It is increasingly common for clinical negligence claims to involve allegations around consent, but as this recent Court of Appeal judgment demonstrates it can be very hard for claimants to succeed on causation.

The facts and first instance decision

Ms Diamond underwent spinal surgery at the Defendant's hospital on 6 December 2010. Allegations in relation to this procedure were abandoned during the course of the original trial.

She subsequently developed an incisional hernia. The trial judge, HHJ Freedman, accepted the allegation of a two month delay in diagnosis of the hernia.

Ms Diamond was referred to a general surgeon who recommended a mesh repair. A different procedure (a sutured repair) was not offered, nor was an explanation given regarding any impact the mesh repair might have on future pregnancies. HHJ Freedman found that there was a failure to obtain properly informed consent with regard to the hernia repair. However, he concluded that, even if Ms Diamond had been given appropriate advice she would have opted for the mesh repair in any event.

The appeal

The grounds of the appeal were as follows:

Ground 1: In considering the issue of causation the judge was wrong to apply a test of “rationality” and wrong to conclude that choosing a sutured repair would have been irrational and that Ms Diamond would not have made such a choice.

Ground 2: Alternatively, the judge was wrong to reject the claim for psychiatric injury arising from the failure to obtain properly informed consent, as it was reasonably foreseeable that Ms Diamond would suffer shock, distress and consequential depression when belatedly advised of risks to pregnancy from a mesh repair.

Ground 3: Alternatively, if the claim for psychiatric injury could not succeed on conventional causation grounds, she was entitled to compensation for psychiatric injury on the basis that the injury was “intimately connected” to the failure to obtain properly informed consent.

The appeal judgment

In a unanimous judgment, all three grounds of appeal were dismissed:

Ground 1: The Court of Appeal found that HHJ Freedman's approach to causation was careful, thorough and appropriate. He took account of Ms Diamond's character and circumstances and did not simply apply a rationality test. Furthermore, he was entitled to conclude that it would be irrational to choose a sutured repair and that Ms Diamond would not have done so.

Ground 2: The evidence before the Court was that it was the advice provided by a third party, a long time after the index events, that caused an exacerbation of Ms Diamond's pre-existing psychiatric condition, rather than any advice given by the Defendant. The Court of Appeal endorsed the trial judge's finding that the Defendant could not possibly have foreseen that another person would subsequently advise Ms Diamond not to become pregnant.

Ground 3: This ground of appeal fell at the same factual and legal hurdles as Ground 2. Furthermore, there was no intimate connection between a failure to provide informed consent in 2011 and (potentially incorrect) advice given by a third party in 2014.

Impact

This judgment adds weight to a growing line of Court of Appeal authorities (Shaw v Kovac [2017], Correia v University Hospital of North Staffordshire NHS Trust [2017], and Duce v Worcestershire Acute Hospitals NHS Trust [2018]) that have rejected attempts by Claimants to expand the exception to the ordinary "but for" causation arising from Chester v Afshar. It is now increasingly unlikely that a Court will use Chester as a means of finding for a Claimant unless very exceptional circumstances apply.

This judgement also reinforces the already well-established rule that the Court of Appeal should be reluctant to interfere with a trial judge's findings of fact.