Thursday, 17 December 2015

Relying on Medical Records

"The Judge won't believe me. He'll believe what's in the notes".

I have heard that said by many clients who are contemplating bringing a clinical negligence claim. But it is not true. Judges take into account all the evidence. Whilst it is true to say that contemporaneous notes made by a medical professional will ordinarily carry great weight at court, where there is a conflict between a patient's recollection and what was recorded contemporaneously by their doctor, the court is not bound to find that the record is accurate and the recollection unreliable. That has been confirmed by the Court of Appeal decision in Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283

Just as patients sometimes believe that the courts are bound to accept the truth of something recorded in the medical notes, so healthcare professionals are sometimes taught that "if it isn't recorded, it didn't happen". That is equally untrue.

It always depends on the circumstances. 

If three independent medical practitioners all separately record that the patient reported no pain, but the patient says that they told them they were in pain, the court may struggle to find that "on the balance of probabilities" the patient reported that he was in pain.

If a patient and two relatives recall that he told Dr X that he was in pain, and Dr X' cannot recall the consultation but his junior doctor recorded "All fine" and nothing more, perhaps the court will be more likely to find that the patient did report that he was in pain.

A record of a consultation cannot be a word for word account. On the other hand a doctor who does not note a matter of potential significance, even if the finding was "normal", e.g. there were no red flag signs of cauda equina syndrome, may regret having failed to do so. When asked at court why they did not check for red flag signs, a reply that "they would have done so" carries much less weight than a contemporaneous record that they had done so and there had been no such signs.

I cannot recall seeing medical records counter-signed as accurate by a patient. Consent forms are of course signed but not other records. Patients tend not to make and keep notes themselves. There is no reason why they should not do so.

Sometimes patients are convinced that a medical record has been tampered with or "doctored" (pun intended). It has been known. But the court will need to be presented with cogent and compelling evidence before it can find that medical records have been concocted or dishonestly altered after the event.

The Court of Appeal in Synclair has reviewed guidance on these sorts of issues, providing a very helpful source for clinical negligence practitioners. Tomlinson LJ said:

  1. We were shown, in chronological order: the well-known remarks of Lord Pearce in his dissenting speech inOnassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 at p 431; the guidance given by Lord Goff of Chieveley giving the opinion of the Judicial Committee of the Privy Council in Grace Shipping v Sharp & Co [1987] 1 Lloyd's Rep 207 at 215-6, in particular founding upon his own judgment in the earlier decision of the Court of Appeal in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1 when he said, at page 57:-

  2. "Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth."
    In Grace Shipping Lord Goff noted that his earlier observation was, in their Lordships' opinion "equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence." We were reminded too that in "The Business of Judging", Oxford, 2000, Lord Bingham of Cornhill observed that:-
    "In many cases, letters or minutes written well before there was any breath of dispute between parties may throw a very clear light on their knowledge and intentions at a particular time."
    The essential thrust of this learning is the unsurprising proposition that when assessing the evidence of witnesses about what they said, or what was said to them, or what they saw or heard, it is essential to test their veracity or reliability by reference to the objective facts proved independently of their testimony, in particular by reference to contemporary documentary evidence.

    He noted that:

    1. In the present case it is plain that the judge recognised that the evidence of the Claimant had to be assessed in the light of the apparently contemporaneous clinical note. Indeed that note was doubly important. Not only did the Claimant's evidence fall to be evaluated in the light of it, the note also represented the full and entire extent of the evidence which Mr Zafar could give as to what was said and observed on his ward round, as he had no recollection as to what had transpired independent of what was written in the note.
    2. However it is too obvious to need stating that simply because a document is apparently contemporary does not absolve the court of deciding whether it is a reliable record and what weight can be given to it. Some documents are by their nature likely to be reliable, and medical records ordinarily fall into that category. Other documents may be less obviously reliable, as when written by a person with imperfect understanding of the issues under discussion, or with an axe to grind. I would commend the approach of His Honour Judge Collender QC, sitting as a judge of the High Court, in EW v Johnson [2015] EWHC 276 (QB) where he said, at paragraph 71 of his judgment:-

    3. "I turn to the evidence of Dr Johnson. He did not purport to have a clear recollection of the consultation but depended heavily upon his clinical note of the consultation, and his standard practice. As a contemporaneous record that Dr Johnson was duty bound to make, that record is obviously worthy of careful consideration. However, that record must be judged alongside the other evidence in the action. The circumstances in which it was created do not of themselves prevent it being established by other evidence that that record is in fact inaccurate."
      Dr Johnson, a GP, had made his own note of a consultation at an out of hours walk-in centre at a hospital. After a careful evaluation of all the evidence in the case, the judge found that Dr Johnson's oral account in evidence, based on his contemporaneous note, was reliable. In Welch v Waterworth [2015] EWCA Civ 11 a surgeon was unsuccessful in persuading the court that his own notes of a surgical procedure which he had performed, one a manuscript note written very shortly after the operation and another a typewritten note made later in the day at home, did not accurately record the order in which he had carried out the constituent parts of the relevant procedure.

    4. The real difficulty which the judge faced in the present case was that he had no evidence of the circumstances in which the relevant clinical note had been made, and no evidence from the maker of the note, who was not Mr Zafar but Dr Dal Bianco. Furthermore, it was unclear whether Dr Dal Bianco had been present when Mr Zafar spoke to and examined the Claimant at 08.10 and unclear when precisely he prepared the note relating to that ward round.
The Trust submitted that medical records carry great weight because doctors have a professional duty to provide an ongoing record and could risk professional sanctions for failing in that duty. The Court held that whilst in many cases the inherent reliability of medical records would carry the day, it all depended on the circumstances in the individual case.

The trial judge had approached the finding of fact exercise in a proper manner and his finding that the facts were other than as recorded in the contemporaneous medical record was upheld.

Friday, 4 December 2015

The Case of the Damaged Nerve

The Court of Appeal has given judgment in a clinical negligence case that concerned the use of inference to make a finding about a surgeon's standard of skill and care - O'Connor v Pennine [2015] EWCA Civ 1244.

Tracey O'Connor underwent uro-gynaecological surgery to repair a vesico-vaginal fistula. Following the operation she suffered femoral nerve dysfunction which the expert neurologists instructed by the parties agreed was due to some form of surgical trauma. She went on to develop permanent disability which was non-organic. She recovered substantial damages after trial.

The Claimant's case was that the damage had been caused during surgical dissection. The expert urological surgeons had agreed that there were two possible mechanisms of damage - by dissection, which would be negligent, and by use of deep retractors. They disagreed as to whether it would have been negligent for the surgeon to have caused femoral nerve damage by deep retraction. The Defendant sought to suggest a further possible mechanism of damage, namely through the administration of regional anaesthetic block, and had applied on the first day of trial to introduce a fresh expert to deal with that contention.

Application to Introduce A New Expert

The trial judge had refused that application. Permission to appeal was granted but the Court of Appeal termed that appeal "obviously misconceived". The circumstances of the Defendant's application had not been auspicious - it was made without notice on the first day of trial and after an unappealed refusal of permission by a District Judge a few months earlier. Jackson LJ said, "Following the civil justice reforms of 2013, that is simply not how we do things now.... I do not see how a decision to abort a clinical negligence trial on day 1 for the benefit of a dilatory defendant could possibly be justified." [53]

Inference and Res Ipsa Loquitur

The trial judge weighed all the evidence, reminded himself of the guidance of the Court of Appeal in Ratcliffe v Plymouth & Torbay HA [1998] PIQR P170 and of the Rhesa Shipping v Edmunds [1985] 1 WLR 948 ("The Popi M") trap and held that on the balance of probabilities the damage was caused during dissection and therefore was caused negligently.

The NHS Trust appealed against that finding. Jackson LJ giving judgment with which McCombe LJ and  Sir Colin Rimer agreed, referred not only to those two authorities but also to Thomas v Curley [2013] EWCA Civ 117 which I have discussed previously. In Rhesa the House of Lords condemned the adoption by the trial judge (Bingham J no less) of the Sherlock Holmes mantra that if all other possibilities are excluded, the remaining possibility, however unlikely, must be the truth. That reasoning process was invalid because there remained the legal test of whether the remaining possible explanation or cause was likely "on the balance of probabilities". A Court might well find that there one explanation is more probable than the others  put forward, but that it is still not the likely cause or explanation. More probable that the suggested alternatives is not the same as more probable than not.

Jackson LJ however held that:

"It is not an uncommon feature of litigation that several possible causes are suggested for a mishap which the court is investigating. If the court is able, for good reason, to dismiss causes A, B and C, it may be able to reach the conclusion that D was the effective cause. But the mere elimination of AA, B and C is not of itself sufficient. The court must also stand back and, looking at all the evidence, consider whether on the balance of probabilities, D is proved to be the cause." [64].

He noted that the notion of damage by deep retractor had been discounted by both parties by the close of evidence and he held that the trial judge had been entirely justified in dismissing the defendant's suggestion of damage by the administration of anaesthesia. Accordingly the "fact that the defendant had not proffered any plausible explanation for the claimant's injury consistent with the exercise of due care did not convert the case into one of res ipsa loquitur. Nor did it reverse the burden of proof. Nevertheless this was a material factor which the judge was entitled to take into account." [84]

This is very useful guidance for clinical negligence cases where the patient cannot adduce direct evidence of the negligence cause of his or her injury, for example because they were under general anaesthetic and the surgeon did not notice that anything had gone awry during the operation. The lack of a plausible explanation which is consistent with no negligence does not prove the case of itself, but it is relevant to the court's task of determining the cause on the balance of probabilities. Defendants must not be allowed to characterise a Claimant's case as one of Shorlock Holmes/Popi M reasoning or of res ipsa loquitur simply because the Claimant is alleging that all non-negligent explanations of an injury are implausible or unlikely.  That does not prove the case, but it is relevant. In some cases it will be highly relevant. Of course, as in this case, the court has to make inferences from all the circumstances, but that is not the same as adopting the doctrine of res ipsa loquitur.

Drawings and Photographs

Jackson LJ humourously teases my opponent at paragraph 44 of the judgment. He crticises the presentation of the case, complaining about the lack of drawings or photographs to show the relevant internal anatomy. To be fair photographs would not have assisted, and there were some technical drawings, albeit not very clear ones. Jackson LJ says that Mr Feeny "valiantly did his best by waving a finger around in the air to show us what was what." Taking Jackson LJ's plea a little further, there is no doubt that we could, at clinical negligence trials, make more use of models and technical drawings, perhaps even 3D modelling, to explain a case. I am sure (NOT) that costs budgeting orders will be increased to provide funding accordingly.

I appeared for the the Claimant at trial and on the appeal, instructed by Mealla Logue of McCool Patterson Hemsi solicitors.

Thursday, 8 October 2015

The Right to Choose Your Surgeon

NHS patients have the right to make an informed choice about by whom they are to be operated on. So found David Blunt QC sitting as a Recorder in Exeter County Court. His judgment in the case of Kathleen Jones v Royal Devon and Exeter NHS Foundation Trust was handed down on 22 September 2015 and is available on Lawtel.

Ms Jones, the Claimant suffered from back pain and was found to have a spinal canal stenosis due to a bulging disc at the L4/5 level. She was referred to the Royal Devon and Exeter Hospital where she was seen by Mr Chan, a Consultant Orthopaedic Spinal Surgeon, described in the judgment enjoying "a very high reputation both locally and nationally". Following discussions with Mr Chan on 17 March 2010, she elected to undergo decompression surgery. The operation was performed at the hospital on 29 July 2010 not by Mr Chan, but by a Mr Sundaram a Fellow in Trauma and Orthopaedics at the hospital who had already been appointed to a consultancy in Gloucestershire.

Ms Jones wanted to bring forward the operation but was told that if it was brought forward Mr Chan would not be able to perform it. She sought advice from her GP who recommended strongly that she should wait until Mr Chan was available. She accepted that advice. The Court found that Ms Jones only found out that Mr Sundaram, not Mr Chan, would be performing the operation as she was about to be wheeled into theatre. By then, the Claimant said, and the Court accepted, she felt she was "beyond the point of no return".

Sadly during the operation a dural tear was caused with avulsion or damage to a number of nerve roots. The Claimant's expert thought that the performance of the surgery was sub-standard but the Judge accepted the Defendant's expert's view that although the complication was at the severe end of the spectrum, it was not, without more, evidence of negligence.

Nevertheless the Claimant's claim succeeded. The Judge noted Lord Hope's judgment in Chester v Afshar [2004] UKHL 41 at [86]: 
"I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether and if so which and by whom, to be operated on."

The Claimant had been deprived of the right to choose by whom she was operated on. The damage caused to the Claimant was not due to some anatomical abnormality such that the same damage would have been caused whoever performed the surgery. The Judge found that had Mr Chan performed the operation it would have involved a "lesser risk than an operation carried out by any less experienced surgeon" and that accordingly, in his view, causation was established "on conventional principles". In any event the infringement of the patient's right demanded a remedy otherwise that right would be a hollow one [70]. 

Clearly there was strong evidence in this particular case that the choice of surgeon was important to the Claimant. Such evidence might be lacking in many other cases. Nevertheless this is further evidence, following Montgomery v Lanarkshire [2015] UKSC 11 of the Courts' emphasis on patients' rights to autonomy.

Cases such as Jones and Montgomery surely call into question the usefulness of the standard consent forms on which so many NHS Trusts rely. They might protect a Trust or a doctor against a claim for trespass to the person, but they surely fall short of providing any meaningful evidence that informed consent has been obtained. Ms Jones had in fact signed a standard Consent Form 1 several days before the operation (at pre-op assessment) which states that there is no guarantee as to the identify of the surgeon. That did not prevent the court from finding the Trust liable for not providing the surgeon chosen by the claimant.

Monday, 27 July 2015

Billett - Loss of Earning Capacity

The Court of Appeal has given an important judgment on the assessment of damages for loss of earning capacity. It may herald a shift upwards in awards for loss of earning capacity.

The case is Billett v Ministry of Defence [2015] EWCA Civ 773, an appeal against a quantum judgment of Andrew Edis QC sitting, as he then was, as a Deputy High Court Judge. I represented the Respondent on the appeal.

Mr Billett had suffered a non freezing cold injury to his feet following a training exercise whilst he was in the Army. Liability had been compromised at 75% of damages to be assessed. Mr Billett was awarded just over £127,000 on 100% basis, but two of the awards were the subject of appeal: the award of £12,500 for pain, suffering and loss of amenity, and £99,064.04 for loss of earning capacity.

The first instance judgment can be found here. Mr Billett was aged 29 at trial. His injury was found to be to his feet only and to be very mild. The Trial Judge found that he was disabled within the meaning of the Equality Act 2010, "but only just". The Trial Judge found that he had left the army for reasons unrelated to his injuries and was in employment earning as much as he would have been without his injury. His NFCI prevented him from working or doing "anything else outside in cold conditions for any appreciable period of time". He worked as Large Goods Vehicle driver and his condition was not interfering very much with his ability to carry out that work at the time of the trial.

The Court of Appeal upheld the award of general damages for PSLA.

Loss of Earning Capacity

The principal issue identified by Lord Justice Jackson giving the lead judgment in the Court of Appeal was "how the court should assess damages for loss of future earning capacity in circumstances where the claimant suffers from a minor disability, is in steady employment and is earning at his full pre-accident rate. Should the court follow the traditional Smith v Manchester approach or should the court use the Ogden Tables suitably adjusted?" Note that in the first instance decision in Conner v Bradman [2007] EWHC 2789 (QB) the Judge was making an award for a "quantifiable loss of earnings" not for loss of earning capacity.

The Ogden Tables and Explanatory Notes include (since the 6th Edition) Tables A to D which set out "reduction factors" ("RF") to be applied to multipliers from tables 3 to 14. The RFs which are based on evidence of the effect on earning capacity of employment status, educational qualifications and disability status for men and women of certain age groups.  By comparing table A with Table B, keeping all other factors equal, the impact of disability on a man of the Claimant's age could be isolated. Of course the tables are only directly relevant if the claimant is "disabled" within the meaning set out in the Explanatory Notes. That test of disability involves (but is not limited to) consideration of whether the individual is disabled as defined within the Equality Act 2010. Furthermore, the tables give a mean figure for the relevant group: e.g. for 25 to 29 year old men, in employment with mid-range educational qualifications who are "disabled". Some within that group will have severe conditions, some, as Mr Billett was found to be, would only just scrape into the group. Should the Court apply the same reduction factor to all within the group? Articles on that issue by William Latimer-Sayer and Dr Wass in JPIL are referred to in the judgment.

Ultimately the Court of Appeal held that in the particular circumstances of this case a "traditional Smith v Manchester approach should have been adopted" rather than use of the Ogden Tables. It substituted its own assessment of £45,000 for loss of earning capacity, which equated to just over twice Mr Billett's annual net earnings. It should be noted that although this was less than half the Trial Judge's award, it was an award for a person who "only just scrapes" into the definition of disabled used within the Ogden Tables Explanatory Notes. Accepting that at the time of assessment the Claimant was only 29 years old, the award nevertheless suggests higher multiples of net earnings for claimants with more severe restrictions, even if the traditional Smith v Manchester approach is adopted. That would be most claimants, given the findings as to the test of "disability" (see below) and that Mr Billett's injury placed him at the outer fringe (at the bottom) of the range of disability.

The judgment addresses the use of the Ogden Tables and Explanatory Notes and the definition of disabled" for the purpose the Ogden Tables.

Definition of "Disabled"

1. The Court adopted the approach of the EAT in Aderemi to the test of "disability" under the Equality Act 2010, which test is adopted as one of the conditions for classifying a person as "disabled" for the purpose of the Ogden Tables A to D. Note that the test is not whether a disability is substantial, but whether the impairment has a substantial adverse effect on the individual's ability to carry out normal day to day activities. "Substantial" means "more than minor or trivial". Thus very many individuals with long term injuries will fall within the definition. It is a broad definition. The MOD submitted that the test of disability was whether the claimant broadly matched the examples set out in the Explanatory Notes. In doing so it had adopted the same wording as appears in Professor Wass's most recent JPIL article. In fact the MOD had instructed Dr Wass to advise it prior to the appeal hearing. The Court of Appeal did not adopt that test.  It did not agree with Dr Wass's opinion that Mr Billett was not disabled for the purpose of the tables. Unless and until there is a change in the conditions for the classification of a claimant as disabled within the Explanatory Notes, the Court of Appeal's approach is authoritative. 

Ogden Tables "A Valuable Aid"

2. Lord Justice Jackson stated, "I accept that in may instances the use of Tables A-D will be a valuable aid to valuing the claimant's loss of earning capacity." They were found not to be a valuable aid in the present case because the claimant was "at the outer fringe" of the broad spectrum of disability, and his disability "affected his ability to pursue his chosen career much less than it affects his activities outside work". As such there was "no rational basis for determining how the reduction factor should be adjusted." Labour market economists such as Dr Wass may not agree with that conclusion. Nevertheless for many claimants who are "disabled" and who fall to be compensated for loss of earning capacity, the Ogden Tables A to D will be a valuable aid to the courts.

The 2002 paper by Richard Lewis and others in the Journal of Law and Society, published in an abbreviated form in JPIL [2002] vol 2 pp151-165, concluded that Smith v Manchester awards had tended to under-compensate claimants, particularly younger men (such as Mr Billett). The Court of Appeal judgment does not refer to those papers but the Court considered that an award of slightly more than twice Mr Billett's annual net earnings was appropriate even though he was "only just" disabled.

The question of the appropriate adjustment to make, if any, to the RF in such cases where the court does use the Ogden Tables A to D as a valuable aid, remains unanswered by this judgment. The JPIL articles referred to in the judgment will be, I suggest, of considerable assistance. The RFs within the tables are mean figures for each relevant group. The Court of Appeal noted evidence that if those within any "disabled" group were categorised from 1 to 10 in terms of the severity of their disability, over 42% would be in the 1-3 categories. Only 13% would be in the 8-10 categories. Hence, I suggest, any adjustment would have to reflect that distribution. I also suggest that courts have to beware that some adjustments to the "after disability" RF would logically have to be made to the "before disability" RF with which comparison is being made for the purpose of assessing the loss of earning capacity. For example, if a Claimant is said to be a particularly gifted communicator, or has vocational qualifications not taken into account in the Tables, those factors would affect his potential earning capacity with or without a disability. It would be wrong to adjust only the "after disability" RF.

I was instructed by Ahmed Al-Nahhas of Bolt Burdon Kemp and my Juniors were Laura Collignon and Nicholas Maggs of Thomas More Chambers, to all of whom I pay tribute for their hard work, depth of knowledge and insight.

Wednesday, 11 March 2015

Patient Autonomy Triumphs over Medical Paternalism

The Supreme Court has made a clear statement that the Bolam test is not applicable to issues of consent to medical treatment. A seven member decision in Montgomery-v-Lanarkshire Health Board [2015] UKSC 11 displaces previous authorities and is the new leading case on consent.

Perhaps the importance of the decision explains the length of time between the hearings (July 2014) and the judgment (11 March 2015) but there may be other reasons of which I am unaware.

Mrs Montgomery was of small stature and suffered from insulin dependent diabetes mellitus. Women suffering from diabetes are likely to have larger than normal babies. She underwent intensive monitoring during her pregnancy and was under the care of a Dr McLennan.

A particular risk was of shoulder dystocia which, should it occur, is a real obstetric emergency. Not only does it give rise to a risk of brachial plexus injury, but if the baby cannot be delivered promptly there is risk of serious oxygen deprivation, brain damage and even death of the child. The Supreme Court proceeded on evidence that there was about a 10% risk of shoulder dystocia occurring during the delivery of the child. Mrs Montgomery was not warned of that risk.

The leading judgment was given by Lord Kerr and Lord Reed, with whom four other Justice agreed, Lady Hale giving an additional but fully supportive judgment. Lord Kerr and Lord Reed noted at [13] :

"Unsurprisingly, Dr McLellan accepted that this was a high risk. But, despite the risk, she said that her practice was not to spend a lot of time, or indeed any time at all, discussing potential risks of shoulder dystocia. She explained that this was because, in her estimation, the risk of a grave problem for the baby resulting from shoulder dystocia was very small. She considered, therefore, that if the condition was mentioned, “most women will actually say, ‘I’d rather have a caesarean section’”. She went on to say that “if you were to mention shoulder dystocia to every [diabetic] patient, if you were to mention to any mother who faces labour that there is a very small risk of the baby dying in labour, then everyone would ask for a caesarean section, and it’s not in the maternal interests for women to have caesarean sections”."

Dr MacLennan accepted that Mrs Montgomery was concerned about the size of her baby but stated that she had never specifically asked about shoulder dystocia. The court noted that the risk of brachial plexus injury was 0.2% and the risk of prolonged hypoxia causing cerebral palsy or death was as low as 0.1%. There were also risks to the mother, including increased risk of post partum haemorrhage.

At delivery shoulder dystocia occurred and delivery took 12 minutes to accomplish (vividly described in the judgment) during which time the umbilical cord was wrapped around the baby's neck causing hypoxia and severe brain damage.

At first instance, and at first appeal, the courts rejected the claimant's claim on the basis - which was accepted by the Supreme Court - that a reasonable body of medical opinion would not have advised Mrs Montgomery of the risk of dystocia (and that it was not irrational to fail to do so). The lower courts considered that the case of Sidaway-v-Board of Governers ... [1985] AC 891 remained good law and that it determined that the Bolam test applied to the issue of consent - was Dr MacLennan's conduct in accordance with a reasonable or responsible body of medical opinion.

Lord Kerr and Lord Reed noted and analysed the range of opinion stated by their Lordships in Sidaway. There was no unanimity as to whether the Bolam test should apply, unqualified or at all, to the question of consent. The application of Bolam to consent was further questioned in Pearce-v-United Bristol Healthcare NHS Trust 1999 PIQR P53 and Chester-v-Afshar. 

In Pearce, a Court of Appeal decision, Lord Woolf MR said this:

“In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt.”

This then appeared to displace the reasonable doctor test with a prudent patient test. But Sidaway was a House of Lords decision.

Any lack of clarity has now been resolved. Lord Kerr and Lord Reed noted comparative jurisprudence including the Australian case of Rogers in which the court had noted that a doctor should be alert to the particular concerns of a patient about certain risks, which might be different from the concerns of a hypothetical reasonable patient. Lord Kerr and Lord Reed observed that there had been many social or societal developments and changes even since Sidaway. He said at [81] that what social and legal developments

"... point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices."

And at [82] and [83]:

"82. In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a
person to a risk of injury which she would otherwise have avoided, but it is also the counterpart of the patient’s entitlement to decide whether or not to incur that risk. The existence of that entitlement, and the fact that its exercise does not depend exclusively on medical considerations, are important. They point to a fundamental distinction between, on the one hand, the doctor’s role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.

"83. The former role is an exercise of professional skill and judgment: what risks of injury are involved in an operation, for example, is a matter falling within the expertise of members of the medical profession. But it is a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment. The doctor’s advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient’s entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person’s rights rests with the courts, not with the medical professions."

And so at [87] Lord Kerr and Lord Reed set out the authoritative position on consent to medical treatment:

"The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce,  subject to the refinement made by the High Court of Australia in Rogers-v-Whitaker  which we have discussed at paras 77-73. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. 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."

There is the therapeutic exception to this rule, namely that a doctor may withhold information from a patient if he considered it would be seriously detrimental to their health. Clearly that was not thought to apply in the present case (even though Dr MacLennan's view was that imparting information about risk of shoulder dystocia, and the possible complications from it, would lead all diabetic mothers to have Caesarean sections). Indeed Lord Kerr and Lord Reed warned that the therapeutic exception must not be abused.

They also noted that the assessment of risk could not be reduced to a question of percentages and, further, that the consent process involved a dialogue between doctor and patient.

The second part of the lead judgment concerns the issue of causation - an important issue but it was decided on its facts in the particular case. Of note, the Supreme Court were concerned to stress that the issue was not the risk of the complications of shoulder dystocia, but the risk of shoulder dystocia (about 10%) and of the various complications and procedures that SD might entail. 

The Supreme Court does seem to have regarded elective Caesarean section as having virtually no risk at all [91]. Perhaps this decision will lead, as Dr MacLennan thought likely, to Caesarean sections becoming the norm for diabetic mothers. If we live in a risk averse age - or at a time when we are still on the learner slopes when it comes to how best to weigh competing risks - then the removal of medical paternalism will be likely to affect the treatment choices patients make, perhaps leading to greater demand on NHS resources.

In reality, of course, it remains true that the manner in which a doctor gives information about risk can strongly influence what decision a patient makes. Many patients are content to be guided by their doctors. Other patients will have strong opinions about their treatment and will make decisions that their doctor thinks unwise. So be it - that is their right. Patient autonomy has to respected and that is now, unequivocally, the view of the Supreme Court.

On the other hand a patient does not have a right to demand that a doctor gives them whatever treatment they ask for. There are funding restrictions within the NHS and, in some cases, doctors may refuse to give treatment because they they believe that to do so would cause harm and would not be in the patient's best interests. Patient autonomy is not the same as a right to treatment on demand. Doctors have professional obligations.

The ramifications of this decision will require more reflection and consideration, but there can be no doubt that it is an important judgment that will affect clinical negligence litigation for years to come.