UK: Consenting For The Unexpected

Last Updated: 26 May 2017
Article by Graeme Watson and Karen Rowney

Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356.

In this recent case, the Court of Appeal considered whether a doctor had a duty to consent a patient for the risk of his own negligence.

The Facts

Ms Correia suffered from a painful, recurrent neuroma in her foot. In November 2008, she underwent surgery at the hands of her consultant, Mr Ryatt. The surgery was to involve three steps:

  1. Exploration and separation of the nerve ending from the neuroma (neurolysis).
  2. Excision of the neuroma.
  3.  Tying or burying of the nerve ending (relocation).

Unhappily, Ms Correia's pain persisted despite the surgery and she developed chronic regional pain syndrome (CRPS).

The Claim

Ms Correia alleged Mr Ryatt negligently omitted step three. She claimed his failure to relocate the nerve meant the neuroma reformed, causing her chronic neuropathic pain. Her claim failed at first instance. The court found Mr Ryatt had performed the surgery negligently, but causation was not established. Her neuropathic pain pre-dated the surgery and she would have suffered CRPS in any event.

The Appeal

Ms Correia appealed. She argued she had consented to a three-step procedure, but this was not the surgery Mr Ryatt performed. He failed to warn her of the material risks of the two-step operation, namely that without the nerve ending being relocated away from the pressure points in her foot, the neuroma was likely to reform. She relied upon Chester v Afshar  to argue she did not have to show Mr Ryatt's negligence caused her injury: it was sufficient to show the injury was within the scope of his duty to warn when he obtained her consent to the surgery.

Lord Justice Simon was less than impressed with this argument and considered Chester provided it with "scant support." There could be no justifiable complaint about Mr Ryatt's consent process up to the moment the surgery began. It was intended to be a three-step operation. The negligent omission of the third step did not negate her consent. It was a breach of duty which had the potential to give rise to liability for damages, but Ms Correia made an informed choice to have the surgery and the injury was not "intimately linked" with the failure to warn. In any event, Ms Correia did not say she would not have undergone the surgery if properly warned. In fact, she wholly failed to address this crucial point in her evidence. The appeal failed.

Comment

Ms Correia attempted to overcome causation difficulties by spinning a straightforward "negligent treatment" case into one based on lack of informed consent. Her argument stretched the scope of the doctor's duty to warn beyond what is fair, just and reasonable. During any surgical procedure, there is a risk that the hospital might burn down, or that there might be a power cut, or the surgeon might act negligently; but to warn of every conceivable eventuality is beyond the scope of the doctor's duty. The duty instead is that set out in the seminal passage of Montgomery:

"The doctor is therefore under a duty to take reasonable care to ensure the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatment. The test of materiality is 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."

A surgeon does not go into a procedure intending to perform it negligently. It would be perverse to expect him to consent a patient for that risk. In Ms Correia's case, the court found Dr Ryatt had discharged his duty under Montgomery by consenting fully for the surgery he intended to perform. The fact he performed it negligently did not vitiate consent.

However informed consent is an ongoing process. In KR –v- Lanarkshire Health Board [2016] CSOH 133, Lord Brailsford found an obstetric registrar had breached her duty of care by failing to discuss treatment options with her patient throughout labour. As events unfolded, there came a point where two alternative approaches emerged. The doctor owed a duty to react accordingly and explain the risks and benefits of each approach, to ensure the patient could make an informed choice. If during Ms Correia's surgery Mr Ryatt had had to make a decision on whether to carry out step three, arguably the same duty to discuss would have arisen.

Consenting For The Unexpected

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Graeme Watson
 
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