Failure to obtain informed consent does not give rise to a separate right to damages

Published 15 agosto 2017

In a significant recent decision, the Court of Appeal has unanimously confirmed that a failure to obtain informed consent does not give rise to a distinct cause of action and as such, Claimants will not be entitled to a separate or an additional damages award as a result. 

First Instance

Shaw v Kovac and University Hospitals of Leicester NHS Trust was a claim made on behalf of the Estate of Mr Ewan (Deceased). Having been diagnosed with aortic valve stenosis in September 2006, the Deceased was advised to undergo a transcatheter aortic valve implantation procedure (TAVI). He died during the procedure due to the complication of bleeding from the aorta. It was alleged that the Defendants failed to advise the Deceased of the alternatives of open heart surgery or conservative treatment.

The Claimant succeeded at first instance on the basis that, had the Deceased been warned of the risks of TAVI, he would not have undergone the procedure. In 2015, Judgement was entered against the Defendants and the Estate recovered £15,000.00 in damages for pain, suffering and loss of amenity, funeral costs and expenses. The Queen's Bench Division, however, dismissed the Claimant's submission that the failure to obtain informed consent, created a standalone right of action giving rise to a separate award for compensation. 

Given the potential importance of the decision in what the Court of Appeal stated is an important and developing area of law and medical ethics, permission to appeal was granted.

Court of Appeal

On Appeal ([2017] EWCA Cov 1028), it was argued that the Claimant should have been awarded a sum representing an additional and distinct head of loss for the unlawful invasion of the personal rights of the Deceased and his “loss of personal autonomy” based on an inadequate consent process and the decisions in Chester v Afshar [2005] and Montgomery v Lanarkshire Health Board [2015]. In the alternative, the Claimant submitted that there should be a 'conventional' award, like that ordered in Rees v Darlington Memorial Hospital [2004] (to recognise the pain and inconvenience of childbirth where sterilisation had failed).

In his leading judgment, Lord Justice Davis stated that the risk of a proliferation of such claims would have “very real, even if unquantifiable, financial, practical and other implications.” The Court of Appeal unanimously upheld the decision of the lower Court and, in summary, confirmed that:

1. There is no independent cause of action against a doctor who does not give proper advice and obtain informed consent.
2. As appropriate damages had already been paid by the Defendants, a further, standalone award would be unprecedented.
3. Allowing the award would open the "floodgates" to patients who had received excellent care despite omissions taking place during the consent process.
4. If a patient's suffering was increased by their "personal autonomy" having been invaded through a lack of informed consent, then General Damages  for pain, suffering, loss of amenity and consequential loss could, where appropriate, be adjusted to reflect this.

Comment

It remains to be seen whether the Claimant's legal team will make a further appeal to the Supreme Court on this point, but for the moment, the case is clear authority, if such were needed, that a failure to obtain informed consent will not give rise to a separate right to damages.