By Kate McKinlay
In the case of Anita Border v Lewisham and Greenwich NHS Trust [2015] EWCA Civ 8, recently heard by the Court of Appeal, a Senior House Officer in the Accident and Emergency Department commenced a treatment in the face of explicit protestation by the Claimant, and without discussing with her what her alternatives were.
The questions the Court of Appeal had to consider were
- Could consent be argued in the Court of Appeal when it wasn’t at first instance
- What factual findings if any, did the trial judge make as to consent and
- To what extent was the absence of consent relevant to the question of breach of duty in circumstances where the treatment itself was not negligent?
THE FACTS
The Claimant, then aged 64, was brought into A&E and specifically to the resuscitation room, following a fall and presenting with a suspected broken right humerus. A cannula into the arm in case of intra-venous injection becoming necessary is a normal initial treatment with patients presenting in these circumstances to Accident and Emergency. However since the right arm was probably broken and unsuitable for a cannula, the treating physician, an SHO named Dr Prenter, proposed to put the cannula into the left arm, again as would be normal practice. Unusually, in this instance he was told explicitly by the Claimant with reference to the left arm:- ‘you mustn’t cut that arm or I might get an oedema’. The Claimant had recently had a mammectomy and had been advised to avoid any cutting to that arm. Dr Prenter decided to put the cannula into her left arm in any event. The level to which he discussed this decision with her was disputed at first instance. In any event, as she predicted, the Claimant did go on to develop a permanent and fairly serious oedema in her left arm, the result of which is that she now suffers from a permanent and material level of disability in her left arm. She therefore sued the Defendant trust in negligence.
LEGAL FRAMEWORK
The well-established principals of medical negligence applied namely :-
- The standard of care is that of a reasonable doctor of the level and position of the doctor in question (a.k.a the Bolam test)
- The doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of doctors skilled in that branch of the profession, subject to the Bolitho exception, ie where the relevant body of opinion is shown not to be capable of withstanding logical analysis.
THE FIRST INSTANCE DECISION
At first instance the focus was on whether the above principles had been breached or not, ie did the doctor’s decision to insert a cannula accord with what a reasonable doctor of his level and position would have done. Though consent had formed part of the Claimant’s pleaded case, little significance was attached to the issue of consent. Indeed on two separate occasions, the trial judge invited both Counsel to correct his assumption that consent was not a big issue in the case. In both instances Counsel did not disavail him of this interpretation. Furthermore consent was not raised in skeleton submissions, nor closing arguments. The judge accordingly found that the doctor had acted reasonably and in accordance with a body of responsible doctors, and found in favour of the Defendant.
COURT OF APPEAL (Richards LJ, Tomlinson LJ, and Newey J)
The Claimant appealed. She contended that the trial judge, having made a factual finding as he did, that the Claimant did not give her consent to the procedure; ought then to have also gone on to consider whether or not the Defendant doctor was in breach of his duty by virtue of carrying out a procedure on the Claimant without obtaining her consent first.
Therefore on appeal unlike at first instance, the issue of consent was the central issue in the case. After deliberation the Court of Appeal allowed itself to consider this point, not fully heard at first instance, because of the fact that it appeared in the Claimant’s pleadings and it was therefore open to the appellate court to consider the Claimant’s this issue, irrespective of whether it was fully argued at first instance or not.
Having considered the trial judge’s findings as to consent, the Court was in no doubt that there was only one tenable reading of the judge’s conclusion on the issue of consent, namely that he found that Dr Prenter went ahead without the Claimant’s consent. Having made that finding, and having concluded that it was open to the appellate court to consider the issue of consent, it was perhaps inevitable that the Court of Appeal’s decision was that the Defendant was in breach of duty. The Court provided a valuable restatement of the law in relation to consent and medical treatment (even in the Accident and Emergency Dept where physicians must expect the worst) :-
“The duty to obtain the patient’s consent to treatment is a fundamental tenet of medical practice and is inherent in the case-law concerning the duty to take reasonable steps to warn a patient of the risk of treatment so that the patient can make an informed decision about whether to consent to it”.
In this case the Court of Appeal also went onto find in the Claimant’s favour on the issue of causation ie if the Claimant had been given a choice she would have refused the treatment such the Defendant was liable for her injury and its consequences.
PRACTICE NOTES
In every clinical negligence case, the legal representative must always be alive to the issue of consent, whether or not the client has raised it. Ideally the capacitous patient will be informed that they have a choice about whether to agree to every proposed procedure and to be enlightened as to the alternatives. Physicians are no more entitled to make decisions for their capacitous patients than their lawyers are. If you can identify that consent wasn’t sought and given, and you are confident you can prove it, then a breach is established, irrespective of what happened next. Causation will not of course necessarily follow but the Claimant will be one step nearer.
Zenith PI: PERSONAL INJURY LITIGATION IN PRACTICE 
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