It wasn’t written down but it did happen
We consider a recent decision of the Scottish Courts where the absence of a written record of the discussions underpinning consent to a surgical procedure were successfully overcome by the Surgeon’s evidence at trial.
M died in September 2013 as the result of multiorgan failure secondary to sepsis. The sepsis resulted from a procedure, a ureterscopy, which had been planned as part of the follow up of a ureteric stone diagnosed in July 2013. An interval radiograph raised the possibility that the ureteric stone had passed. Nonetheless, the patient continued to report symptoms suggestive of a ureteric stone. The ureteroscopy was undertaken without any further imaging. Amongst other matters, the claimants (pursuers) alleged that the surgeon had not obtained informed consent for the procedure.
Evidence of Consent
The contemporaneous evidence of consent consisted of a signed consent form, which did not include a record of the risks which were discussed. There was no contemporaneous record of the consenting discussions. The surgeon had dictated a letter in theatre on the day of the procedure but this did not set out the discussions relating to consent.
The only witnesses to the consent discussions were the surgeon, a junior colleague and the patient, now deceased. There was no evidence from the junior colleague. The court received factual evidence on the issue of consent from the surgeon and from a relative of the deceased.
The earliest documentary evidence of discussions between the surgeon and the patient was set out in the surgeon’s letter of response to a complaint raised after the patient’s death. There was a dispute as to what if anything had been discussed with the patient.
The claimants (pursuers) submitted that the absence of a contemporaneous record “told against the credibility and reliability of [the Surgeon].” They also submitted that the lack of contemporaneous record regarding consent, made it difficult or impossible for the claimants (pursuers) to adduce relevant evidence and that the course should draw an adverse inference as a result. However, the Surgeon’s evidence during the proceedings was that she had discussed the relevant risks and benefits and the available treatment options.
Thus, the only direct evidence of the consenting discussion in this case was the Surgeon’s account. An account which, if accepted, would provide a defence to the claim. Many healthcare professionals familiar with the aphorism “if it is not written down it didn’t happen” might immediately conclude that that the Surgeon’s account would be rejected. However, that aphorism is not a rule of evidence. As lawyers would expect, the Court considers all the available evidence in order to reach a view on the facts.
It is no surprise that the lack of a contemporaneous note created difficulties for the Surgeon. The judge noted:
“I approach Ms Seaward’s evidence about the events of 23 September 2013 with caution, given the absence of a contemporaneous record. The absence of a proper record of the consent process is unsatisfactory.”
The judge was also cautious in her approach to the Surgeon’s letter responding to the complaint.
“Although I accept that her memory would have been fresh at the time that she wrote the letter of 25 November 2013, it is a response to a complaint. There is a risk that the author of such a letter may come to produce an account which is fashioned, consciously or unconsciously, with a view to resisting the complaint.”
But the judge continued:
“In spite of this, I was impressed by her oral evidence. She appeared to be a careful, quietly spoken and slightly diffident individual. She was clearly distressed by the death of the deceased. That would not necessarily enhance her credibility, as it might provide a context for evidence given with a view to justifying her actions, but my impression was of sorrow and regret, rather than defensiveness or self-justification. I formed the view that she was doing her best to tell the truth in giving her recollection of the discussion with the deceased on 23 September 2013 and that her evidence was generally reliable.”
The judge also noted that certain aspects of the Surgeon’s account were corroborated by other evidence. The judge was also cautious about relying on the evidence of the deceased’s sister noting that: and she indicated that she was not prepared to
“[I]t necessarily involved a degree of speculation on her part as to what the deceased would have done in particular circumstances”
Despite the absence of a contemporaneous written record the Court accepted the Surgeon’s evidence at trial that she had properly consented the patient.
The importance of making contemporaneous records of discussions related to consent is not in doubt. The absence of records creates problems for professionals and for patients. The aphorism “if it’s not written down it didn’t happen” is useful in impressing the importance of record keeping to healthcare professionals. However, it is an aphorism which has been abused on occasion being used as if it were a rule of law; Indeed, the aphorism is obviously illogical. A number of notable decisions have highlighted the problems with treating it as a rule of decision-making.
This case demonstrates the approach which decision-makers should take in the absence of contemporaneous records namely, to look at such evidence as is available and decide what weight ought to be attached to it.
 Alan McNab and others v Greater Glasgow Health Board  CSOH 53
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.