Pepper v Royal Free London NHS Foundation Trust  EWHC 310 (QB)
This article originally appeared in Issue 5 (May 2020).
The Claimant alleged that she unnecessarily underwent a laparotomy and Whipple’s procedure, an operation undertaken to remove cancerous tumours from the head of the pancreas. The procedure was carried out as it was believed that she was suffering from pancreatic cancer. In fact there was no malignancy and she instead had pancreatitis and cholecystisis. As a consequence of the pancreatic resection the Claimant had developed a range of problems including maldigestion, disturbance to bowel function, and weight loss. The question for the court to decide was whether the Claimant had properly given her consent for such surgery.
The outcome of the case largely turned upon the facts concerning what the Claimant was advised by the surgeon and how she reacted to that advice. In many consent cases it is an uphill task for the Defendant to persuade the court that the Claimant would not have consented to surgery had alternative advice been provided. Interestingly, this was an issue considered in some detail in the present case.
The claim was dismissed following a liability only trial in the High Court before Geoffrey Tattersall QC.
The Claimant attended hospital with right abdominal pain. Following various investigations it was suspected that she was suffering from a malignant tumour of the pancreas. She was advised to undergo the surgery which was performed several months later. During the procedure an intra-operative biopsy was negative for tumour, but the surgeon nevertheless continued to the Whipple’s procedure after concluding that the head of the pancreas felt hard. Subsequent histology confirmed that there had been no malignancy.
The key issue for the Court was whether the Claimant’s consent to the Whipple’s procedure was contingent on evidence of malignancy during the intraoperative biopsy or whether this could proceed also in circumstances where the surgeon concluded that the appearance of the pancreas was very suspicious. The Claimant’s case was that she would not have undergone the Whipple’s procedure had she received appropriate advice and treatment. She claimed that, had there been a further period of observation, the abnormality would have resolved, and she would not have undergone any surgery.
The Claimant relied upon the well-known decisions on consent of Chester v Afshar  UKHL 41 and Montgomery v Lanarkshire Health Board  UKSC 11, the former dealing with when justice might require a modification of the normal approach to causation and the latter which set down the test of ‘materiality’ defined as, “…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 reasonably be aware that the particular patient would be likely to attach significance to it.”
Both Chester and Montgomery have proved to be highly controversial, both departing from previously well-established principles and placing a particular emphasis on patient autonomy: one in the context of the scope of the duty of care, the other in respect of causation.
The Court also considered authorities such as R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3)  1 WLR 973 dealing with the importance of contemporaneous documents as compared to oral witness evidence.
The Court considered in detail the factual background to the claim, focusing on what advice the Claimant was given about her condition and the appropriate treatment.
When making findings of fact the court kept in mind the role of a doctor to ensure that a patient understands the serious consequences of their condition, the treatment options, the risks of undergoing or not undergoing treatment and the patient’s right to make an informed decision as to whether to undergo that treatment. A doctor should provide sufficient information in an appropriate manner to enable the patient to make an informed decision. In his judgment Geoffrey Tattersall QC said that, “…the law does not require a court to micromanage the words used by a doctor to a patient provided that they do not involve putting a patient under pressure to accept a certain form of treatment.”
There was careful consideration as to whether the language used to advise the Claimant placed too much pressure on her to undergo surgery. The judge decided that, “Although in other situations it might be considered that the use of such language was inappropriate, I have no doubt that it was fully justified on the facts of this case to emphasise to the Claimant the gravity of her situation.” It was held that the surgeon, “would have been failing in his duty if he had not used such stark language when he believed that the Claimant did not fully appreciate the gravity of her situation.”
When it came to the issue of consent, the judge found that the surgeon did not say that intra-operative biopsies were unreliable, however, he was also satisfied that the Claimant was already aware of this from other experiences. It was also found as a matter of fact that the surgeon had explained that, even if the biopsy was negative, it could not be assumed that the Claimant did not have pancreatic cancer such that he reserved the right to perform a Whipple’s procedure.
As a result, it was held that the Claimant had given her consent to the Whipple’s procedure if the intra-operative biopsy was positive or if the surgeon had found a very suspicious appearance on examining the pancreas.
The judgment also considers the evidence given by the parties’ respective experts, in particular with regards to the risks of which the Claimant should have been warned prior to consenting to surgery, the efficacy of intra-operative biopsy and whether, in light of that advice, she would still have consented to the surgery.
The gravity of a diagnosis of pancreatic cancer was recognised by all parties. It was found that the Claimant would have been risk-averse to waiting to see if the pancreatic lesion grew to such an extent that cancer became inoperable rather than undergoing surgery which, if there was no cancer, would leave her with unnecessary disabilities.
The judge concluded that the Claimant should have been advised that the risk of malignant pancreatic cancer “was greater than 50% and probably significantly more” and that, “I have absolutely no doubt that in these circumstances she would have consented to surgery.” It was also found that, whilst the surgeon had conceded that he had not given the Claimant the percentage risks of a Whipple’s procedure, “…on the facts of this case no further explanation in percentage terms as to each risk of such procedure would have assisted the Claimant or might have persuaded her not to consent to the procedure in the manner she did.”