Hello, My name is nine Maloney. I'm a barrister Hardwick specializing in clinical negligence and personal injury. This webinar looks at the law on consent. Medical treatment. What is the duty of doctor is the patient What does a claimant need to prove to establish breach duty and causation? And have the court's been dealing with informed consent cases? This has been a particularly hot topic for practitioners since the Supreme Court hand down their judgment in the 2015 case of Montgomery, which is generally viewed as having swung things in the favor of claimants andl patients. But before Montgomery, the leading case was sit away. And even 30 years before Montgomery, the issue divided the House of Lords Gold scar mint attorneys, 19 eighties discuss it. There might be a human right of patient autonomy to which the bowl, um test should not apply. But law did block and more bridge in the majority. Favored a doctor knows best approach. The majority favored a General Gholam test, applying to questions off consent and risks and netters to say that it would not be negligent for a doctor to fail to disclose particular wrists off treatment if they responsible body of practitioners would also have failed to have done so. Bolan itself was, of course, a case involving not just diagnosis and treatment of also advice. It was accepted by the majority in sit away. But in some cases it may be so clear that the particular risk is substantial, that it would be bound to be negligent to fail to disclose its patient. And that, I think, is a reflection of the bolivar exception to the boat test, which provides that the practitioner who has the support of a responsible body or practitioners may nevertheless be held negligent if they're accident or admissions, were illogical. But in conclusion, on sit away, it was considered that a paternalistic attitude that a doctor can decide what the best of the patient rather than the patient deciding themselves, was generally the acceptable approach you can see on the next slide that things have moved on in the intervening years as societal attitudes evolved. There are other cases that pushed the boundaries even before Montgomery, but Montgomery certainly represents the most significant change. Montgomery itself concerned the patient with insulin dependent diabetes nah, effect made her more likely to give birth to a larger baby. She was also of small stature. She fell pregnant with her first child in 1999 at which time it was known that Mrs Montgomery was a heightened risk off experiencing a birth with shoulder dissed OSHA. Because of the consequence off those risk factors, Mrs Montgomery was considered to be a high risk pregnancy, requiring intensive momentary. But she was not warned off the heightened breast off shoulder dissed OSHA. This was described by the defendant's own expert witness as if it were to eventuate a major obstetrics emergency and shoulders. Just OSHA can lead to the child sustaining severe break your plexus injuries as well as oxygen deprivation that has the potential calls profound brain injuries. The evidence in the Montgomery case was at the risk off shoulder dissed OSHA. A caring in cases involving diabetic mothers was around 9 to 10 cent. However, the risk that a child born to a diabetic mother would also suffer a break. Your plexus injury was about one in 500 and the risk off brain injury or death from high poxy A was no 0.1% or, in other words, well in one fails Mrs Montgomery's obstetrician didn't inform her off. The risk of shoulder dissed OSHA because she considered the risk of consequential injury to be very slight. Mrs. Montgomery, for Elsa Pregnancy expressed concerns about the size of her baby but did not specifically asked her obstetrician precisely about exact risks. Was her evidence her evidence? Waas that had she been informed of the risk of shoulder station, she would have asked for more information. Andi, following receipts that information would have been requested. A Caesarean section. Mrs. Montgomery experience A difficult later shoulder dissed. OSHA was infect, encountered, and the child was deprived of oxygen. Her child suffered very serious neurological injury that would have been avoided had the child been born by Caesarean section. At trial, there was competing expert evidence. Some of the experts considered that it was reasonable for liver responsible. Body of practitioners would not have discussed shoulder to station with the patient in their circumstances. Others felt it was unreasonable to a fable to have discussed the risk, particularly as Mrs Montgomery had expressed concerns over the sides of her baby. Against that factual background, the Supreme Court held that the Boland test was not applicable to those issues of consent medical treatment. In other words, there is no question that responsible body of doctors would have failed to have disclosed material rifts off any particular treatment. All failed to advise the patient on the availability of any reasonable alternatives. The Supreme Court went back to look at sit away and held that the paternalistic element of sit away was profoundly unsatisfactory. They even went so far to describe it as a reversal of logic, saying that the more patient knows about the risks that they face, the easier it is for them to ask specific questions. But it is those who lack such knowledge who are in the greatest need of information. Whilst Net was held meant to be the general approach going forwards, there is still, though, what is called the therapeutic exception that survives Montgomery. The therapeutic exception is that risk should not be disclosed if a doctor reasonably considers that doing so would be seriously detrimental to a patient tell. But natural thinking is generally reserved for emergency or serious mental help health type cases. What is meant by a material risk. Paragraph 87 off a judgment in Montgomery describes it is whether, in the circumstances off the particular case, a reasonable person in the patient's position would be likely to attach significance. That risk or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. This is not a question of bare statistics or percentages. That's what is material on what is not so on the next side. I think this could be condensed to the principle that risk should probably be regarded its material free circumstances. Firstly, if the likelihood off a consequence of caring is very small. But the potential consequences are very serious, as it wasn't Mrs Montgomery's case with 1 501 in 1000 risk profile or secondly, if the consequences of a risk eventuate sing, I'm not particularly serious. But the likelihood off a risk the caring is greater or, thirdly, where the consequences are not particularly serious and where the likelihood of a risk occurring is low. But the particular circumstances off the individual patient makes the risk or the potential benefit of alternative treatment that much more important. Moving on to the next slide In practice, the high court has certainly taken heed off the Supreme Court's message that bear statistics or percentages do not establishment t reality. In each of these three cases on the slides, the issue in dispute with whether a one in 1000 likelihood off different risk in each case is a caring was material in a least. Kent. This was a case in which was held that there was a one in 1000 chance of the baby being born with a chromosomal abnormality. The judge was Mr Justice Din Germans. He accepted the evidence of treating doctors that they would reasonably have seen such a risk to be negligible or theoretical. What, in 1000 it was held was not material, even though the consequence of that risk eventuate ing, would be a very serious disability for the child. The judge said that if alternatively, the risk have been more like 1% free percent, so 12 free in 100 he would have found that that was material. Tasman was also the case involving an expectant mother again, where a well in 1000 risk was held not to be material. However, in the case off hassle, this was again Mr Justice din Germans in that case on the facts. He held that one in 1000 to a well in 500 risk of paralysis in spinal surgery wasn't material risk where there was also buried treatments with different risk profiles onto the next slide. The case of Deuce and Wister provides a clarification off the approach that the courts must take on breach duty. This was a case about the risk off particular chronic pain following his threat. Me, The Court of Appeal held in that case that the court must first ask before looking at materiality. What risks were or should have been known by the medical professional consenting or advising the patient Only once net is tackled and Net is on a bowling basis. Do you move onto the second question, which is off materiality is the risk material. There has been a high court consent case this year, which practitioners should be aware off, and Mattias Mills and Oxford University hospitals, in this case, the claimant suffered with headaches and was diagnosed with a flyover, which is a human. In fact, the CLI oma wasn't recalls of the headaches, but the treatment wasn't informed that this for various reasons. Whilst that was a breach of duty not to inform the training that the lion that wasn't causing the headaches infected didn't bear on causation, the claim was informed. That's the treating doctors could monitor him or turn to the take a biopsy to obtain more information about the nature of that Lana, or simply to surgically remove it. From the outset, it was held that these were reasonably available treatment options. So one part of the Montgomery test was satisfied. Having been presented with those options that claim and opted to undergo surgery. However, the claimant wasn't advised that there were different surgical techniques available. A microscopically assistant technique was far more commonly used throughout the UK and in fact, it was found that really only the claimants treating surgeon use what is called the endoscopic technique. There were different risks associated with each approach, and the treatment wasn't advised about their The endoscope method involved a risk should bleeding. The experienced during surgery would be harder to control. The claimant underwent the endoscopic Lee assistant surgery and suffered a stroke due to a complication that was held not to have been caused by any unreasonable levels of surgical skill or technique. It was held in mills that the failure to explain about the available surgical options and their comparative risks was a breach of juicy. They failed to enable the payment to provide informed consent. It was found that had retained, been adequately informed he would've opted for the microscopically assisted approach and thereby avoided his strike. In my view, this probably got to trial because it may be seen by some to take Montgomery one step further by saying that it applies not just to setting out general different treatment options but even setting out differences between nuance, variations on the same type, all surgery, particularly in circumstances. Where are there are material differences in the risk profile off each available surgical technique? That's a look, a breach of duty. Ask tickle ization. There are three routes by which claiming can succeed in proving their case. Either they'll have to show that had they been informed and then given consent, they would not have gone ahead with the treatment or, alternatively, that they would have gone ahead with some alternative treatment. Or, thirdly, that they would have gone ahead with the same treatment, even if they have been for the informed, but that that treatment would have been undertaken at a different time. Whether likelihood of suffering the same injury would've been less than 50%. Whilst all three of those roots require came to prove a question of fact for which training will need to give evidence about, it's not always as easy as it appears to persuade a judge to accept more than claimants. Retrospective hypothetical answer. And this was evident in the case off Diamond on next slide on rural Devon and Exeter. In this case, the Court of Appeal, claiming appealed against the first instance decision where, despite breach of duty being found, the surgeon failed to obtain informed consent before undertaking a mesh repair off a hernia, it was found. Acclaim would nevertheless have chosen to have proceeded to mesh repair even if they had been provided or were unable to provide for the informed consent. As a result of undergoing treatment, the claimant suffered both physical and psychiatric injuries. The risks, but should have been slows to her included serious implications for any future pregnancy orbit they would not have completely conquer indicated the claim forming pregnant. Those implications would have been avoided had a simple sutra repair of the head yet been undertaken instead of the mesh, but with a simple sutra repair without mesh, the risk of the tenure recurring would have been about 50% within two years and inevitable at some point in the future that you would recur the surgeon. In their evidence in court, I said, I would have said that 95% of surgeons would advise a mesh repair on would have strongly recommended it to the patient, even if they've been made aware of it. The trial judge at first instance, found that hamper trade had been provided these vents country to the evidence that she gave she would have elected for a mesh repair because of the greater prospects off success off that notice surgery and because of pregnancy was not completely contra indicated by mesh repair, and the claim was single. At the time that she went in that surgery, the trial judge down a shame. It was a rational person and held electing a sexual repair in most circumstances would have been an irrational decision. The claim appealed, arguing that rationality test was not corrected law or that having found that it was a breach not to have offered a suitor repair as reasonable, tentative to mesh repair, it could not have been rational to have opted for a suit to repair. It can't be both reasonable. And the Russian. The Court of Appeal took the opportunity to set out the proper approach for causation. Following that is that happening found the breach duty to take account of the reasonable person in the patient's position and to give weight to the characteristics off the particular patient themselves. The diamond case, I think, emphasizes, even if the claim is believed in their evidence on their recollection for matters such in breach of duty. I hate what they were told or not told that particular times by the treating doctors, even if they believe that it can still be extremely difficult to satisfy Judge. But it's likely that they would have opted for a certain treatment against the recommendations off they're treating doctor. We looked at the free causation roots earlier, Chester and at Shaw is the authority for the Fed causation route. But Clayton would still have undergone the same surgery, albeit in a different time. The effects of Chester relevant and important to understand the claimant in this case wasn't born off a one or 2% chance that they would develop a serious spinal injury following surgery. The claim. It's evidence wasn't that had she been disclosed in a particular risk, that she wouldn't have undergone treatment tool just that her response would have been to have taken some time to wait up her options and then to have undergone surgery on another day. The 1% to 2% risk wouldn't have been any higher or lower had surgery been performed at a different time. This is a tricky issue for the House of Lords, and they were split free to to the minority held that but for causation wasn't made out on the facts. The failure to inform the patient wasn't the cause of the patients damage. There is no evidence that she would have been any better off any physically better off had she had time to think about things had surgery being performed at a later date, however, the majority found that claiming almost succeeded on traditional cooperation principles in that there would have been less than 50% chance of suffering that same injury at a later date. As Lord Steyn present as a result of the surgeons failure toward patient, she cannot be said to have given informed consent to the surgery. In the full legal sense, her right autonomy and dignity can and ought to be vindicated by a narrow, modest departure from traditional causation principles. That argument has subsequently been running cases involving a delay in treatment, but not involving consent. And it's it's failed in other types of cases where the courts deciding that the risk to protect from a surgically non negligent complications wasn't living escape of duty of care in a delay case? Only if the negligent delay has heightened the chance of risk eventuated could causation be proved in case it doesn't involve issues off effective consent. Chester and F. Shaw is a special modification of causation, applicable only to consent cases. It's doubtful that it would apply where the injury that suffered by the patient is not one that the surgeon has failed to warn the patient off. So if it's intensive, incidental risk eventuate, It's been unsuccessfully argued that there ought to be an award in consent cases for a loss of personal or Tommy. This argument was dismissed at first instance and on appeal in the case of Shore and Covic. It's also been argued that even where the treatment doesn't succeed on causation, the deprivation or personal autonomy should nevertheless be a free standing cause of action and sandals and damages, even without corporations to the physical injury Net has also been dismissed. So that is a look at the issues in cases involving defective consent in clinical negligence cases.
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