an obligation to warn the patient of that risk. He is not under a
duty to warn the patient of the possible results of hypothetical
negligent surgery. ..
In advising an operation, therefore, the doctor must do so in the way in
which a competent gynaecologist exercising reasonable skill and care
in similar circumstances would have done. In doing this he will take
into account the personality of the patient and the importance of the
operation to her future well being. It may be good practice not to warn
a very nervous patient of any possible complications if she requires
immediate surgery for, say, a malignant condition. The doctor must
decide how much to say to her taking into account his assessment of
her personality, the questions she asks and his view of how much she
understands. If the patient asks a direct question, she must be given a
truthful answer. \005 To take the example of hysterectomy : although the
surgeon will tell the patient that it is proposed to remove her uterus and
perhaps her ovaries, and describe what that will mean for her future
well being (sterility, premature menopause), she will not be warned of
the possibility of damage to the ureter, vesicovaginal fistula, fatal
haemorrhage or anaesthetic death."
35. The specific case of the appellant was that she got herself admitted
on 10.5.1995 only for a diagnostic laparoscopy; that she was not
informed either on 9th or 10th that she was suffering from endometriosis
or that her reproductive organs had to be removed to cure her from the
said disease; that her consent was not obtained for the removal of her
reproductive organs; and that when she was under general anaesthesia for
diagnostic laparoscopy, respondent came out of the operation theatre and
informed her aged mother that the patient was bleeding profusely which
might endanger her life and hysterectomy was the only option to save her
life, and took her consent.
36. The respondent on the other hand contends that on the basis of
clinical and ultra sound examination on 9.5.1995, she had made a
provisional diagnosis of endometriosis; that on same day, she informed
the complainant and her mother separately, that she would do a diagnostic
laparoscopy on the next day and if the endometric lesion was found to be
mild or moderate, she will adopt a conservative treatment by operative
laparoscopy, but if the lesion was extensive then considering her age and
extent of lesion and likelihood of destruction of the functions of the tube,
a laparotomy would be done; that the appellant was admitted to the
hospital for diagnostic and operative laparoscopy and laparotomy and
appellant’s consent was obtained for such procedures; that the decision to
operate and remove the uterus and ovaries was not sudden, nor on
account of any emergent situation developing during laproscopy; and
that the radical surgery was authorized, as it was preceded by a valid
consent. She also contends that as the appellant wanted a permanent cure,
the decision to conduct a hysterectomy was medically correct and the
removes the ovaries without her specific consent, that will be a
trespass and an act of negligence. The only available defence will be
that it was necessary for the life of the patient to proceed at once to
remove the ovaries because of some perceived pathology in them.
What is meant by consent? The term ’informed consent’ is often used,
but there is no such concept in English law. The consent must be real :
that is to say, the patient must have been given sufficient information
for her to understand the nature of the operation, its likely effects, and
any complications which may arise and which the surgeon in the
exercise of his duty to the patient considers she should be made aware
of; only then can she reach a proper decision. But the surgeon need not
warn the patient of remote risks, any more than an anaesthetist need
warn the patient that a certain small number of those anaesthetized will
suffer cardiac arrest or never recover consciousness. Only where there
is a recognized risk, rather than a rare complication, is the surgeon
under an obligation to warn the patient of that risk. He is not under a
duty to warn the patient of the possible results of hypothetical
negligent surgery. ..
In advising an operation, therefore, the doctor must do so in the way in
which a competent gynaecologist exercising reasonable skill and care
in similar circumstances would have done. In doing this he will take
into account the personality of the patient and the importance of the
operation to her future well being. It may be good practice not to warn
a very nervous patient of any possible complications if she requires
immediate surgery for, say, a malignant condition. The doctor must
decide how much to say to her taking into account his assessment of
her personality, the questions she asks and his view of how much she
understands. If the patient asks a direct question, she must be given a
truthful answer. \005 To take the example of hysterectomy : although the
surgeon will tell the patient that it is proposed to remove her uterus and
perhaps her ovaries, and describe what that will mean for her future
well being (sterility, premature menopause), she will not be warned of
the possibility of damage to the ureter, vesicovaginal fistula, fatal
haemorrhage or anaesthetic death."
35. The specific case of the appellant was that she got herself admitted
on 10.5.1995 only for a diagnostic laparoscopy; that she was not
informed either on 9th or 10th that she was suffering from endometriosis
or that her reproductive organs had to be removed to cure her from the
said disease; that her consent was not obtained for the removal of her
reproductive organs; and that when she was under general anaesthesia for
diagnostic laparoscopy, respondent came out of the operation theatre and
informed her aged mother that the patient was bleeding profusely which
might endanger her life and hysterectomy was the only option to save her
life, and took her consent.
36. The respondent on the other hand contends that on the basis of
clinical and ultra sound examination on 9.5.1995, she had made a
provisional diagnosis of endometriosis; that on same day, she informed
the complainant and her mother separately, that she would do a diagnostic
laparoscopy on the next day and if the endometric lesion was found to be
mild or moderate, she will adopt a conservative treatment by operative
laparoscopy, but if the lesion was extensive then considering her age and
extent of lesion and likelihood of destruction of the functions of the tube,
a laparotomy would be done; that the appellant was admitted to the
hospital for diagnostic and operative laparoscopy and laparotomy and
appellant’s consent was obtained for such procedures; that the decision to
operate and remove the uterus and ovaries was not sudden, nor on
account of any emergent situation developing during laproscopy; and
that the radical surgery was authorized, as it was preceded by a valid
consent. She also contends that as the appellant wanted a permanent cure,
the decision to conduct a hysterectomy was medically correct and the
