Surgical consent: Chester, Montgomery & Duce.

Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 (“Duce”)

This blog looks at the recent Court of Appeal decision in relation to cases of surgical consent (“Duce”) and analyses the use in this case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 (“Montgomery”)  and Chester v Afshar [2004] UKHL 41 (“Chester”).

Please note, this blog is by no means intended to be legal guidance but rather my comment on how I perceive the case law in relation to surgical consent.

Background

The Appellant had suffered from painful and heavy periods and also from around January 2006 suffered from lower back pain.  At the end of 2007 she sought medical advice in respect of her symptoms and was seen in clinic to discuss the possibility of undergoing a total abdominal hysterectomy (“TAH”).

She was seen by Dr Stanley in February 2008, whose notes explained he had advised a TAH was a “major operation with associated risks”.  A letter in the same month from Dr Stanley to the Consultant Gynaecologist requested he review the option of a TAH with the Appellant. He made the Consultant Gynaecologist aware that he had recommended the Appellant try less invasive methods.

A further review with the professional the Appellant had first seen in clinic saw the Appellant confirm she would not consider other treatment options, as she did not want to go through with them for them then to fail.

The Appellant’s original operation was cancelled, and she did not receive the new appointment letter, meaning she only learnt she was having surgery that morning. Once at the hospital, she met with the surgeon Mr Elneil, and the Registrar Mrs Singh. Mrs Singh dealt with consent.

Following the surgery (which was performed non-negligently) it became apparent the Appellant had sustained nerve damage and had developed what is now known as Chronic Post-Surgical Pain (“CPSP”).

Consent

The Appellant noted that she felt the staff were in a hurry and she felt pressure to complete the consent form promptly.

It was accepted in the first trial that there had been a discussion between the Appellant and Mrs Singh where Mrs Singh advised the existing pain may not be relieved. It was accepted Mrs Singh would have warned of post-operative pain. Crucially, Mrs Singh accepted she would not have said there was a risk of the Appellant developing chronic pain or chronic post-surgical pain.

Trial at first instance

There were amendments to the particulars of claim throughout the case, but these centred on a duty to warn of chronic pain, neuropathic pain & CPSP.

Breach of Duty

The two gynaecology experts in the case agreed that CPSP was not common knowledge amongst gynaecologists in 2008 and it would not normally be mentioned in taking consent for a hysterectomy.

The Judge at first instance found in relation to breach that it was agreed there was no duty to warn of CPSP and on the basis of accepting the evidence of the respondent’s expert, he found that there was no duty to warn a patient of the risk of chronic or neuropathic or nerve pain, whether long or short term.

Causation

In relation to causation, he found that had she been warned of nerve pain and on the balance of probabilities, it was more likely than not that the patient would have proceeded with the operation on the day.

Grounds of appeal

(1)   Breach of duty

The grounds of appeal around breach of duty centred on the Judge failing to apply the test set out in Montgomery and instead applying the old law, and therefore relying on the respondent’s expert, as though applying Sidaway[1]/Bolam.[2]

Montgomery

In Montgomery, the Supreme Court set out the nature of the duty in relation to consent.

As set out in paragraph 87 of Montgomery, the nature of the duty in these cases is “a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.”

Paragraph 33 of Duce set out from the previous cases that the test is twofold:

(1)   Did the medical professionals know about the risk – were the risks associated known or should have been known to the medical professional in question?

(2)   Were they material risks?

 

“Material Risks”

In relation to whether they risks are material, that decision can not be made by expert evidence alone.

As set out in pp889-890 of Sidaway the test of 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 be reasonably aware that the particular patient would be likely to attach significance to it.”

Montgomery set out the factors to take into account, which include:

  • The odds of the risk materialising;
  • The nature of the risk;
  • The effect of the occurrence of the risk on the patient;
  • The importance to the patient of the benefits sought to be achieved by the treatment;
  • The alternatives available and the risks of these.

Findings on breach of duty

The Court of Appeal agreed with Counsel for the respondent in that the reason the Judge did not address the issue of materiality is that the case fell at the first hurdle, namely of whether the medical professionals knew/ought to have known about the risk. The Judge had found that in 2008 there wasn’t sufficient understanding amongst gynaecologists about the risk of this specific pain and as noted “a clinician is not required to warn of a risk of which he cannot reasonably be taken to be aware.”[3]

Ground 1 of the appeal, in relation to breach of duty, was therefore rejected.

(1)   Causation

The grounds of appeal in relation to causation alleged the Judge had failed to apply the test of causation set out in Chester and if that test had been applied, causation would have succeeded.

Chester v Afshar

The circumstances of Chester are very particular.

In Chester the Claimant had suffered from back pain for years & at times she had difficulty mobilising and with bladder control.

She was advised to have surgery but the surgery did carry an inherent 1-2% risk that the Claimant would develop Cauda Equina syndrome. The evidence showed that the risk was random, irrespective of care are skill.

Breach was satisfied in this case in that the surgeon should have warned her about the risk & failed to do so.

However, the matter of causation was interesting. At trial, it was established that had the Claimant been warned, she would not have had the surgery on the same day, as she would have gone to seek further opinion. It was not alleged she would not have had surgery at all.

It was noted in paragraph 81 of Chester that “a solution to this problem cannot be based on conventional causation principles”.

The Appellant submitted that Chester removed the need for the traditional causation principle and the test which should be applied for causation was that set out in paragraph 85 of Chester, namely that:

(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.

However, the Court of Appeal in Duce did not agree that causation had been bypassed and it does appear that factual causation was still satisfied in Chester. Effectively, if the surgeon had warned of the risk on the day, then the patient would not have had the operation on the day. When the operation took place on a later date, the risk was so small & random, it was unlikely to have occurred on that later date.

As stated at paragraph 69 in Duce: “Chester does not negate the requirement for a claimant to demonstrate a ‘but for’ causative effective of the breach of duty, as that requirement was interpreted by the majority, and specifically that the operation would not have taken place when it did.”.

However, as per Lord Hope at paragraph 73 of Chester and quoted in Duce:

It is plain that the “but for test” is not in itself a sufficient test of causation.”

As set out by Lord Justice Leggatt:  “In law as in everyday life A’s wrongful act is not normally regarded as having caused B’s injury if the act made no difference to the probability of the injury occurring.”[4] Seemingly therefore, legal causation was not traditionally satisfied, because the probability of the injury occurring, even if the patient had surgery on a different day, would have been the same.

They also relied on the close link between the injury & the duty to warn. Lord Justice Leggatt noted that “the majority in Chester justified departure from ordinary principles of causation on policy grounds. For Lord Steyn, the critical consideration was the need to vindicate the patient’s right to make an informed choice.”  [5]

Although the traditional test for causation may have been modified, they did not bypass factual causation, as that was still established.  The modification “was to treat a “but for” clause that was not an effective cause as a sufficient cause of law in the unusual circumstances of the case.” [6]

Ultimately, at both first instance and at the Court of Appeal, the finding in Duce was that from the evidence provided (including that the patient was urged to try less invasive alternatives and had been aware that surgery carried substantial risks) the Appellant would have, even if she had been warned of the specific risk, proceeded with the surgery on that day.

To sum up:

(1)   The appeal of the breach of duty decision failed, because it the Judge at first instance had not needed to address materiality. This was because the claim failed on the first part of the two-fold test, namely that it was accepted a clinician was not required to warn of a risk which he/she wasn’t aware of;

(2)   The appeal to causation failed, because the finding was ultimately the Appellant, even if she had been advised of the specific risks, would have proceeded to have surgery as she did.

In any event, the principles of Chester didn’t apply in this case, because the evidence did not suggest that the Appellant would have deferred the operation.

The Court of Appeal also emphasised that Chester can only be applied in very specific circumstances and in relation to pleadings, cited Correia v University Hospital of North Staffordshire NHS Trust which notedif the exceptional principle of causation established by Chester is to be relied upon it is necessary to plead and prove that, if warned of the risk, the claimant would have deferred the operation.[7]

It is of interest to note that Counsel for the respondent reserved the right to argue that Chester was wrongly decided, if the case were to escalate to the Supreme Court.

It is clear to see that consent cases haven’t taken the simplest path in legal cases thus far, and indeed it seems the rationale of Chester may be argued in the Supreme Court in future.

 

[1] Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871

[2]Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

[3] Paragraph 87, Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307

[4] Paragraph 84, Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307

[5] Paragraph 87, Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307

[6] Paragraph 66, Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307

[7] Paragraph 28, Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356