Can a failure to obtain informed consent to medical treatment amount to a distinct cause of action and give rise to a free-standing award of damages?
Articles | Tue 25th Jul, 2017
In a word, no. The Court of Appeal has roundly rejected the suggestion that a distinct cause of action should be recognised in cases where a patient’s personal autonomy has been wrongfully invaded due to the failure to obtain informed consent. The Court also refused to hold that a free-standing award of damages should be made in respect of the invasion of personal autonomy.
The full judgment in the case of Gabriele Shaw (Personal Representative of the Estate of William Ewan (deceased)) v (1) Jan Kovac & (2) University Hospitals of Leicester NHS Trust  EWCA Civ 1028 can be found here.
The claimant was the personal representative of her late father, Mr Ewan, who had died at the age of 86 following an operation conducted by the first defendant at the second defendant’s hospital. Mr Ewan underwent a relatively new form of surgical treatment for aortic valve stenosis and sadly did not survive the operation.
The appellant brought a claim primarily based upon the first defendant’s failure to obtain properly informed consent and to advise as to the risks involved in the new procedure. The second defendant conceded that proper informed consent had not been obtained and that Mr Ewan would not have had the operation had he been appropriately advised of the risks.
The claimant’s schedule of loss included a claim for general damages, comprising damages for pain, suffering and loss of amenity and “damages for loss of life of William Ewan without having given informed consent…”. In her updated schedule of loss, the claimant stated that Mr Ewan’s death “arose in very special circumstances whereby his informed consent was not obtained to a very high risk procedure still at clinical trial stage…”.
The first instance decision
HHJ Platts, considering the pleaded “damages for loss of life”, rejected an argument that the asserted gravity of the negligence was relevant to an award of damages under this head. He also held that the claim was barred by section 1 of the Administration of Justice Act 1982 which prohibits recovery for loss of expectation of life in a personal injury claim.
In submissions, the claimant’s representative attempted to re-frame the claim relying upon Montgomery v Lanarkshire Health Board and Chester v Afshar. It was argued that a patient had an autonomous right to choose what treatment to accept; and that a denial of that right, occasioned by negligent failure to provide relevant information and leading to the loss of the opportunity to give or refuse informed consent, in itself created a right to damages independent of other loss being claimed or proved; and that therefore sounded separately in damages. The judge concluded that neither of the authorities referred to had the effect for which the claimant was arguing. He held that there was no free-standing actionable claim for damages arising from the failure to obtain informed consent. Overall, the reality was, he concluded, that this was a claim for personal injuries and a claim for loss of expectation of life, which had been removed by s. 1 of the 1982 Act.
On appeal, the claimant disclaimed her argument that the invasion of Mr Ewan’s personal autonomy gave rise to a separate cause of action. Nevertheless, Davis LJ, with whom Underhill LJ and Burnett LJ agreed, strongly indicated that such an argument would be doomed to fail. His lordship referred to the joint judgments of Lord Kerr and Lord Reed in Montgomery at paragraph 82, where they state that the duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks inherent in the proposed treatment was to be understood “within the traditional framework of negligence”.
The claimant’s case on appeal was primarily framed as an argument that a substantial free-standing award of compensatory damages should be granted in respect of the invasion of Mr Ewan’s personal autonomy. The claimant contended for an amount of £50,000. It was accepted that such a head of loss has never before been expressly awarded in previous reported authority. The claimant again sought to rely upon the decisions in Chester and Montgomery. The decision in Chester was distinguished from the present case since it concerned the issue of causation, which was not of relevance to this appeal, and it was noted by his lordship that there is nothing in the majority decision in Chester which supports the availability of a free-standing award of the kind proposed by the claimant. The claimant sought to rely upon paragraph 87 of Lord Hope’s judgment in Chester:
“To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable. 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. On policy grounds therefore I would hold that the test of causation is satisfied in this case.“
Davis LJ determined that Lord Hope’s “remarks are there to explain, in the particular circumstances of that particular case, why he considered that orthodox principles of causation should be modified in that case. Those considerations do not apply here, where causation and loss were on any view made out and a right to damages in consequence also made out.”
The case of Montgomery, which established that the Bolam test was not the applicable standard expected of a doctor obtaining a patient’s consent to a medical procedure, was also not considered to be relevant to the present facts. While it was accepted that in Montgomery there is an emphasis on the right of a patient not to be subjected to treatment interfering with her bodily integrity without her informed consent, this merely explained why the Bolam test was not applicable.
Davis LJ went on to consider what it is that the claimant’s proposed award is intended to compensate, over and above an award for pain, suffering and loss of amenity. At paragraph 69 he writes:
“[the claimant] would say that it is the unlawful invasion of the patient’s personal rights and the loss of personal autonomy involved. It is true that those rights can nowadays perhaps be described, in the climate of a greater appreciation generally of human rights and fundamental rights, in rather more graphic and emphatic terms than would have been used in days gone by. Nevertheless the very existence of such rights – in whatever language one actually describes them – has always been the foundation of and rationale for the existence of a duty of care on doctors to provide proper information. Once that is appreciated then one can see that the claimed additional award of compensatory damage as sought in the present case is in truth unnecessary and unjustified. The appropriate damages to be awarded for the purpose are for pain, suffering and loss of amenity in the usual way, as reflecting the requisite compensation.
Moreover, 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 (not, I add, the present case, on the facts) then that can itself be reflected in the award of general damages…
Further, 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… It is, however, impossible, in my opinion, to see the justification for such an outcome.”
The claimant finally contended that in the absence of a compensatory award, the court should award a conventional sum (i.e. a set amount) for the infringement of personal autonomy. The case of Rees v Darlington Memorial Hospital NHS Trust  UKHL 52, in which the claimant was awarded a conventional award of £15,000 following the birth of her child after a negligently performed sterilisation procedure, was cited in support. Davis LJ rejected this suggestion. His lordship considered that the facts of Rees were “exceptional and a long way from the present” and noted that three of the seven judges dissented. This argument was also rejected as a matter of principle in recognition of the risk of opening the “floodgates”, with Davis LJ stating at paragraph 81:
“Moreover, to grant such an additional award as a conventional sum in the present case would give rise to other, disconcerting, implications. If such an award is to be made in this kind of case, is it to be available in other kinds of case of infringement of personal autonomy: for example, assault? Would such awards by extension be available for other torts generally (given that most torts can be said to involve a “loss of autonomy”)? Even if somehow proposed to be confined to the present kind of case – negligent failure on the part of a doctor to give proper information to a patient – then, even there, there are, as Mr Hutton pointed out, very many medical situations where the duty of care to provide proper information (a duty itself based on the patient’s right of choice) arises: it is not, for instance, confined solely to cases of surgeons about to embark upon major operations. Further, reflecting what I have said earlier in this judgment, the logic of this argument would tend to a conclusion that such a conventional award should be available even where the medical procedure was an entire success; or where it was shown that the patient would, if properly informed, still have consented; or where the medical procedure was separately botched with consequences unrelated to the lack of informed consent; and so on.”
The appeal was accordingly dismissed and the claimant’s damages remained the first instance award for pain, suffering and loss of amenity of £5,500.
It is clear throughout this judgment that the court was unimpressed by the suggestion that the common law should recognise a distinct cause of action or a free-standing head of loss in respect of the lack of informed consent. This is perhaps unsurprising given that this would effectively have compensated Mr Ewan for a loss of expectation of life and thereby circumvented section 1 of the Administration of Justice Act 1982.