Consent and Plastic Surgery - written by Freya Johnson, Trainee Solicitor, Clinical Negligence

Factual background

Cosmetic surgery is a big business. It is a fast-growing, profit-making industry that actively promotes and sells surgery as a luxury service. The commercial nature of cosmetic surgery puts pressures on patients and providers that are unlike those within other fields of healthcare provision.

It is in the interests of providers within this industry to generate custom but cosmetic surgery is always elective. Individuals choose to become patients.

Consent to treatment

A very common feature of cosmetic surgery litigation is that of informed consent. Pre-operative advise is always important, but in cosmetic surgery cases it is potentially minefield for the practitioner. First, the patient is electing to undergo surgery. They do not have a physical need for it. The balance of risks and benefits is necessary different from an operation to remove a malignant tumour. You either have surgery with all the attendant risks, or you do not have it in which case you stay exactly as you are.

The first task for the surgeon is to discern what the patient desires. It is an exploration of what the patient believes needs changing, and how they want it to change. There is no such thing as a perfect nose. What does the patient think is unsatisfactory about their nose, and how would they like it to look?

Has the patient thought through the consequences of getting what they seek?

It is always important that pre-operative information is given in circumstances that allow the patient fully to assess and weigh that information before deciding whether to consent to treatment. In too many cosmetic surgery cases, the patient has paid the deposit, sometimes even the full price for a procedure before meeting the surgeon to discuss the prolonged surgery. They naturally feel committed to going ahead. The Montgomery v Lanarkshire principle requires the surgeon to take reasonable care to make the patient aware of the material risks of the proposed procedure and of reasonable alternative and variant treatments.

The healthcare professional has a duty of care to advise a patient of all the material risks of alternatives to surgery and so forth. But for the commercial imperative for the business is to make the sale. The drive to make money would naturally lead to the patient being encouraged to elect to proceed with surgery.

Similar cases

Many cosmetic surgery claims are based on an alleged failure to warn of risks and or/ to obtain informed consent to the procedure. Such as the outcome of the surgery was not what was desired and unnecessary surgery was performed. For example, we have dealt with similar cases at Clear Law whereby the risks were not fully explained to the Client before proceeding with the surgery. Implications then arise which end up with the Client suffering from prolonged pain and suffering whereby they were not informed of the risks in the initial consultation and end up with having to undertake multiple corrective surgeries which would have been avoided. Many people have even confirmed that if such implications and risks had been properly explained in the first instance they would not have undergone the surgery in the first place.