Barrister, Ella Davis, and retired barrister, Giles Eyre, consider clinical negligence claims in relation to consent, and what matters an expert witness should address.
The Supreme Court decision in Montgomery v Lanarkshire Health Board  AC 1430 fundamentally changed the law in relation to consent. Thereafter, experts are no longer asked to consider Bolam principles when advising in cases where the issue is whether consent was properly obtained. But what can they be asked to consider? This article looks at what is and what is not within the remit of experts.
It is now seven years since the Supreme Court handed down judgment in Montgomery v Lanarkshire Health Board  AC 1430, and expert evidence is still critical to bringing and defending claims in relation to the obtaining of consent. The expert’s role, though more limited when applying Montgomery than the Bolam test, remains important, but not always fully appreciated by lawyer and clinician alike.
Advising of risks and benefits
When the court is considering whether a doctor’s treatment or diagnosis of a patient was negligent, it will of course apply the Bolam test. Expert evidence will, in practice, often be determinative of that issue. Evidence that the treatment or diagnosis would be supported by a responsible body of clinicians (provided per Bolitho v City and Hackney Health Authority  AC 232 that such evidence is capable of withstanding logical analysis) will, if accepted, be sufficient to establish a defence. However, this is not so when considering whether there was a negligent failure to obtain informed consent.
When obtaining informed consent to treatment, clinicians owe “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” (see Paragraph 87 of Montgomery). The Supreme Court in Montgomery noted the fundamental distinction between the doctor’s role when considering possible investigatory or treatment options on the one hand, and their role in discussing any recommended treatment and possible alternatives, and the risks of injury which may be involved, on the other. The former role is an exercise of professional skill and judgement. In contrast, when advising the patient in order to obtain consent to treatment, this is not solely an exercise of medical skill and responsibility, because determining the nature and extent of a person’s rights rests with the courts, not with the medical professions.
In Duce v Worcestershire Acute Hospitals NHS Trust  EWCA Civ 1307, the Court of Appeal identified the existence of a two-part test when considering the obtaining of consent to treatment:
- What were the risks associated with an operation or procedure which were or should have been known to the medical professional in question? That is a matter falling within the expertise of medical professionals.
- What should the patient have been told about such risks, that is what were the material risks of which the patient should have been made aware? That is a matter for the court to determine. It is not the subject of the Bolam test and is not something that can be determined by reference to expert evidence alone.
It follows, therefore, that experts should no longer be commenting on what risks and benefits a responsible body of clinicians would discuss with the patient. Instead, they should be asked to give an opinion as to:
- What, in fact, the risks and benefits of a particular treatment are, both to patients generally and this patient in particular, and how likely they are to happen
- Whether these were or should have been known to clinicians at the time of treatment.
This evidence will then inform the court’s decision as to whether there was a failure to warn of a material risk.
The Court of Appeal did not, in Duce, explicitly address the standard to be applied where the court is considering what risks associated with an operation were or should have been known to the medical professional in question. However, it would appear that, when addressing what risks associated with an operation were or should have been known to the medical professional in question, this logically requires consideration of what the reasonably competent practitioner would have known and, therefore, is a matter to which the Bolam test will apply (see for example paragraphs 83 and 84 of Montgomery).
Reasonable alternative treatments
The issue of how the courts should determine whether an alternative treatment – which includes no treatment – was reasonable was left open by Montgomery. One possibility is that this is an issue to be determined by reference to the Bolam test, and thus is again a matter for the medical profession (as to what the reasonably competent practitioner would regard as a reasonable alternative treatment). However, this argument seems, at least for the time being, to have been rejected following the High Court decision in Bayley v George Eliot Hospital NHS Trust  EWHC 3398 (QB). HHJ Worster (the trial judge in Duce), held that it was implicit from the judgment of Lords Kerr and Reed, and explicit in the judgment of Lady Hale, that whether or not the doctor was negligent in failing to inform the patient of a reasonable alternative treatment is not to be determined by the Bolam approach. However, he pointed out that there was no express guidance in Montgomery as to what is a “reasonable alternative”.
HHJ Worster considered that he was assisted by considering the approach of the courts in previous cases to the process of assessing what constitutes a material risk. He noted that the issue was not one resolved simply on the expert evidence, but upon an assessment of all the relevant expert evidence. While expert evidence is likely to be a factor, sometimes an important factor, each case will turn on its own facts. Having decided that there was not one threshold at which a treatment became a reasonable alternative, HHJ Worster held that this must be a decision which is sensitive to the particular facts and circumstances of any given case. In his judgment, in that case at least, relevant factors included the patient and her condition at the relevant time, her treatment, the state of medical knowledge about the proposed alternative treatment, and the published papers. Expert evidence will be relevant and helpful to some, but not all, of these factors.
It follows that, in the current state of the law, experts can (most probably) usefully and legitimately give evidence as to:
- The state of medical knowledge of a proposed alternative treatment, including the likelihood of risks or benefits arising from it or from no treatment
- The existence of any relevant literature or guidelines about such alternative treatment
- The likely suitability of a particular treatment for the particular patient.
They may also be able to assist the court in relation to the availability of the treatment at the relevant time, although this may be a matter for other factual evidence. Once again, however, their opinion as to whether or not a responsible body of clinicians would or would not have advised of the existence of an alternative treatment will be far from determinative of that issue.
An important issue in most consent cases, is what a claimant would have done if they were given correct (non-negligent) advice. If given the correct advice, or if properly consented, would the claimant have made a different choice and, as a result, experienced a different physical outcome? It is not for the expert to express an opinion on this point, although some experts do. This is a finding of fact for the court and not an issue for the expert.
However, that does not mean that experts have nothing to contribute to issues of causation. An expert could:
- Give detailed evidence as to the risks and benefits of any alternative treatment, assisting the court in its task of weighing up the likelihood that the claimant would instead have opted for that alternative
- Express an opinion as to the likely outcome if the claimant had chosen to do nothing
- Provide evidence of what, in their experience, most patients do when properly advised offering some, although relatively limited, value in assisting the court decide in that particular case what this claimant would have done.
The extent to which Bolam continues to be relevant to issues of consent is not entirely clear. What is clear, however, is that reports simply expressing an opinion as to whether there is a responsible body of clinicians who would or would not have advised of a particular risk or alternative treatment are inadequate and do not address the correct tests.
Experts have a valuable role to play in claims arising out of the issue of consent, but there is sometimes confusion, on the part of lawyers and clinicians, as to what that role is. The expert’s instructions should set out the correct focussed questions for the expert to address when preparing a report, but that is not always the case. The instructing lawyer should ask the expert to remove from the report any opinions which are outside the expert’s role in such case and which, therefore, trespass inappropriately on the court’s decision-making, but again that does not always happen. Therefore, it is important for the expert to understand the legal tests which should be addressed in preparing opinion in such cases, and, therefore, the questions that they can properly address, as we highlight in this article.
An expert’s opinion, when advising on a claim relating to the obtaining of appropriate consent to treatment, should address, depending on the specific facts of the case:
- What were the risks and benefits of a particular form of treatment, both to patients generally and this patient in particular, and how likely they are to happen.
- Should these risks and benefits have been known to clinicians at the time of treatment.
- What was the state of medical knowledge at that time of a proposed alternative treatment, including the likelihood of risks or benefits arising from it or from no treatment.
- What, if any, relevant literature or guidelines existed in relation to such alternative treatment.
- How suitable the alternative treatment was for the claimant.
- How available was such alternative treatment at the relevant time.
- What was the likely outcome if the claimant had declined treatment and chosen to do nothing.
- What, in the expert’s experience, most patients do when advised properly about the risks and benefits of a treatment or alternative treatment or no treatment.
Ella Davis is a barrister practising at Deka Chambers, London. She has a broad civil practice with a particular emphasis on clinical negligence and personal injury. She acts for claimants and defendants in a wide range of clinical negligence claims acting as junior counsel in high-value and complex claims.
Giles Eyre is a retired barrister and an Associate Member of Deka Chambers, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.co.uk) and through book retailers, and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net.
Special Offer: ‘Clinical Practice and the Law – a legal primer’ (normal price £34.95) is available at £19.95 plus £4.95 p&p. and ‘Writing Medico-Legal Reports in Civil Claims – an essential guide’ (normal price £69.95) is available at £50.00 plus £4.95 p&p only direct from the author by email to firstname.lastname@example.org. More information about the books and reviews are available at www.Medico-LegalMinder.net.