Informed Consent: The Latest Update

In the case of Bilal and Malik v St George’s University Hospital NHS Foundation Trust [2023] EWCA Civ 605, the Court of Appeal considered the issue of how Montgomery and Bolam apply in cases relating to informed consent.

Mr Malik brought a claim for personal injury following elective spinal surgery on the basis that there was no informed consent. The surgery took place in August 2015, there was no suggestion that the surgery was performed negligently but Mr Malik deteriorated following the surgery. It was argued by Mr Malik that had he been informed of alternative treatments he would have chosen them and as such would not have deteriorated as he did.

 

At first instance, HHJ Blair KC dismissed the claim. He found that it was not negligent for the surgeon to not have discussed alternative treatments with Mr Malik on the basis that a “responsible, competent and respectable body of skilled spinal surgeons would have reasonably concluded that there were no reasonable alternative treatments available”. HHJ Blair KC also found that Mr Malik had not established on the balance of probabilities that had he been offered any other treatment he would have taken that treatment.

 

The Claimant appealed the finding. Sadly, Mr Malik passed away in the intervening period and so the appeal was pursued by his children as administrators of his estate. There were three grounds of appeal, with the latter two being dependent on the first, which were as follows:

• That the judge was wrong in law to hold that a responsible body of competent and reasonable neurosurgeons would have offered the surgery without asking or knowing the duration of the Claimant’s associated pain;
• That the judge was wrong in law to hold that the Claimant had been made aware of reasonable, alternative treatments and thus given informed consent; and
• That the judge was wrong in law to hold that causation had not been proved.

 

The Court of Appeal dismissed the appeal on all three grounds, with the leading judgment given by Nicola Davies LJ.

In relation to Ground 1, it was accepted that the surgeon had not asked how long the Claimant’s pain had been ongoing. However, the Particulars of Claim had not included an allegation that the surgeon had failed to ask about the duration of Mr Malik’s pain, and it was also not put to the surgeon during cross-examination that he should have asked. This ground of appeal therefore failed on the basis that the allegation was not “properly before the court”. This reinforces the importance of pleadings and ensuring that all allegations of negligence are properly pleaded in the Particulars of Claim and are put to witnesses during cross-examination.

 

Although the appeal failed with Ground 1, Nicola Davies LJ went on to consider the other two grounds.

As to Ground 2, it was clarified that when applying the Montgomery test which states that “the doctor is therefore under 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”, you apply the Bolam test when assessing the reasonableness of alternative or variant treatments. It is the consideration of whether any risks are material that should be judged from the perspective of the patient.

Therefore, if there is a responsible body of surgeons that would conclude that there was no reasonable alternative treatment available, then there is no duty to inform the patient of those alternative treatments. But, when considering what risks to inform the patient of, the test is whether a reasonable person in the patient’s position would be likely to attach significance to the risk. Bilal clarifies that the duty to inform of material risks and the duty to inform of alternative treatments are subject to different legal tests. Of note, the Supreme Court recently heard the case of McCulloch v Forth Valley HB, for which judgment has not yet been given, which also relates to the issues in informed consent cases such as these.

Ground 3 was also dismissed on the basis that there was no evidential basis to support the Claimant’s case.

The two key points from Bilal are the importance of pleading all allegations of negligence in the Particulars of Claim, and the clarification of the legal tests in informed consent cases.

Update: On 12 July 2023, judgment was handed down in McCulloch v Forth Valley HB [2023] UKSC 26. The Supreme Court confirmed that the correct test when deciding what is a “reasonable alternative treatment” is the “professional practice test” set out in Bolam. Therefore, a doctor who decides not to inform a patient of an alternative treatment on the basis that it is not a reasonable alternative treatment will not be negligent, provided this view is supported by a responsible body of medical opinion. This is consistent with the decision in Bilal.

 

Update by Holly Girven, a Pupil at Farrar’s Building, currently gaining experience in Chambers’ core areas, to include personal injury and clinical negligence. Holly, is now able to accept instructions to represent both claimants and defendants. For further information, please contact our Clerking Team.

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