Diamond v Royal Devon & Exeter NHS Foundation Trust  EWCA Civ 585
Lord Faulks QC and Laura Johnson have successfully resisted an appeal on causation in a case concerning consent to medical treatment.
The Claimant (C) brought a claim for clinical negligence arising out of spinal fusion surgery performed on 6 December 2010 and subsequent identification and repair of a post-operative abdominal hernia on 28 June 2011. Trial of the matter was heard by HHJ Freedman sitting as a High Court Judge in May 2017.
At trial there were three limbs to the case. The first, and most substantial, was an allegation that it was negligent for vicryl suture material to have been used to close the wound during the initial surgery. This allegation was abandoned by C during trial. There remained two other allegations. The first was that the spinal surgeon, Mr Khan, failed to examine C at a post-operative review consultation on 21 January 2011, causing a delay in the identification and treatment of her hernia. This claim succeeded and C was awarded £7,500 for a delay of two months in her hernia repair surgery. Finally, there was an allegation that the surgeon who performed the abdominal repair, Mr Wajed, had failed to obtain informed consent before proceeding to repair the hernia using a mesh rather than a simple suture repair (“the consent issue”). C succeeded in establishing that Mr Wajed had not given her proper information about the option of a suture repair but her claim failed for want of causation. The learned judge concluded that even if C had been given proper information she would have chosen to proceed with the mesh surgery that in fact took place. The Appeal was concerned with this part of the claim.
The Appellant pursued three grounds of appeal:
- Ground 1: In considering the issue of causation the judge was wrong to apply a test of “rationality”. Alternatively, having held that the respondent was under a duty to offer a sutured repair by way of alternative, the judge erred in holding that it would have been “objectively and subjectively… irrational” for the appellant to have accepted that offer.
- Ground 2: Alternatively, the judge was wrong to reject the claim for psychiatric injury. The appellant’s case was that she was shocked and upset to learn, at a time when she had entered into a new relationship, of pregnancy related risks to which she had never before been properly consented. It was foreseeable that the appellant may suffer shock, distress and consequential depression in such circumstances.
- Ground 3: Alternatively, if (which is denied) the claim for psychiatric injury could not succeed on conventional causation/foreseeability principles the appellant was entitled to succeed on the principle described in Correia v University Hospital of North Staffordshire NHS Trust  EWCA Civ 356. The appellant’s shock, distress and consequential depression was, at least, “intimately connected” to the failure to obtain properly informed consent.
The Court of Appeal (McCombe, Floyd and Davies LLJ) dismissed all grounds of appeal.
In respect of the first ground the court concluded:
“The judge’s approach, coupled with his assessment of the appellant and her evidence, was detailed, nuanced and insightful. It was an assessment that was properly open to him to make on the evidence before the court. The judge met the requirement set out in Montgomery in that he took account of the reasonable person in the patient’s position but also gave weight to the characteristics of the appellant herself. He did not apply a single test of “rationality” without more to the issue of causation.”
The second ground was dismissed as having no legal or factual basis:
“The appellant’s case as it was factually presented to the judge was properly dealt with, in particular when the judge found at  that it cannot conceivably be said that there was a foreseeable consequence of the alleged failure to warn about certain risks that another doctor, Mr Jones, nearly three years later would tell the appellant that it was inadvisable to become pregnant.”
The Court of Appeal also gave short shrift to the third ground of appeal, reiterating that ordinary principles of causation apply to consent cases and, with that in mind, the appeal failed in law and in fact.
This case is the fourth in a recent line of cases considered by the Court of Appeal in which claimants have attempted to argue that the case of Montgomery has somehow altered the approach to causation in consent cases, particularly when read with some of the observations of the House of Lords in the case of Chester v Afshar. On each occasion the claimant has been unsuccessful (Shaw v Kovac  EWCA Civ 1028; Correia v University Hospital of North Staffordshire NHS Trust  EWCA Civ 356 and Duce v Worcestershire Acute Hospitals NHS Trust  EWCA Civ 1307).
In this case the Court of Appeal has once again confirmed that the ordinary principles of causation apply in consent cases and that appellate judges should be slow to interfere with findings of fact made by the judge who has presided over the trial and heard all of the evidence.
You can download the judgment here: Diamond v Devon & Exeter NHS Judgment