Should the failure to obtain a patient’s informed consent to an operation lead to an award of damages above and beyond any other award of damages that might be made? Alexander Hutton QC and Nicholas Pilsbury, barristers at Hailsham Chambers, discuss the Court of Appeal’s decision in Shaw v Kovac and another.
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The respondents (the surgeon and the hospital) consented, on an agreed basis, to a settlement of a clinical negligence claim brought in respect of the deceased by the appellant, his daughter. The agreed basis was that the deceased ought to have been told of the true risk position regarding his procedure from the outset and that, had he been so informed, he would not have proceeded any further. Damages were assessed following a three-day hearing at £15,591.83 (inclusive of interest).
The award included an amount of £5,500 for pain, suffering and loss of amenity. The appellant appealed arguing that the judge should, in addition, have awarded a sum representing a further and distinct head of loss namely compensation for what was described as ‘the unlawful invasion of the personal rights’ of the deceased and his ‘loss of personal autonomy.’ The appropriate figure suggested was £50,000.
What issues did this case raise?
The Court of Appeal was asked to consider whether the failure to obtain a patient’s informed consent to an operation should lead to an award of damages in addition to, and independent of, any award that might be made for pain, suffering and loss of amenity or financial loss.
The appellant’s argument was that every patient has the right to personal autonomy and where informed consent is not obtained then there is an infringement of that right (see Chester v Afshar  1 AC 134 and Montgomery v Lanarkshire Health Board  AC 1430 regarding informed consent). The right to personal autonomy ought to be protected by the courts. Where that right was breached, damages ought to be payable for that breach regardless of any other awards of damages that might be made. It was suggested that the appropriate figure in this case should be £50,000.
This was a novel argument and the Court of Appeal was asked to decide whether it was right that the law should be extended in this way.
What happened in this case?
Mr Ewan was 86 when he was diagnosed with aortic valve stenosis and agreed to undergo a trans-aortic valve implantation (TAVI) operation to treat that condition. Unfortunately, he died during the operation. A claim was subsequently brought by his daughter, Mrs Shaw, on behalf of the estate alleging that Mr Ewan had not been properly consented for the operation and if he had been properly consented he would not have undergone the treatment. It was alleged that Mr Ewan was deprived of several years of life.
Judgment was entered against the defendants by consent with damages to be assessed. At first instance, HHJ Platts awarded the estate damages for the pain, suffering and loss of amenity suffered by Mr Ewan as well as damages for the financial losses suffered. HHJ Platts rejected the argument that there should be a separate award for the infringement of Mr Ewan’s personal autonomy. Mr Ewan’s estate appealed to the Court of Appeal.
How did the judgment clarify the law in this area?
The Court of Appeal unanimously held that there is no freestanding head of damages for a failure to obtain informed consent and/or the infringement of the right to personal autonomy. In his judgment (with which Burnett and Underhill LJJ agreed), Davis LJ provided a detailed analysis of the types of damages that might be awarded for such a breach of duty:
there was no independent cause of action against a doctor who does not obtain properly informed consent from a patient. Absent peculiar facts that might justify bringing the claim in trespass to the person, such claims are to be brought in negligence.
Vindicatory damages, being an award of damages over and above the compensatory award to vindicate a victim’s rights, might be available where there is an egregious violation of constitutional rights, but such damages are not recoverable in a case such as the present (R (Lumba) v Secretary of State for the Home Department  1 AC 245).
Nominal damages could not be claimed. Since the claim was properly brought in negligence, proof of damage was a necessary part of the cause of action. Damage had been pleaded and proven and substantial damages awarded. There was no room for a further award of nominal damages.
It was argued for the estate that compensatory damages should be available. However, the decisions relied upon (Chester and Montgomery) did not support this. The right to personal autonomy was the foundation of the obligation upon doctors to provide proper information to their patients; when breached there would be an award of damages in the normal way (as had happened in this case). If a person’s suffering was increased by the knowledge that his or her autonomy had been breached then this could be considered in calculating the general damages payable.
A conventional award to mark the infringement of personal autonomy was also considered and rejected. A conventional award had been allowed in Rees v Darlington Memorial Hospital  1 AC 309 where, due to a failed sterilisation, parents were burdened with the obligation and cost of bringing up a healthy child. A conventional award was allowed in those circumstances because the court was not prepared to allow parents to recover the costs of raising healthy children. So a conventional award of £15,000 was allowed rather than providing fully compensatory damages. However, in the present case there was no policy bar to compensation (which had been awarded) and there was no reason to grant additional damages on top.
What are the implications of this decision?
Subject to any appeal to the Supreme Court, this decision likely spells the end for the increasingly common line of argument that there should be an additional award of damages for the failure to obtain informed consent above and beyond claims for pain, suffering and loss of amenity, and financial loss (eg see Diamond v Royal Devon & Exeter NHS Foundation Trust  EWHC 1495,  All ER (D) 20 (Jul)). There will be many cases where there has been a failure to obtain informed consent, but the patient cannot establish that they would not have had the procedure if they had been properly consented (ie no causation) and/or the procedure is a success (ie no loss). Are damages available in those cases.
It was common ground before the Court of Appeal that, as a matter of logic, if an award were made in this case, then such an award would also be available in cases where causation and/or loss could not be proven. The Court of Appeal found this to be unacceptable holding (in the context of a claim for compensatory damages) that it was ‘impossible…to see the justification for such an outcome’.
As Davis LJ posited in the context of his analysis of whether a conventional award should be available, wouldn’t such an award be available in all cases where there is an infringement of personal autonomy? And don’t most torts involve an infringement of personal autonomy? Even if limited to medical cases, why should such an award be limited to cases of major surgery? If a modest conventional award was allowed, then that would likely lead to claims farming and the proliferation of such claims. In short there were real concerns about opening the floodgates to a new type of claim. Davis LJ concluded (and Burnett and Underhill LJJ agreed):
I can see no policy or other reason for making a conventional award in a case of this particular sort. On the contrary, there is no need for it. An incremental development of the common law of the kind proposed therefore is not justified.’
Are there any grey areas or unresolved issues remaining that practitioners will need to watch out for?
Strictly speaking, the Court of Appeal was not deciding what the position would be where no causation and/or loss could be established at all in a conventional way and so their comments on these issues might be considered obiter. However, the point was considered with some care and any claimant wanting to argue that an award of damages ought to be made merely for the failure to obtain informed consent would be well advised to proceed with extreme caution in light of this decision.
Alexander Hutton QC specialises in clinical negligence and costs litigation. He acts for claimants and defendants in high value and/or complex claims and recently appeared in the Court of Appeal in Harrison v University Hospitals of Coventry & Warwickshire NHS Trust  EWCA Civ 792,  3 Costs LR 425 on the effect of costs budgeting on a detailed assessment.
Nicholas Pilsbury specialises in professional and clinical negligence. He acts for claimants and defendants in many claims against doctors, nurses and dentists arising out of a wide range of medical accidents, from birth injuries to fatalities.
In Shaw v Kovac and another, Alexander and Nicholas appeared for the successful defendants/respondents.
Interviewed by Kate Beaumont. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.