This is the second post commenting on the case. The first post deals with the facts of the case and the decision of the court.
Comment on causation in consent cases
In Pepper the claimant failed on causation and the court made reference to the influence of what was described as the “undoubted hindsight that she now knows that the surgery which she underwent was unnecessary because she did not have pancreatic cancer” [15].
Causation has always been a problem for claimants particularly in consent cases [16]. A claimant requires to prove on balance of probabilities had they been given the information they say they were not given this would have influenced their choice. Usually this would mean that they would not have accepted the treatment.
The onus is upon the claimant to prove the hypothetical fact and it is easy for a court to say that the claimants view on what they would have been done has been heavily influenced by what has happened to them.
The UK courts have adopted a subjective approach to questions of causation. In Chatterson v Gearson [17] and Hills v Potter [18 ]the UK courts failed to accept that the particular claimant would have declined to undergo the procedure if full information had been given [19]. Other jurisdictions have applied an purely objective approach. In Canada the courts applied a modified objective test derived from Reibl v Hughes [20] and considered what the reasonable person in the claimant’s position would have done.
In Pepper the defendants made reference to the dicta of Hutchison J in Smith v Barking, Havering and Brentwood Health Authority [21] where it was asserted that particular weight had to be given to the objective assessment. However in Smith the court on one view adopted a subjective test but employed an objective yardstick by which to test the evidence. The reality is that courts must weigh up the claimant’s evidence against objective criteria to assess the reliability and/or credibility of that evidence.
When considering causation questions the courts may use a number of factors to assess the evidence of the claimant. Evidence of what patient’s normally do when advised of risks of a particular procedure has been considered [22] but care must be taken with this approach. What patients normally do is not predictive of the particular patient and historically patients have been making decisions without full information [23].
The assumption appears to be that the greater the trust a patient has in the doctor the more likely it is the patient will accept the advice of the doctor. [24] However this must be specific to the particular patient and in modern times patients are less likely to place their trust unquestionably in the hands of the medical profession.
Where there are special circumstances relevant to the particular patient this can be relevant. Where a patient has undergone procedures previously and demonstrated to be either risk adverse or wary of incurring risk this may be useful. In Holsgrove v South West London Strategic Health Authority [25] the court took into account the fact that there had been a previous experience of shoulder dystocia. In FM v Ipswich Hospital NHS Trust [26] it was important that the mother would have avoided a repeat vaginal birth given her previous experience. In Jones v North West SHA [27] the issue was whether the claimant would have proceeded with a caesarean section as she was a Jehovah’s Witness and there was a risk of bleeding. In SXX v Liverpool Women’s NHS Foundation [28] the fact that there was a family history of fetal death was held to be relevant to the court in assessing what choice would have been made.
The court will consider the risks associated with any option a claimant states they would have chosen and balance this against the procedure undertaken [29] Where the Claimant has a life threatening condition if untreated and there is no time to seek a second opinion it will be difficult to persuade a court that a claimant would wish to delay treatment [30].
It has always been considered that where a claimant was warned of some risks but not all of the risks of a procedure and would have declined the surgery had they been aware of the totality of the risks that the claimant could recover damages. This would be so even if one of those known risks did not materialise [31].
In Australia in Wallace v Kam [32] the surgeon failed to warn the claimant about two distinct material risks inherent within a procedure. One risk was that of neuropraxia and the other was on 1/20 chance of permanent and catastrophic paralysis. The claimant said if he had been warned about the risk of neuropraxia he would have proceeded with the surgery, but had he been advised of the risk of paralysis he would not have proceeded with the surgery. Following the surgery he developed neuropraxia and it was argued that causation was established as he would not have proceeded with surgery if fully informed. The High Court of Australia found that whilst factual causation was established the scope of liability did not extend to the situation where he would have undergone the surgery in relation to the risk that materialised.
Care must be taken when looking at Australian causation cases as they not only have the common law but also have statutory provisions. Wallace v Kam was the first High Court decision following the civil liability legislation’s causation provisions [33]. Following a review of the law of negligence in Australia there was an introduction of civil liability legislation through the enactment of the Civil Liability Acts. The Australian courts require more than proof of factual causation to establish liability. It also requires that the defendant be responsible in those circumstances (scope of liability test). Wallace was applied in Neville v Lam [No.3.] [34].
Montgomery and Causation
In Montgomery v Lanarkshire Health Board it was argued that if the court was proceeding on the basis of the traditional “but-for” test the causation should be approached on a mixed subjective/objective basis. The claimant’s evidence on what they would have done had they been informed can be tested against other evidence.
Nadine Montgomery stated in evidence that had the risks of mechanical problems in labour/shoulder dystocia been explained to her she would have wished a caesarean section. This evidence was then tested against other evidence. In the original trial in the Outer House of the Court of Session it was argued that the traditional “but-for” test of causation was satisfied but the court did not accept this. It was not suggested that there was any intentional deception but simply that Nadine’s genuine view had been affected by what had happened to Sam. It was however recognised that there required to be a balancing of the evidence whereby Nadine’s evidence required to be tested against certain facts.
When the case proceeded to the Appeal Court in Scotland it was argued that in information disclosure cases where it had been established that there had been a failure to provide information the “but-for” test should be replaced by strict liability on the basis that the courts required to protect the right of the patient to make a fully informed choice. This interest deserved protection in its own right and should be compensated. The Canadian courts have looked at the question of breach of a fiduciary duty in such situations [35]. This argument was not accepted and was not taken forward to the Supreme Court.
In the Appeal Court in Scotland and also in the Supreme Court it was argued that consent is a defence and like other defences this should be raised and proved by the defender/defendant. There should be no burden placed upon a claimant and particularly when they had proved a failure to provide information necessary to make an informed decision.
In Nowsco Well Service v Canadian Propane Gas & Oil Ltd [36] it was said that if causation is overwhelmingly difficult or impossible to prove, then as a matter of public policy or justice it is the creator of that risk who should be put to the trouble of hurdling the difficulty or bearing the consequences. Other jurisdictions have recognised this shift of the burden of proof [37]. In Clark v McLennan [38] it was said that where there is a failure to take a precaution and the damage that occurs is the type of damage the precaution is intended to avoid then the burden lies upon the defendant to show that the damage did not result from his breach of duty.
In Montgomery the Supreme Court did not require to consider the reversal of the burden of proof argument as causation was established on traditional grounds applying subjective test to the evidence to the evidence of Nadine Montgomery which was then tested by objective criteria [39]. The decision emphasises that questions of hypothetical causation in consent cases require to be carefully linked with the options, and the risks and benefits of each option.
Chester v Afshar
In Pepper, there was reference to the decision in Chester v Afshar [40]. Chester v Afshar applies where the claimant establishes that he/she would have deferred a decision to proceed with surgery but is then unable to say what she would have done given the hypothetical nature of the question.
In Chester the claimant underwent spinal surgery and developed cauda equina syndrome, a recognised risk of the surgery. She had not been informed of the risk of cauda equina syndrome occurring. It was accepted that had she been warned of the risk she would have deferred surgery and would have sought a second or third opinion. There was in her case no urgency to perform the procedure. The claimant did not argue that she would not at any time have had the surgery. The defendant had argued that to succeed the claimant required to establish that she would not have gone ahead with the surgery at any time.
By a bare majority the House of Lords upheld the decision of the Court of Appeal applying the reasoning found in the Australian case of Chappel v Hart [41].
Chester does provide some hope for Claimants who continue to be required to bear the causative burden in consent cases. However on one view Chester does not go far enough to right the wrong of placing the legal burden of proof upon claimants in these cases. In White v Paul Davidson & Taylor [42] it was said that Chester did not establish a new general rule on causation but was an application of the principle in Fairchild v Glenhaven Funeral Services Ltd [43] that in exceptional circumstances rules of causation may be modified on policy grounds.
In Chester Lord Hope saw the function of the law as enabling rights to be vindicated and to provide remedies where duties have been breached. On policy grounds he held the test of causation as satisfied but it was particular to the circumstances of the case. It did not reverse the burden of proof.
The issue had been considered in McAllister v Lewisham and North Southwark Health Authority [44] where the claimant was unable to say what she would have done if properly informed other than she would have postponed the operation. The court found that she would have declined the operation and it was said because the claimant was reluctant to hypothesise this should not prevent the court from considering whether there was sufficient to make a determination.
In Duce v Worcestershire Acute Hospitals NHS Trust at paras [86]-[87] with reference to Lord Hope’s judgement it was said that Chester did not intend to set out a free standing test, but rather circumstances which justify the normal approach to causation being modified.
The majority decision in Chester does not negate the requirement for a claimant to demonstrate “but for” causative effect of the breach of duty. It is worthy of note that in Correia v University of North Staffordshire NHS Trust [45] the court emphasised that if “the exceptional principle of causation” established by Chester is to be relied upon it is necessary to plead and prove that, if warned of the risk the claimant would have deferred the operation.
Conclusion
Questions of causation continue to be a significant hurdle for claimants in consent cases. There is no doubt that if a court applied a purely subjective approach to questions of causation there is a danger of self-serving testimony. A purely objective approach requires the court to ignore the individual patient’s view if it does not accord with the view of the hypothetical patient. It is suggested that the starting point must be what the individual patient would have done against the correct factual background. However, the objective test can be used to test the evidence of the claimant. Whatever method is used to approach causation the real question must be why the burden of proof in consent cases rests with the claimant.
[15] Para 37
[16] See A Guide to Consent in Clinical Negligence Post-Montgomery, Lauren Sutherland QC, Law Brief Publishing, Chapter 6 Causation in Consent Cases
[17] [1981] Q.B.432
[18] [1983] 3 All E.R. 716
[19] See also Blyth v Bloomsbury Health Board, unreported 1 Jan 1985, rev’d on other grounds (1987) CA (1989) 5 P.N. 167; Moyes v Lothian Health Board [1990] 1 Med.L.R. 463
[20] (1980) 114 D.L.R. (3d) 1nat 15-17
[21] [1994] 5 Med LR 285 at 289
[22] Jones v North West SHA [2010] EWHC 178 (Q.B)
[23] L Sutherland (2015) 126 Rep Bulletin 6
[24] Meiklejohn v St George’s Healthcare NHS Trust [2014] EWCA Civ 120; Moyes v Lothian Health Board [1990] 1 Med. L.R.
[25] [2004] EWHC 501 (QB)
[26] [2015] EWHC 775 (QB)
[27] [2010[ EWHC 178 (QB)
[28] [2015] EWHC 4072 (QB)
[29] See A v East Kent Hospitals University NHS Foundation Trust [2015] EWHC 1038 (QB); Smith v Barking, Havering and Brentwood Health Authority (1988) [1994] 5 Med.L.R. 285; Diamond v Royal Devon & Exeter NHS Foundation Trust, [2017] EWHC 1495 (QB)
[30] King v South Eastern Area Health Service [2005] NSWSC
[31] Moyes v Lothian Health Board [1990] 1 Med.L.R. 463
[32] [2013] HCA 19
[33] Civil Liability Act 2002 (NSW)
[34] [2014] NSWSC 607
[35] Arndt v Smith [1995] 7 W.W.R. 376 at 386-87 (B.C.C.A.)
[36] (1981) 122 D.L.R. (3rd) 228
[37] Senney v Crooks (1986) 166 D.L.R. (4th) 337 (Alta.C.A.)
[38] [1983] 1 All E.R. 416, QBD
[39] Chapter 6 p325 A Guide to Consent in Clinical Negligence Post-Montgomery, Lauren Sutherland QC
[40] [2004] UKHL 41
[41] [1998] HCA 55
[42] [2004] EWCA Civ 1511
[43] [2002] UKHL 22
[44] [1994] 5 Med.L.R. 343, QBD
[45] [2017] EWCA Civ 356
