This article originally appeared in Issue 1.
Three recent consent cases illustrate the critical importance of both limbs of an informed consent post-Montgomery – what advice should have been given, and what, as a matter of causation, a patient would do if given appropriate advice.
The Claimant’s wife died as a result of sepsis following an emergency Caesarean section.
With regards to breach, the Claimant alleged that there had always been a high risk that induction would be unsuccessful, and that labour would result in an urgent C-section. His wife should accordingly have been warned of the risk and offered a C-section at the outset, and had she been so warned she would have elected to go straight to a C-section.
In respect of causation, the Claimant alleged that as most C-sections do not result in infection, then in reliance on Chester v Afshar  UKHL 41 it was sufficient to establish that, had the C-section taken place at a different time to when it actually did, then infection would probably have been avoided, even if the risk of infection was unaltered by the timing of the operation.
Stewart J gave a concise and helpful summary of the relevant case law concerning both the relevant test for breach of duty in clinical negligence cases; the factors that should be taken into consideration when assessing what weight should be given to an expert’s opinion as to whether particular treatment was reasonable; as well as Chester v Afsharitself.
He made a number of telling criticisms of the reliability of the Claimant’s expert. This included that he had not been in regular clinical practice since 2007; that he had not looked at the pleadings or witness statements either at all or sufficiently; that he had taken no account of the fact that his own hospital had the highest elective C-section rate in the country; that he had commented on the factual question as to what the deceased would have in fact chosen to do if given the option; and “appeared on a number of occasions to be unable to recognise a range of obstetric opinion extending beyond his own.”
Having considered the evidence of the consultant who had treated the deceased (which was entirely based on notes that were so brief he accepted they amounted to shorthand) and also on his ‘standard practice’, Stewart J concluded that he had not communicated to the deceased that she was at a higher than average risk of ending up with a C-section in any event, and had not, as he ought to have done, offered an elective C-section. That represented a breach of duty. However, Stewart J found that, even if offered it, the deceased would not have chosen to have had an elective C-section. There was therefore no causation between the breach and the fatal infection that followed the emergency C-section that became necessary in the course of labour.
The judgment is worth reading both as a distillation of the key principles in clinical negligence cases, but more usefully as a demonstration of the pitfalls of choosing the wrong expert.
The Defendant agreed to see the Claimant privately and did so without charge as a favour to the Claimant’s husband who was a recently retired colleague of the Defendant.
The Claimant was advised by the Defendant to take Dopamine agonist medication as treatment for Parkinson’s disease. She later developed psychiatric side effects, including an impulse control disorder (ICD) and eventually psychosis.
The Claimant claimed that she had not been warned of the risk of impulse control disorder. She accepted that an appropriate warning would not have deterred her from taking the medication initially but contended that, properly advised, she would have ceased taking it far earlier and would have avoided the serious effects that developed.
Yip J set out the relevant legal principles: first, that a specialist is required to “exercise the ordinary skill of his specialty“: here the standard of care to be expected of the Defendant was that of a consultant neurologist with a subspecialty in movement disorders including Parkinson’s disease. Secondly, that the test in respect of consent was whether the patient had been made aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The risks were a matter falling within the expertise of medical professionals, but whether the patient should have been told about such risks was by reference to whether they were material. That was a matter for the court to determine without reference to the Bolam test and was not something that could be determined by reference to expert evidence alone. With respect to causation, the Claimant had to establish that, if she had been given the appropriate warning/advice she would have come off or reduced the dopamine agonist medication earlier, thereby reducing the severity and/or duration of the side effects.
Yip J, when considering the relative expertise of the two experts, noted that the appropriate standard of care was that of a consultant neurologist with a sub-specialism in movement disorders, which the Claimant’s expert was, but the Defendant’s expert was not.
She held that the risk of behavioural changes should have been discussed with the Claimant, and that: “In this case, I am satisfied that the Claimant, an intelligent woman, and her neurologist husband would have asked for further details and would have learnt that the sort of behavioural problems the drug might produce included impulsive behaviour.” The risk of developing compulsive behaviour was a material risk, and accordingly the Defendant had been in breach of his duty to the Claimant not to have discussed it. Further, when symptoms of ICD emerged, he should have clearly explained that taking an alternative medication instead was likely to abolish symptoms of ICD while still providing good control of the symptoms of Parkinson’s disease.
The Claimant did not argue that had the risks been appropriately discussed she would not have undergone Dopamine agonist medication treatment, but solely that a warning given at that stage would have made her more alert to ICD behaviours as they became manifest in 2010. Yip J held that the Claimant was aware that other medication was available to control her Parkinson’s symptoms and that it was the specific medication that she was taking that had caused her ICD symptoms. She held that even with additional information about alternative medication, the Claimant would still have followed the Defendant’s advice to continue with her existing medication until October 2011. However, after that point, with appropriate advice, the Claimant would have agreed to her medication being changed and would have recovered from her ICD within a short time. She would not therefore have gone on to develop psychosis.
This case is another illustration of the importance of choosing an expert who has the appropriate specialist expertise. Further, it demonstrates that even if there has been a failure to advise or gain informed consent (which is arguably a significantly easier hurdle for claimants to surmount post-Montgomery), there is still a critical requirement to establish what causal consequences flow from the identified breach.
The Claimant alleged that he had not given informed consent to an elective vasectomy as he had not been given adequate information about the risk of chronic testicular pain. He had been given an advisory booklet which stated that “there is a small possibility of post-vasectomy pain, which can be chronic.” Stewart J cited Simon LJ’s judgment in Webster v BurtonHospitals NHS Foundation Trust  EWCA Civ 62 as authority for the core principles from Montgomery being:
“i) a change of approach as to the nature of the doctor and patient relationship;
ii) the extent of the patient’s right to information;
iii) whether a risk is material cannot be reduced to percentages;
iv) the importance of dialogue between patient and doctor as part of the doctor’s advisory role;
v) the Bolam approach is no longer appropriate in cases of informed consent.”
With respect to the final principle, he also cited Hamblen LJ in Duce v Worcester Acute Hospitals NHS Trust  EWCA Civ 1307 to the effect that it was a matter for expert medical evidence as to what risks associated with an operation were or should have been known to the medical professional in question, but that it was a matter for the court as to whether the patient should have been told about such risks by reference to whether they were material, with this issue not being the subject of the Bolam test.
Stewart J set out the evidence of the Claimant and his wife as to what advice he had been given orally, and in the form of information leaflets, prior to the procedure. He commented that, while both the Claimant and his wife and also the treating GP had been honest, “honesty does not necessarily equate to reliability, especially when people are trying to recall facts through the prism of later events.”
Stewart J noted that the issue was not whether no warning had been given of a material risk, namely that of chronic pain, but whether the warning given was adequate. The Claimant argued that he needed to have been given information that gave a proper indication of the magnitude of the risk, i.e. the percentage chances of it occurring, and also of the range of consequences if it did occur. He also stated that he thought that, because there was no figure given for the risk of post-vasectomy pain, he thought it was less than 1:2000 since figures were given for the two other stated risks in the booklet provided to him. Stewart J held that the Claimant was mistaken in his memory. He also commented that it was not a “logical conclusion” as “if anything, the adjective ‘small’ would suggest a greater, not a lesser risk, than the adjectives ‘rare’ and ‘remote’.” While the illogicality did not mean that the Claimant could not have formed that view, it made it less likely.
Stewart J held that following the Claimant’s reading of the booklet “what he did know was that there was a small risk of (in his words) long-term bad pain, described in the blank consent form as ‘Serious or frequently occurring.’ The risk was unquantified, but had not been interpreted by him as less than 1:2000.” He went on to find that the Claimant had been told by the GP that chronic testicular pain was a potential complication and that the risk was referred to “in terms that conveyed that it was a small risk, but greater than the rare and remote risks of early and late failure.”
Stewart J concluded that “In terms of the quality of the risk, it was communicated to Mr Ollosson that it was a risk of long term persisting pain which could range from mild to severe. That is sufficient information.”
He then went to consider “In terms of the magnitude or quantification of the risk, was it sufficient for Doctor Lee to say that it was small, adding that it was greater than the rare/remote risks of early or late failure?” He held that it was not necessary to give “percentages of the risk of chronic post vasectomy pain, unless asked.” Further, that while the risk of chronic pain appeared to be about 5%, the risk of pain at the level suffered by the Claimant was very much smaller. Accordingly, he concluded that it was adequate to describe that level of risk as ‘small’ – “the word ‘small’ is clearly an everyday word which encompasses and satisfactorily conveys the level of risk involved…. While adequate information must be given to a patient without him having to ask a question, a patient told of a ‘small’ risk can ask for further clarification.”
This case will perhaps give some comfort to doctors concerned about the adequacy and accuracy of the advice that they give to patients about the likelihood of particular risks. Stating a percentage risk is potentially significantly harder than using everyday language to describe a risk.
Angus McCullough QC appeared for the Defendant in Keh. He did not contribute to this article.