Failure to obtain informed consent: is there a free-standing right to damages?

In this post Farhana Mukith discusses the case of Shaw v (1) Kovac & (2) University Hospitals of Leicester NHS Trust [2017] EWCA Civ 1028, in which the Court of Appeal considered whether compensation for the unlawful invasion of a patient’s personal rights ought to be recognised as a separate and free-standing cause of action.

Facts

In 2007 Mr Ewan, aged 86 was diagnosed with aortic valve stenosis which was assessed by the First Defendant (a surgeon) as severe. The First Defendant advised Mr Ewan that he was suitable for a relatively new trans-aortic valve implant procedure. However, he did not provide Mr Ewan or his family proper information as to the true nature of the operation and the inherent risks arising thereof. The operation was consented to and duly undertaken on 26 September 2007 under the supervision of the First Defendant. Unfortunately, shortly after the operation Mr Ewan began to bleed from the aorta and, despite attempts to stem the blood flow, he died.

Liability for failing to obtain informed consent was admitted. The case proceeded on causation and quantum only.

First instance

On 28 October 2015, HHJ Platts sitting at the High Court, held that there was no free-standing actionable claim for damages arising from the failure to obtain informed consent.

The judge accordingly awarded £15,591.83 which included £5,500 for pain, suffering and loss of amenity.

The Claimant appealed HHJ Platts’s decision on the basis that he should in addition have awarded £50,000 for “the unlawful invasion of the personal rights”.

Appeal

On the morning of the appeal hearing on 23 June 2017, a recusal application was made by the Claimant in relation to two of the three appeal judges, Davis LJ and Burnett LJ. This was ultimately dismissed. A summary of the recusal application can be found in Farhana Mukith’s case report of Shaw in the Personal Injury Law Journal.

As to the substantive appeal hearing, Davis LJ in delivering the leading judgment upheld HHJ Platts’ decision and dismissed the Claimant’s argument that an award for “the unlawful invasion of the personal rights” was a distinct cause of action. The judge held that it was in itself fatal that such a cause of action has never been pleaded. It could therefore not be raised on appeal.

In any event, the Claimant’s proposal was “bristle with difficulties”. It was clear from Montgomery v Lanarkshire Health Board [2015] UKSC 11 and Chester v Afshar [2004] UKHL 41 that the failure to obtain informed consent should be formulated as an action in negligence/breach of duty. The Claimant sought to rely on the same and argued that there is emphasis on the right of the patient not to be subject to treatment “interfering with her bodily integrity” without her informed consent and emphasis on the proposition that due protection should be given to the patient’s right of autonomy. Although Davis LJ accepted this, he held that neither authority supports an additional, free standing, award of damages for the infringement of the patient’s right of autonomy or interference with the patient’s bodily integrity. Those observations are there to explain just why the Bolam principles could no longer apply in assessing the standard of care that was apposite.

Davis LJ ultimately concluded that there was no need for an additional cause of action as the appropriate measure of damages for wrongful invasion of a patient’s personal autonomy, arising from a failure to obtain informed consent, can itself be reflected in the award of general damages. Davis LJ found support for this in the case of Richardson v Howie [2004] EWCA Civ 1127, [2005] PIQR Q3 (in the context of a case of assault) in which it was held that injury to feelings, including any indignity, mental suffering, distress, humiliation, anger or indignation, can be brought into account as an element of the compensatory damages comprehended by the award of general damages.

Comment

In dismissing the Claimant’s proposal for a novel kind of award for “the unlawful invasion of the personal rights”, the court was clearly mindful of the potential implications of their decision. Indeed, Davis LJ recognised strong reasons of policy for not taking such a step and concluded that there was no need for it.

Overall, the reality was that this was a claim for personal injuries and a claim for loss of expectation of life which had been removed by s. 1 of the Administration of Justice Act 1982. A development of the law, as suggested by the Claimant, would in effect have represented a shift from legal principle.

This case is also a reminder to practitioners to ensure that the cause of action that they intend to pursue is also their pleaded case. HHJ Platts was described by Davis LJ as “benevolent” in permitting the Claimant to pursue this argument, despite not previously pleading it. However, such benevolence cannot be extended to formulating a new cause of action.

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