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Richard Paige

Rights without Recourse? – Richard Paige discusses

In the case of Shaw v Kovac & others [2017] EWCA Civ 1028 the Court of Appeal considered the question of whether a claimant could recover damages for “infringement of the [claimant’s] right of autonomy” as a free-standing head of loss, when they had been treated in the absence of informed consent.

Facts

The Claimant was the executor of the estate of Mr Ewan. Mr Ewan died at the age of 86 immediately following an operation for a trans-aortic valve implant. Mr Ewan did not regain consciousness between the operation and his death. The surgeon and Trust both admitted that Mr Ewan had not been properly informed of the risks of what was an experimental procedure and that had he been properly informed he would not have undergone the operation. The Claimant alleged that Mr Ewan would have survived for a further 5 years without the operation.

First instance

Before HHJ Platts at first instance the Claimant was awarded damages including interest of £15,591.83, of which £5,500 was made up of general damages for pain, suffering and loss of amenity. The general damages award was a reflection of (a) preparatory investigations (including an angiogram); (b) preparations for and the operation itself and its aftermath; and (c) the anxiety caused by the impending operation, none of which Mr Ewan would have suffered had he not consented to the operation.

The Claimant’s Schedule of Loss included a claim for “damages for loss of life of William Ewan without having given informed consent”. This head of loss was disallowed as being a claim for loss of expectation of life, and thus fell foul of s.1 of the Administration of Justice Act 1982. However, in closing submissions before the trial judge it was argued that the failure to obtain informed consent created a right to damages independent of any other loss being claimed or proved, i.e. was a freestanding claim, which was neither a claim for personal injury nor for loss of expectation of life. The judge refused to make such an award and on appeal it was argued that the judge “should have acceded to the claimant’s arguments and should have made an additional award of damages to reflect the wrongful invasion of Mr Ewan’s personal autonomy”.

Appeal

The appeal was rejected. The leading judgment was given by Davis LJ who considered and dismissed the following arguments advanced on behalf of the Claimant:

  1. The wrongful invasion of Mr Ewan’s personal autonomy represented a distinct cause of action from any claim in negligence. Such an argument ran contrary to previous authorities that, in the absence of fraud or bad faith, claims based upon a lack of informed consent were actionable in negligence;
  2. Recent authorities, and especially Chester v Afsar [2004] UKHL 41 and Montgomery v Lanakshire Health Board [2015] UKSC 11 either created or lent support for the proposition that a claimant was entitled to a freestanding award for infringement of the right to personal autonomy. These cases did not expressly provide for such an award and were distinguished on the basis that Chester concerned causation, which was conceded in the present case and Montgomery concerned the legal test to be applied when considering informed consent, which was also conceded in the present case;
  3. The Claimant should be entitled to a “conventional award” in much the same way as a conventional award was made in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, which was not designed to be compensatory, but a recognition of a right which had been infringed. Again, Rees was distinguished from the present case with Davis LJ suggesting that the award in Rees had been compensatory (despite Lord Bingham having expressly stated that it was not).

Davis LJ also questioned whether the Claimant was seeking a vindicatory award and held that if she were such an award would be prohibited by R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12.

Davis LJ raised concerns about the manner in which a freestanding award for infringement of personal autonomy might be quantified and the potential opening of the floodgates should such an award be made.

Wrong case?

Shaw raises a very important question about an individual’s rights to personal autonomy, the extent of those rights and how the Courts can and should protect those rights. It is perhaps therefore a shame that it was this particular case that found its way to the Court of Appeal to consider these issues. There is an undertone running through the judgment that the Claimant’s case was ill-prepared and the arguments advanced on her behalf were not properly thought out:

  1. The Claimant had pleaded her loss on the basis of loss of expectation of life, which clearly was irrecoverable. It was observed that at first instance Claimant’s Counsel “had sought to put the claimed loss rather differently from that outlined in the pleaded case and Schedule of Loss.”
  2. Davis LJ specifically commented that he found “the arguments advanced on behalf of the appellant to be somewhat unfocused” and that “they shifted during the course of argument”;
  3. The initial argument that the invasion of personal autonomy created a freestanding cause of action was fatally flawed because “such a cause of action has never been pleaded”;
  4. In relation to the quantification of such a claim it was observed that Claimant’s Counsel “could identify no principled approach which the courts assessing damages might then adopt”;
  5. When arguing for a conventional rather than compensatory award it was again noted that “Such an approach had not been put forward in the Grounds of Appeal or written argument”.

In contrast, of the Defendant’s Counsel it was said “as Mr Hutton pointed out in the course of his excellent submissions.”

Criticisms

Davis LJ stated that “A claim in negligence of this kind requires proof of damage as a necessary part of the cause of action: it is not one of those torts which is actionable per se.” He observed that damage had been proven by the Claimant and an award of damages had been made as a result.

However, the award made was to compensate the Claimant for the losses that she had suffered flowing from the infringement of Mr Ewan’s personal autonomy. She did not receive damages for the infringement of the personal autonomy. The amount of damages awarded would have been exactly the same had informed consent been obtained but the operation then performed negligently (with the same ultimate outcome), i.e. the infringement of the right (to personal autonomy) did not in itself sound in damages.

The recent cases of Chester and Montgomery have established beyond any doubt that patients have the right to make informed choices and that if consent is not informed then that right to personal autonomy is infringed. Indeed, Davis LJ stated that “the very existence of such rights… has always been the foundation of and rationale for the existence of a duty of care on doctors to provide proper information.”

In Chester Lord Hope had stated “The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence.” It is suggested that the judgment in Shaw fails to follow this principle, and this is most clearly illustrated when Davis LJ noted that “if the claim to an additional award is well-founded it must be the case that an award would also in principle be recoverable, in the context of lack of informed consent, even if the operation performed on a patient was a complete success” and “damages would be payable… even if it were established that the patient still would have consented if he had been given the proper information. It is, however, impossible, in my opinion, to see the justification for such an outcome.”

Although these latter points were raised as arguments against such an award, I would suggest that they in fact demonstrate the failings in the judgment. A patient’s right to make an informed choice and their right to personal autonomy are not dependent upon the ultimate outcome. Those rights are infringed as soon as the procedure for which consent is required is performed. Whether the risks associated with that procedure (of which the patient has not been informed) materialise is immaterial to the infringement of those rights. Similarly, whether or not the patient would have consented is immaterial. By analogy, it would be no defence to charge of assault if the victim were to say that he would have allowed the perpetrator to punch him had he but asked.

Of course, if the risks do not materialise or the patient would have consented in any event, then no damage can be said to have flowed from the breach of duty, but it still remains the case that those rights have been infringed and, if the judgment of Lord Hope in Chester is to be applied then a remedy should be provided. If this means that the law should recognise a new cause of action then the law should do this.

Nor, in my opinion, is the argument about the difficulties of quantifying the claim any grounds for refusing such an award. Many awards made by the Courts are arbitrary; indeed all personal injury awards for pain, suffering and loss of amenity are arbitrary. Whilst the awards do increase with the severity of the injury, in truth the loss of an arm, for example, does not have a monetary value. Even clearer is the statutory bereavement award. Often ridiculed for its paltry amount, the same sum is arbitrarily awarded for the death of a much loved mother with multiple dependents as is awarded for the death of universally loathed loner with one dependent. It seems perverse that in the latter case the single dependent will receive a higher sum than the many dependents in the former case. The Courts have even illustrated a willingness to allow such novel awards for arbitrary sums in appropriate cases, as occurred in Rees.

It is unfortunate that such an important issue was presented to the Court of Appeal in the manner in which it was. Counsel for both parties accepted that no cases could be identified in which a distinct award was made for infringement of personal autonomy. However, in the case of Gulati v MGN Ltd [2015] EWHC 1482 (Ch) (which was a phone hacking case) Mann J ruled that “While the law is used to awarding damages for injured feelings, there is no reason in principle, in my view, why it should not also make an award to reflect infringements of the right itself, if the situation warrants it.  The fact that the loss is not scientifically calculable is no more a bar to recovering damages for “loss of personal autonomy” or damage to standing than it is to a damages for distress.  If one has lost “the right to control the dissemination of information about one’s private life” then I fail to see why that, of itself, should not attract a degree of compensation, in an appropriate case”. This was itself derived from the decision in Campbell MGN Ltd [2004] 2 AC 457 in which Lords Nicholls stated that “Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people.” For my part, I can see no reason why, in the context of personal autonomy, the right to control the dissemination of information should be considered any differently to the right to make informed choices.

Furthermore, no reference was made by either Counsel to any reported cases in jurisdictions other than our own, which commonly occurs when no local case law of applicability can be identified.

Public policy

Towards the end of his judgment Davis LJ did state that even if the Court of Appeal could make such an award “I can see strong reasons of policy for not doing so.” Undoubtedly, in limited classes of cases the Courts will refuse to make awards which would ordinarily be made, on grounds of public policy. Wrongful birth cases is one such example. Davis LJ noted of Rees (one such wrongful birth case) that “As Mr Hutton pointed out, the claimant – as in McFarlane – was in effect being deprived on policy grounds of damages to which otherwise, on a conventional “but for” approach, she might well have been entitled.”

Undoubtedly, there are strong public policy grounds for denying a patient damages for the infringement of their rights to personal autonomy without proof of actual damage. Reference was made in the judgment to “claims farming” and it can easily be envisaged that patients that have undergone successful procedures could be encouraged to put forward spurious claims on the basis that they were not properly informed of all the material risks. However, if that is to be the case, then the Courts should recognise that patients do have such a right which, if infringed, would have entitled them to damages, but for policy reasons.

Footnote

As a final footnote, Davis LJ did leave open the door, albeit only a crack, to such a claim succeeding in the future (provided it was properly formulated), when he stated that “if, in any particular case, an individual’s suffering is increased by his or her knowing that his or her “personal autonomy” has been invaded through want of informed consent… then that can itself be reflected in the award of general damages.” It will be interesting to see in the future whether mere “suffering” will be sufficient or whether the conventional requirement of a physical injury or recognisable psychiatric disorder will be a prerequisite. However, given that most medical procedures do involve some form of physical intervention (such as cutting with a scalpel) could this be argued to be a physical injury upon which an individual’s suffering could then be pinned?

Richard Paige specialises in clinical negligence and acts on behalf of 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

Jordan Millican on 0113 213 5207