Informed Consent in Surgical Practice

Lessons from N.Q. v. Dr R.P. & Others and Comparative Case Law

Patient and physician names in this briefing have been reduced to initials to support anonymity. The full case citation is retained in the References section for legal traceability.

Purpose

This briefing examines what a robust informed consent process should look like in surgical practice, using the 2025 High Court decision in N.Q. v. Dr R.P. & Others as a case study, and drawing on comparable jurisprudence from the United Kingdom, Australia, and Canada. It is intended to support clinical governance teams, hospital boards, and individual practitioners in strengthening consent processes and reducing medicolegal exposure.

1. The N.Q. Case: What the Court Found

In September 2006, N.Q. was admitted to Aga Khan University Hospital, Nairobi, for treatment of pelvic endometriosis. She consented to a hysterectomy — removal of the uterus and ovaries — to be performed by Dr R.P., a consultant gynaecologist.

A hysterectomy can be performed as a total procedure, in which the cervix is removed along with the uterine body, or as a subtotal (supracervical) procedure, in which the cervix is preserved. Both are legitimate surgical options, each with different implications for future cancer screening, recovery, sexual function, and surgical risk. During N.Q.'s operation, Dr R.P. removed the cervix and used a different surgical approach from the one initially agreed. The High Court found that this went beyond the scope of what had been consented to, and that the change was not adequately discussed or authorised in advance. Her bladder was injured during the procedure, and she subsequently developed a vesico-vaginal fistula, requiring further treatment, including specialist care in South Africa.

On 4 June 2025, in Civil Suit E610 of 2007 [2025] KEHC 13512 (KLR), Justice Alexander Muasya Muteti awarded N.Q. and her spouse KSh 157,207,524 in damages, finding both Dr R.P. and Aga Khan Health Services Kenya liable.

What the Judgment Turned On

• Scope of consent: consent to “removal of the uterus and ovaries” was found not to have clearly extended to removal of the cervix, and the court treated this ambiguity — and the intraoperative deviation from the agreed plan — as central to the negligence finding.

• Statutory basis: the court held that the unauthorised extension of the procedure violated Section 9 of Kenya's Health Act, which enshrines the principle of informed consent.

• Comparative standard: the judgment drew on the patient-autonomy test set out in the UK case of Montgomery v Lanarkshire Health Board, signalling that Kenyan courts are willing to apply an international, patient-centred consent standard rather than a narrower, profession-defined one.

• Institutional liability: the hospital was found independently liable — not merely vicariously — for permitting a practitioner with an undisclosed disciplinary history in another jurisdiction to operate, and for lacking diagnostic equipment (a flexible cystoscope) that could have identified the bladder injury sooner.

  
  

The central lesson is not that removing a cervix during a hysterectomy is inherently improper — clinically, it is a routine and often preferable option. The lesson is that anatomically related terms (“uterus”, “hysterectomy”) can conceal a real decision point that a patient is entitled to understand and choose between in advance, and that credentialing and equipment readiness are themselves part of the consent and safety chain.

2. How This Specific Ambiguity Should Be Avoided

• Name the procedure type explicitly. Consent documentation should specify “total abdominal hysterectomy” or “subtotal/supracervical hysterectomy”, not simply “removal of the uterus”.

  
  

• Explain the trade-off in plain language. Patients should understand that hysterectomy can mean cervix-out or cervix-in, why a particular option is being recommended for their condition, and what each implies for screening, recovery, and sexual function.

  
  

• Pre-agree the contingency. Where the operative plan might reasonably change once the surgeon is inside (for example, if endometriosis is found to involve the cervix), that possibility should be discussed and consented to before surgery, with documented criteria for what would trigger an extension of the procedure.

  
  

• Default to pausing when the plan changes materially. Where circumstances allow, the safer course when the intraoperative picture differs materially from what was consented to is to stop, close, and re-consent, reserving unilateral extension for genuine emergencies — documented with clinical justification.

3. The International Legal Standard: Montgomery and Beyond

Montgomery v Lanarkshire Health Board [2015] UKSC 11 is the reference point the Kenyan court drew on, and it is now a useful working standard for consent practice generally.

• The doctor is under a duty to take reasonable care to ensure the patient is aware of any material risks involved in a recommended treatment, and of any reasonable alternative or variant treatments.

  
  

• Materiality is tested two ways: whether a reasonable person in the patient's position would attach significance to the risk, or whether the doctor knows or should know this particular patient would attach significance to it.

  
  

• This replaced the earlier Bolam approach, under which consent adequacy was judged largely by what a responsible body of medical opinion would have disclosed, with a standard centred on the patient's own informational needs.

Montgomery itself was influenced by the High Court of Australia's decision in Rogers v Whitaker (1992) 175 CLR 479, which had already rejected a purely profession-defined disclosure standard. Canada's Supreme Court reached a similar position in Reibl v Hughes [1980] 2 SCR 880. Across three major common-law jurisdictions, courts independently converged on the same conclusion: consent is measured against what the patient needs to know to decide, not against customary practice within the profession.

4. Ensuring a Patient Has Actually Understood

A signature confirms documentation, not comprehension. A defensible consent process typically includes the following layers.

1. Teach-back, not tell-and-ask. After explaining diagnosis, procedure, risks, benefits, and alternatives (including doing nothing), ask the patient to explain it back in their own words, and document what they said rather than only that the topic was covered.

   
   

2. Layered timing. Consent is not a single event minutes before surgery. An initial discussion at the point of decision-making, a follow-up conversation closer to the procedure date, and a final confirmation on the day should each be documented separately.

   
   

3. Patient-specific risk disclosure. The consent note should reflect risks material to that particular patient — age, comorbidities, occupation, fertility plans — rather than generic boilerplate.

   
   

4. Scope discipline. Any intraoperative change to the agreed plan should default to re-consent where clinically feasible, with deviations documented and justified.

   
   

5. Appropriate family or witness involvement, where culturally relevant, without displacing the patient's own decision-making authority unless explicitly delegated.

   
   

6. Credentialing behind the scenes. Consent is only meaningful if the practitioner obtaining it is properly qualified and vetted; verifying a practitioner's disciplinary history is itself part of the consent chain, since patients reasonably assume it.

5. Why Complaints Escalate After Complications — and How to Mitigate This

Complaints are rarely about the consent conversation in isolation; they surface after a complication, and the complication becomes the lens through which the entire prior interaction is re-examined. Several mechanisms drive this escalation, and each has a corresponding mitigation.

Escalation Drivers and Mitigations

• Hindsight bias: once an adverse outcome occurs, every prior interaction is scrutinised for signs it was foreseeable and undisclosed. Mitigation: contemporaneous, patient-specific documentation created at the time of the discussion, not reconstructed afterwards.

  
  

• Silence after the event: what most often pushes a complaint toward litigation is the sense of being shut out afterward, more than the original clinical error itself. Mitigation: timely, honest, structured disclosure following any adverse event.

  
  

• Generic consent forms: templated forms are read, in hindsight, as evidence that nothing specific was actually explained. Mitigation: individualised consent notes reflecting the specific conversation held.

  
  

• Slow or absent complaints handling: families who cannot get answers internally often turn to external routes such as media or legal counsel. Mitigation: a structured complaints and adverse-event pathway that reaches the patient within days.

  
  

• Isolated clinician response: a purely individual, defensive response signals an unaddressed systemic issue. Mitigation: pairing clinician support with root-cause review, demonstrating a functioning institutional governance system.

  
  

Open, timely disclosure of what happened — distinct from an admission of legal liability — is increasingly protected in other jurisdictions through “apology laws” (in place in various forms in the United Kingdom, Australia, and parts of the United States), which allow expressions of regret without their being treated as admissions of fault. This principle is worth considering in Kenyan hospital policy design, as it enables honest communication with patients without increasing legal exposure.

6. Summary Recommendations for Hospital Boards and Clinical Governance Teams

• Standardise procedure-specific consent language (e.g., total vs subtotal hysterectomy) across all relevant surgical specialties, rather than relying on generic organ-level descriptions.

  
  

• Require teach-back documentation as part of the consent record, not only a signed form.

  
  

• Build credential verification, including checks against disciplinary and regulatory bodies in all jurisdictions where a practitioner has worked, into onboarding and periodic re-credentialing.

  
  

• Audit equipment and diagnostic readiness for common complications of high-volume procedures.

  
  

• Establish a rapid, structured open-disclosure and complaints pathway, supported by clear policy on non-admissive apology.

  
  

• Periodically benchmark consent policy against evolving comparative case law (Montgomery, Rogers v Whitaker, Reibl v Hughes, and now N.Q. v Dr R.P.) as part of continuing professional development.

References

N.Q. & Another v Dr R.P. & 2 Others [reported as Naila Qureshi & Another v Dr Raffique Parker & 2 Others], Civil Suit E610 of 2007 [2025] KEHC 13512 (KLR), delivered 4 June 2025.

Montgomery v Lanarkshire Health Board [2015] UKSC 11.

Rogers v Whitaker (1992) 175 CLR 479 (High Court of Australia).

Reibl v Hughes [1980] 2 SCR 880 (Supreme Court of Canada).

Republic of Kenya, Health Act (No. 21 of 2017), Section 9.