Informed consent and the temptations of hindsight
Tosh v Gupta [2025] EWHC 2025 (KB)
Introduction
In Tosh v Gupta, a claimant failed to convince the court that she had not been properly consented in the face of a thorough if not forensically documented consent process. The case sheds light on how the court approaches evidential and substantive questions about consent to rare and serious complications of surgery, and demonstrates the high bar claimants must clear in order to succeed in such a claim.
The Case
The Defendant, a Consultant General, Colorectal and Laparoscopic Surgeon, undertook a routine haemorrhoidectomy procedure for the Claimant who was suffering from anal bleeding attributed to haemorrhoids. Unfortunately, this resulted in a ‘rare but serious complication’, anal stenosis, with life-changing consequences.
The Claimant asserted that she had not been properly consented: she alleged (1) a failure to offer non-surgical alternatives, and (2) failure to adequately explain the risks and benefits of the procedure offered. She said that, but for these failures, she would have chosen non-surgical treatment and avoided the anal stenosis.[1]
It was agreed that, even if the Claimant had opted for non-surgical options, they would not have been successful and surgical intervention would have been required two years later so, even if the Claimant succeeded, damages would be limited to a two year acceleration of symptoms (unless she would still not have undergone surgery).
The judge surveyed authorities on witness evidence in general, including specifically in relation to consent. She noted that, for the factual question of what the Claimant would have done, the question is a subjective one – what would this claimant have done. But the position of a claimant commenting after the fact and when there has been a serious complication is, as it was put in Smith v Barking, Havering and Brentwood Health Authority [1994] 5 Med LR 285, ‘wholly artificial’, so that if a reasonably informed claimant would probably opt for surgery, the Claimant would need to show that there were ‘extraneous or additional factors’ substantiating her assertion that she would not have done so.
The Decision
Evaluating the Claimant’s evidence, the judge found that though honest, it did ‘not accord with the evidence at the material times.’ More profoundly, the judge held that ‘the claimant now knows the importance of these issues to her claim, and this has affected her recollection such that she has at times recreated her view of what happened, whether consciously or subconsciously.’ This meant that contemporaneous documents and ‘overall probabilities’ were of particular importance.
The Defendant, though experienced, had not been as detailed in his record keeping as might have been expected, and he had to rely mainly on his usual practice and ‘what he believes he would have done or must have done based on the contemporaneous documents’.
The Claimant’s case was that, at a consultation, she had been ‘told’ that ‘the haemorrhoids needed removing and once removed this would stop the bleeding and she would feel much more comfortable.’ Ligasure haemorrhoidectomy, she said, had been presented as ‘the definitive surgery and his preferred method.’ The risk of anal stenosis, she said, had not been discussed (though lesser risks had been), nor had non-surgical methods of addressing anal bleeding. Had they been discussed, her case was that she would have taken time and asked for full details of alternatives. The Claimant accepted she had been given a leaflet that set out alternatives to treatment and risks, but these had not been covered verbally. The Claimant’s expert accepted that the treatment of the risks of surgery in the leaflet was comprehensive, and a patient who read it would be reasonably informed.
The Defendant said that he did address alternative treatments, but that the alternatives available (as set out in the leaflet) were not likely to succeed and the Claimant was keen to proceed with surgery. He relied on a letter following the appointment which recorded that “we had a discussion about haemorrhoid surgery, and she is keen to proceed”, saying this covered discussion of non-surgical treatment. He also relied on his standard practice, which was to not perform surgery in benign cases without discussing alternative methods. He also said that he would have discussed the risk of anal stenosis.
Anal stenosis was detailed on the consent form signed prior to surgery, which was signed by the Claimant and Defendant and countersigned by a nurse. The Defendant said his usual practice was to confirm the leaflet had been read. The Claimant maintained that anal stenosis had not been discussed verbally.
In a letter of complaint written after the surgery, the Claimant had focussed on the impact of surgery. Notably, ‘[t]he letter did not contain any complaint about her treatment prior to surgery, nor any complaint about not having been informed of the risks of surgery or of not being informed of other non-surgical treatment options.’ In evidence, the Claimant said this omission was because she was scared of losing her job (as she worked for the company which owned the hospital where the operation had taken place). She also said she had not complained about not being offered alternatives as she did not know there were any, and had other concerns in mind, i.e. the complications themselves.
The high point of the Claimant’s case on breach, as it was put in submissions, was that – as set out in a letter following her consultation, and verbally in the course of it – surgery was presented as the only real option. The information in the leaflet did not sway her from the advice actually given by her surgeon. On causation, she had to rely on her evidence and assertion that, had she been advised as she said she should have been, she would have opted for conservative treatment.
The judge accepted the Defendant’s evidence, finding that the discussions at consultation (taken together with the leaflet) were sufficient to discharge the duty to obtain informed consent arising under Montgomery v Lanarkshire Health Board [2015] UKSC 11 and McCulloch v Forth Valley Health Board [2023] UKSC 26. The judge found that the letter stating ‘we had a discussion about haemorrhoid surgery and she is keen to proceed’, was consistent with a full discussion having taken place and did not support the Claimant’s position that the surgeon had presented surgery as a ‘preferred option’. In fact, the letter tended to suggest that less preferred options had been discussed. The judge noted that no queries had been raised about the non-surgical options discussed in the leaflet.
The judge also accepted that Defendant’s evidence that risks had been discussed, noting this was consistent with the records, and rejected the Claimant’s explanation for the absence of this complaint from the complaint letter, noting that she had raised extensive complaints, and there was no explanation for why that complaint in particular would lead her to worrying about losing her job.
In rejecting the Claimant’s evidence, the judge noted that she was ‘particularly affected by the application of hindsight because her view is inevitably affected by the terrible outcome she has had from the surgery’, enhancing the importance of the documentary evidence.
On causation, which did not strictly need to be dealt with, the judge found that even if there had been a breach the claim would have failed as there were not ‘any such extraneous or additional factors to substantiate the claimant’s’ assertion that she would not have proceeded with surgery.
Comment
This case is a demonstration that despite the profound changes in the legal basis on which breach of duty is assessed in cases where a failure to obtain informed consent is alleged, the basic building blocks remain the same. Factual evidence, proven in the normal way, and being alive to the temptations of hindsight and the importance of documentary evidence and normal clinical practice are key.
It remains extremely difficult, where there is a robust system of gaining and documenting consent, to pull at minor threads where, for example, wording in a clinic letter is not as robust and detailed as it might be, in order to extrapolate to a breach of duty. Clinicians are not held to the exacting standards of legal documents, and their notes and recollections do not have to be perfect to avoid a finding of breach.
Even if breach is made out, there will be substantial hurdles to any claimant when it comes to causation: if all you have is an assertion that you would have done things differently, but a ‘reasonable’ patient would proceed anyway (a matter on which a judge is likely to be assisted by expert evidence as to the risks and benefits involved), then it is vital to evidence ‘extraneous or additional factors’ explaining why this claimant would be different, or risk losing on causation.
Finally, this case is illustrative of the protective effect of a multi-factorial consent process. Consultation discussion, a leaflet, and a final discussion with a third party witness in combination are more than the sum of their parts. It is not just an opportunity to cover things that were missed the first time around. Rather, the purpose of such a multi-factorial process is to allow the patient to read and digest information, consider whether they have any questions, and raise them if they do. If, following such steps, the patient does not raise any questions or concerns, as in this case, that may be powerful evidence that the patient was not concerned about risks or interested in alternatives.
Matthew Barnes of 1 Crown Office Row appeared for the Defendant but was not involved in the writing of this piece.
[1] There was also an allegation of breach relating to the grading of the haemorrhoids which this article does not address.
