Richard Paige discusses: Consent and Causation in Clinical Negligence Cases

Since the seminal decision of the Supreme Court of the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 there have been a number of attempts to push the boundaries in clinical negligence consent cases. One such example last year was Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356, in which it was argued by the Claimant that she had only consented to a properly performed operation and had she been warned of the risks of an operation that was not properly performed, she would not have consented. Such an argument was rejected by the Court of Appeal.

Another attempt to expand claims based upon lack of informed consent was made in Duce v Worcester Acute Hospitals NHS Trust [2018] EWCA Civ 1307.

The Claimant developed chronic post-surgical pain (‘CPSP’) following a total abdominal hysterectomy (‘TAH’). It was accepted that she was not warned of the risk of CPSP prior to her operation. She alleged that had she been so warned she would not have proceeded with the operation, but would have considered alternative treatments. Initially she presented her case on the basis that she should have been warned of CPSP, but was not supported by her own expert, who advised that the risk of CPSP was not known at the time of her operation. At this point, and subsequently during the trial, the Claimant’s claim ‘evolved’ (which appears to be a common feature in consent cases) to allege that there was a failure to provide a sufficient warning of the risk of post-operative pain.

Ultimately the claim failed at first instance and the Claimant appealed on three grounds:

1. The judge failed to apply the test in Montgomery, particularly in relation to whether the risk was “material”;
2. The judge erred in failing to apply the test of causation set out in Chester v Afshar [2004] UKHL 41;
3. The judge erred in finding that the Claimant would have proceeded with the operation even if warned of CPSP.

The first and third grounds of appeal were dispensed with quite simply. On an analysis of the judgment it was held that the judge had plainly applied Montgomery; and on the evidence the judge was entirely justified in finding that the Claimant would have proceeded with the operation even if so warned.

The interesting aspect of the appeal relates to the second ground of appeal and the arguments advanced on behalf of the Claimant in support of it.

The Claimant submitted that it was not necessary for her to prove that she would not have undergone the operation on that day in order for her claim to succeed. The Claimant relied upon a passage from the judgment of Lord Hope in Chester (at paragraph 87) to argue that there was an alternative pathway to establishing causation in consent cases. It was submitted that in such cases there was a three stage test which, if satisfied, established causation:

1. The injury was intimately involved with the duty to warn.
2. The duty was owed by the doctor who performed the surgery to which the patient had consented.
3. The injury was the product of the very risk that the patient should have been warned about when they gave their consent.

It will be observed that there is no requirement within this three stage test for the Claimant to prove that she would have done anything differently had she been so warned. It was observed that such a test would be free-standing and “amounts to a wholesale disapplication of conventional causation principles in consent cases.”

Understandably, such an argument was rejected. Hamblen LJ analysed the judgments of Lord Hope, Lord Steyn and Lord Walker in Chester, all of which made clear that it was a necessary element of proving causation that the Claimant would have taken different action had the appropriate warning been given. He said, “When paragraphs [86]-[87] of Lord Hope’s judgment are considered in context in my judgment it is clear that he is not setting out a free-standing test, as the [Claimant] contends, but rather the circumstances which justify the normal approach to causation being modified. That modification was to treat a “but for” cause that was not an effective cause as a sufficient cause in law in the “unusual” circumstances of the case.”

He went on to say “I accordingly agree with the [Defendant] that the majority decision in Chester does not negate the requirement for a claimant to demonstrate a “but for” causative effect of the breach of duty, as that requirement was interpreted by the majority, and specifically that the operation would have not taken place when it did.”

He also endorsed the view expressed in Correia that if a Claimant sought to establish causation on the exceptional principle established in Chester s/he had to plead and prove that if warned of the risk they would have deferred the operation.

Accordingly, it is clear that in cases where a Claimant is alleging that they have suffered an injury as a result of an inherent risk of which they should have been but were not warned then it is necessary for them to plead and then to prove that:

1. Had they been warned they would have taken a different course of action; and
2. Had they taken that alternative course, the outcome would, on the balance of probabilities, have been different.

As an interesting postscript, it was noted that if the Claimant’s appeal had been successful the Defendant intended to argue in the Supreme Court that Chester had been wrongly decided. Presumably this would have been on the basis that there was no justification for a departure from the conventional “but for” test.

Richard Paige practices in clinical negligence and undertakes work for Claimants and Defendants. He has a particular interest in issues relating to consent to treatment.

Contact Richard’s clerks

Francine Kirk on 0113 202 8605

Talia Webster on 0113 213 5207

Jordan Millican on 0113 213 5250