Patients and surgeons should be aware that much of the litigation that arises out of cosmetic surgery concerns pre-operative advice rather than the performance of the surgery itself. I have conducted many cases involving the issue of consent to cosmetic surgery. Here are a few matters for patients, surgeons, litigants and their representatives to consider:
The Nature of Cosmetic Surgery
Cosmetic Surgery has been described by the
Independent Healthcare Advisory Services, in the 2006 publication Good Medical
Practice in Cosmetic Surgery, as comprising “operations and other procedures that revise
or change the appearance, colour, texture, structure or position of bodily
features to achieve what patients perceive to be more desirable.” It is not surgery to alleviate pain or disability or to prevent death. Predominantly it is designed to meet what the patient considers to be desirable. In some cases, it might be argued, cosmetic surgery may alleviate psychiatric or psychological suffering, but in every case the patient's desire to have the surgery will have a psychological and/or social motivation. Thus the process of obtaining informed consent to cosmetic surgery will be different in character from the process of obtaining consent to, say, bowel surgery for diverticulitis. The surgery is always elective and in most cases the patient will not suffer pain or disability as a result of chosing not to have the surgery. In nearly every case the patient's choice to proceed will come at a financial cost - cosmetic surgery is rarely performed by the NHS.
Given the motivations to seek cosmetic surgery, it would seem sensible to have some form of psychological assessment of all patients. It has been suggested that a significant proportion of patients seeking cosmetic surgery have an identifiable psychological disorder. Some will have body dysmorphic disorder. Many will seek surgery at or following very difficult life events such as divorce. Their mental state can affect their motivation to have surgery and the likelihood of the surgery satisfying their perceived desires. In order properly to advise a patient of the potential risks and benefits to them of proposed surgery, surely the surgeon needs to know something of their psychological history and condition. The National Minimum Standards which apply to the regulation of private hospitals offering cosmetic surgery, insist that referral to appropriate psychological counselling is available if clinically indicated prior to surgery [A26.4] but who decides if it is clinically indicated if there is no routine psychological screening or assessment? The NCEPOD Report 2010 found that routine psychological assessment was performed in only 35% of those clinics which took part in the survey (only 32% of clinics responded and, as the report authors noted, they might be amongst the most conscientious clinics).
A significant number of patients self-refer for cosmetic surgery and some do not even consent to their GP being informed. If so, how does the surgeon find out whether the patient has any significant medical history? Is it reasonable to rely on the patient's own account (particularly if given to a patient co-ordinator on a pro-forma questionnaire)? Might the patient who is particularly motivated to undergo cosmetic surgery be willing to mislead the surgeon? Cosmetic surgery is purely elective, there is no urgency or emergency. There will always be time to take a full history and carry out a full pre-operative assessment and any tests that may be necessary.
The Patient's Desires
The surgery is designed to meet the wishes of the patient, not to do what the surgeon thinks would be best for them. So it is incumbent on the surgeon to elicit those wishes. There is no such thing as an ideal nose which will suit every patient. However, if what the patient seeks would have ramifications (for example very large breast implants might give rise to physical problems) then the patient needs to know of the consequences of what they are seeking. In particular in future years might further surgery be required and what will that surgery cost?
The GMC, amongst detailed guidance on consent, advises that, doctors should "identify which investigations or treatments are likely to result in overall benefit for the patient. The doctor explains the options to the patient, setting out the potential benefits, risks, burdens and side effects of each option, including the option to have no treatment. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice."
Clearly the surgeon must advise the patient on the risks and benefits of all the various surgical options which might meet the patient's desired outcome. There is little room for paternalism - the patient seeking elective surgery which is designed to meet their desires is entitled to know of a small risk of a serious consequence. Advising fully as to one option, but failing to refer to other available alternatives may result in a finding that informed consent was not obtained - Birch-v-UCL Hospital NHS Foundation Trust. The provision of written information is advisable, but is not a substitute for a full face to face discussion.
Cooling off Period
The National Minimum Standards provide at A26 that no patient should be admitted for the procedure on the same day as the initial consultation. Compare and contrast the Guide to Good Medical Practice in Cosmetic Surgery issued by the Independent Healthcare Advisory Services in May 2006: “You should not normally admit any patient for a procedure to be carried out sooner than two weeks after the initial consultation in order to allow the patient adequate time for reflection.” In my experience most reputable surgeons would follow the "two week rule" but it is far from clear that a allowing a shorter period would be negligent.
As can be seen the process of obtaining informed consent to cosmetic surgery might require considerable input of professional resources. Since cosmetic surgery is nearly always provided as part of a commercial enterprise, there will be a tension between allocating those resources and maintaining margins. Further, some might argue, there is a tension between giving proper warnings of risks, complications and future costs and the commercial imperative to increase turnover.Whatever the commercial pressures, the surgeon's duty of care and skill in giving pre-operative advice, is to the patient.
The British Association of Aesthetic Plastic Surgeons (BAAPS) has useful advice to patients/potential patients about the issues they should consider before consenting to cosmetic surgery. So too does the British Association of Plastic Reconstructive and Aesthetic Surgeons.
In order to succeed in a claim for compensation a claimant would have to establish both that the pre-operative advice was negligent and that they have suffered injury as a result of that advice. It is not always easy for a patient who was highly motivated to undergo surgery to prove that he/she would not have undergone the surgery had they been advised of a particular risk or complication.