Informed consent in personal injury proceedings (Diamond v Royal Devon)

Jerard A Knott, associate solicitor, head of medical negligence and serious injury at Curtis Law Solicitors LLP, Blackburn and Manchester discusses the recent case of Diamond v Royal Devon and Exeter NHS Foundation Trust.

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What is the significance of this case? Why is it important for practitioners?

This recent case, Diamond v Royal Devon and Exeter NHS Foundation Trust, explored again the developing issue of informed consent. Since Montgomery v Lanarkshire [2015] UKSC 11, consent has become one of the major issues arising in clinical negligence claims. Unfortunately, the position is often misunderstood.

It was established in Montgomery that there was a duty for a doctor to warn a patient of a material risk inherent in the treatment and discuss this with them. What constitutes a material risk will vary from patient to patient. Therefore consent has to be patient-specific.

The Montgomery test for materiality is ‘whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would likely attach significance to it’.

The judges pointed out that it is not sufficient to ask the patient if they want to know anything else, as patients cannot be expected to know what they do not know about their condition, or treatment options.

How helpful is this judgment in clarifying the law in this area? Are there any remaining grey areas?

In Diamond it was held that a surgeon failed to advise the claimant, who attended for abdominal hernia repair (that was itself a post-operative incisional hernia following spinal surgery), of the alternative of suture repair (that was highly unlikely to succeed) rather than a mesh repair. The latter would lead to possible complications in pregnancy.

HHJ Freeman (sitting as a High Court judge) held that at para [28]:

’There was a breach of duty in relation to the counselling process for the mesh repair:

  • it should have been explained to the claimant that there was attendant upon a mesh repair certain risks, should she become pregnant in the future, and
  • the claimant should have been told a primary suture repair as opposed to mesh repair was possible even if there was a high risk of failure.’

The Court then considered causation. It was held that had the claimant have been counselled adequately as to the risks and benefits of each alternative treatment, on the balance of probabilities, the surgeon would have provided the claimant with reasonably adequate information for her to make a properly informed decision as to her treatment.

The claimant’s causation argument was rejected by the court, despite it finding the claimant and her assertions, to be wholly credible.

Paragraph [47]: ‘I conclude that the claimant genuinely believes and has convinced herself that she would have opted for a suture repair, if she had been provided with all the relevant information. Accordingly, what she said to me in evidence accords with her honestly held belief. But it does not of course, automatically follow that what she now believes to be the case would in fact have been the position at the material time.’

Counsel for the claimant raised two arguments in closing:

  • that even if the court were to conclude that the claimant would not have opted for the alternative treatment in any event, she is entitled for damages for the shock of finding out some three year later that there would be some additional risk to her in pregnancy, and/or
  • that she should be awarded some form of ‘free-standing’ damages.

These arguments were rejected. The first one as having no legal basis. The second argument was dealt with in some detail by the court:

Paragraph [55]: ‘Montgomery is only of marginal relevance to the present case. There, the Supreme Court was considering the appropriate test for breach of duty where there has been a failure to give a proper warning or advice. Specifically, the Supreme Court decided that Bolam has no role in determining the standard of care which is required to be exercised by a doctor when advising a patient of the treatment options. The ratio can be extracted from the leading Judgments of Lord Kerr and Lord Reid at paragraph [87]:

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

As I read the speeches, the Supreme Court did not lend any support to the proposition that a mere failure to warn of risks, without more, gives rise to a free-standing claim in damages. It was pointed out that Chester v Afshar [2004] UKHL 41 similarly is not authority for the proposition that a claimant does not need to prove causation, in the conventional sense, as a result of failure to provide informed consent...’.

The net result was that the claimant lost in respect of the failure to advise on the surgical options for correction of the hernia. The only positive for the claimant was that she did get awarded £7,500 for the delay in diagnosis of the hernia, which was assessed at two months of culpable delay.

What are the practical implications of the judgment? What should practitioners be mindful of when advising in this area?

Without doubt informed consent is a live issue. If the treating medical team fail to secure informed consent they are more likely than not going to be found in breach of their duty of care to their patient. However, that alone will not mean that damages will flow. There must still be a causative element arising from that breach of duty.

In the recent case of Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356:

‘The defendant neurosurgeon advised the claimant to undergo an operation on her spine but failed to explain that, if performed without negligence, the procedure carried a small (1–2%) unavoidable risk of neurological damage leading to a disabling condition. The claimant agreed to the procedure on a Friday and the operation was performed on the following Monday.

She subsequently developed the disabling condition which left her partially paralysed, and sued the surgeon for negligence. In these circumstances, the claimant had needed to show that, if a relevant warning had been given, she would not have undergone the procedure. That finding was not made in Chester v Afshar.

The trial judge held that the defendant had not performed the operation negligently, but that he had negligently failed to warn the claimant of the risks of developing the disabling condition and that, if she had been aware of the risks, the claimant would have sought advice on alternatives to surgery and the operation would not have taken place when it did.

The judge held that there was a sufficient causal connection between the failure to warn of the inherent risks of the operation and the damage sustained by the claimant, and that the link was not broken by the possibility that the claimant might have consented to the surgery in the future. The Court of Appeal dismissed the defendant's appeal and he appealed to the House of Lords.

The interpretation of the evidence was that had she been warned she would either have delayed the surgery, or not had the surgery. As the disabling event occurred during the surgery that was performed, had the surgery been delayed on balance of probabilities she would not have been injured.

How does this case fit in with other developments in this area of the law? Do you have any predictions for future developments in this area?

Correia and to an extent Chester are cases that are very much determinable on their facts. They give useful guidance, but probably would not be cases where it would be wise to rely upon them as generic precedent, especially if causation could not be shown. If there is no causation, Chester, Montgomery, Correia and Diamond will all mean than damages will not be awarded.

There are however many cases where lack of informed consent should be considered. Examples would be a pregnant woman who is actively asking for a caesarean section but is counselled against it and delivers a child who sustains a birth injury, or a pregnant woman who tests positive for Group B Streptococcus, but is not informed of the implications, does not then receive the necessary intravenous antibiotics and delivers a stillborn baby.

It is a longstanding facet of clinical law that there may have been a breach of duty, but causation may not necessarily flow. The recent cases have not changed that.

 

Interviewed by Tracey Clarkson-Donnelly. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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