“But for” vs Material Contribution and the burden of proof – Andrews v Greater Glasgow Health Board [2019] CSOH 31

In this post Vanessa Cashman of 12KBW examines the recent decision of Lord Pentland [siting in the Outer House of the Scottish Court of Session] in Andrews v Greater Glasgow Health Board [2019] CSOH 31.

Summary

The deceased attended hospital with vomiting and diarrhoea, both black in colour and was discharged with a diagnosis of gastroenteritis. She was taken back to hospital the following day where extensive necrosis of her bowel was discovered. She died the next day.

Breach of duty, principally in relation to whether she should have been admitted on her initial attendance, and causation were in issue. D’s case on causation was that C couldn’t prove when her acute deterioration occurred and therefore couldn’t prove that admission would have prevented her death.

The Court considered the relevant test for causation and considered that both “but for” causation and the material contribution test were satisfied.

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Fact-finding in consent cases and confirmation, no free-standing claim for damages arising from a failure to warn: Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust [2019] EWCA Civ 585

This blog is by Helen Waller and John-Paul Swoboda of 12 KBW

The Court of Appeal held that there was no free-standing claim for damages arising from a failure to warn of risks associated with a procedure that, on the facts, the Claimant would have undergone in any event.

The facts giving rise to this appeal were that the Claimant had had an abdominal hernia repaired using surgical mesh, which was then liable to affect future pregnancies. She was not advised of the possible alternative of a suture repair.

At first instance HHJ Freedman, sitting as a High Court Judge, held that the Claimant was entitled to damages in respect of a two-month delay in identifying and treating her hernia. The Judge also concluded that the operating surgeon had not provided appropriate information for the purpose of informed consent, but that there was no causation such as to give rise to an action for damages. This was so since, on the facts as held, had the Claimant been so informed then she would have chosen to proceed with the same mesh repair which in fact took place. The evidence before the Court was that the operating surgeon’s view was that a suture repair would be liable to fail, with a very high recurrence risk of the hernia and that the vast majority of surgeons would elect to repair the Claimant’s hernia with a mesh.

There are two points of particular interest. Firstly, the Court of Appeal’s approval of the trial judge’s approach to factual causation, which involved a consideration of the rationality of the decision about treatment. Secondly, the reiteration that the line of case law stemming from Montgomery v Lanarkshire Health Board [2015] 2 WLR 162 and Chester v Afshar [2005] 1 AC 134 does not give rise to a free-standing claim for damages arising from a failure to obtain fully informed consent without more.

The trial judge, in considering what the Claimant would have chosen to do had she been properly informed, considered the rationality of each possible decision: opting for the mesh repair or a suture repair. He found that to opt for the suture repair would have been irrational and that the Claimant herself was not a person who would act irrationally ([2017] EWHC 1495 (QB) at [49]). This was so even though at trial the Claimant gave evidence that she would have chosen the suture repair. In the Judge’s view, this evidence was coloured by her being (possibly erroneously) told in the interim period by another medical professional that it would be inadvisable for her to become pregnant because of the mesh (at [46]). Lady Justice Davies, giving the judgment on appeal, held at [22] that,

The judge met the requirement set out in Montgomery in that he took account of the reasonable person in the patient’s position but also gave weight to the characteristics of the appellant herself. He did not apply a single test of “rationality” without more to the issue of causation. No valid criticism of the judge’s approach, still less his assessment of the factual evidence can be made.

The Appellant abandoned her challenge to the Judge’s finding that there is no free-standing right to claim for damages to compensate her for an invasion of her right to personal autonomy or choice but did contend a right to damages on the basis that her shock distress and consequent depression was “intimately connected” to the failure to obtain informed consent. The Court of Appeal set out the relevant case law reiterating that the “but for” test still applies to causation in consent cases (at [15]) but also reiterated that this is not usually sufficient as it is also normally necessary to show that the breach was an effective cause (which is to say a cause whereby the claimant would have altered the risk s/he exposed themselves to): cf Duce v Wostershire Acute Hospital NHS Trust [2018] EWCA Civ 1307. In this case the appellant did not cross the first hurdle in showing that but for the breach the injury would not have occurred as she would nevertheless have undergone the surgery. Further if the appellant wanted to fit themselves into the exception in Chester v Afshar [2005] 1 AC 134 they would have needed to show a) that the breach was a ‘but for’ cause (on a probabilistic analysis) and b) that the operation would have been deferred had there been full disclosure of risk. In this case there was no evidence the appellant would have deferred the operation on full disclosure of risk but rather that the Claimant would have proceeded with the operation. The appellant’s argument that it was sufficient to show that injury was intimately connected with failure to fully disclose the risks was dismissed as being ‘without merit’.

This is, therefore, a helpful decision confirming the ability of first instance judges to take a logical and pragmatic approach to questions of fact, even when that goes against what a party is subjectively telling the court at trial and in providing clarity around the contours of causation in cases where there has been a failure to provide full disclosure of risk and/or alternative treatments.