The claim in R B v Smith was based on an alleged failure by a surgeon (who performed a laparoscopic hernia repair on the appellant) to provide the appellant with sufficient information to enable her to give informed consent for the surgery which resulted in colon perforation.

There was no negligence on the surgeon’s part in performing the laparoscopy (where the operation could have been done by laparotomy). The only remaining issue was consent. On the facts the court held there was sufficient consent.

The surgeon said the patient gave him informed consent orally prior to the day of the operation and signed a written consent before the operation. He informed her of the nature of each of the two possible medical procedures open to her and the attendant material risks and benefits. He said that in his opinion the laparoscopic procedure would be better and oral consent was given.

In a claim for damages based on negligence for failure to warn a patient of material risks or complications attendant on a treatment or surgical procedure, the courts employ a patient-based approach. A patient’s freedom to self-determination includes the right to decide whether to undergo surgery. The patient must have had knowledge and must have appreciated the nature and extent of the possible harm and material risks.

If the patient’s consent is relied on the doctor is obliged to have warned the patient of the attendant material risks. A risk is regarded as material when a reasonable person in the patient’s position, warned of the risk, would likely attach significance to it; or where the medical practitioner is aware that, if warned, the patient would likely attach significance to it. No negligence in relation to obtaining the informed consent was found.