The Supreme Court dismissed Paul Fitzpatrick’s appeal against the High Court decision in his medical-consent case, holding that a risk warning given about 30 minutes before elective eye surgery was valid on the evidence before it. The Court affirmed the High Court order.
Fitzpatrick underwent surgery at the Royal Victoria Eye & Ear Hospital in March 1994 to correct a squint in his left eye. The operation was followed by slippage of a muscle behind the eye, a rare complication that caused double vision and headaches. The judgment records that he later had further surgery, which corrected the eye’s outward turn, and declined an offer of another procedure in 1997.
At trial, Fitzpatrick said he had not been warned of the risks. The High Court rejected his evidence on that point and found that surgeon Martin Goggin had given a warning. On appeal, Fitzpatrick did not challenge that factual finding or the warning’s content. His argument was that a warning delivered while he was gowned and shortly due to go to theatre was too late to be effective, particularly for elective surgery.
The Supreme Court said a warning that a patient cannot assimilate or act on may be equivalent to no warning. It recognised that warning patients shortly before elective surgery is undesirable: stress, medication or pain may affect a patient’s ability to decide, and the risks in this case could have been explained at earlier consultations. The judgment strongly cautioned that late warnings in other cases, especially involving elective surgery, might produce a different outcome.
But the Court found no evidence that Fitzpatrick was materially disadvantaged by the timing. He was not sedated or in pain, and his evidence described a clear state of mind and a cordial, relaxed conversation with Goggin. He had not said he was unable to understand or deal with a warning at that time. The Court therefore declined to find the warning invalid on the facts of this case.
Because it upheld the warning, the Court said it did not need to examine causation in detail. It added that, even if the warning had been ineffective, it would not have found the trial judge’s causation conclusion mistaken: in the Court’s view, a reasonable patient seeking cosmetic improvement would have proceeded despite the statistically remote risk of muscle slippage and double vision.
The judgment also endorsed a patient-centred approach to material risks, asking whether a reasonable person in the patient’s position would attach significance to the risk. The Court described the risk in this case as significant or material, while deciding that the timing of the warning did not invalidate it on the evidence presented.