"Please sir, may I have some more [damages for failure to consent]?" No, says the Court of Appeal.

The Court of Appeal has unanimously confirmed that a failure to obtain informed consent does not give rise to a separate or additional award of damages.

The recent decision by the Court of Appeal in Shaw v Kovac and University Hospitals of Leicester NHS Trust [2017] EWCA Civ 1028 will come as welcome relief to Defendants and their Insurers.

Unless there is a successful appeal to the Supreme Court, this decision is likely to spell the end of the increasingly common argument that there should be an award of damages for a failure to obtain informed consent, in addition to, and independent of, any award of damages for pain, suffering and loss of amenity.

The Facts

The claim was brought by the daughter of Mr Ewan (Deceased) on behalf of his Estate. Mr Ewan was diagnosed with aortic valve stenosis in September 2006, and was advised to undergo a transcatheter aortic valve implantation procedure (TAVI). Sadly, Mr Ewan died during the procedure due to the complication of bleeding from the aorta. It was alleged that the Defendants had failed to advise the Deceased of the alternatives of open heart surgery or conservative treatment.

First Instance

The Claimant succeeded at first instance on the basis that, had the Deceased been warned of the risks of TAVI, he would not have undergone the procedure and therefore he would not have died when he did. The Claimant recovered £15,000.00 in damages for pain, suffering and loss of amenity, funeral costs and expenses. The Claimant also argued that the failure to obtain informed consent should result in a separate, additional award for damages. That argument was dismissed.

Appeal

In granting permission to appeal, the Court of Appeal stated that the failure to obtain informed consent was an important and developing area of law and medical ethics.

At the appeal hearing, it was argued that the Claimant should have been awarded a separate, additional sum for the Deceased's “loss of personal autonomy” based on an inadequate consent process and the decisions in Chester v Afshar [2005] and Montgomery v Lanarkshire Health Board [2015].

The Court of Appeal unanimously upheld the decision of the lower Court and, in summary, confirmed that there is no independent cause of action against a doctor for failing to obtain informed consent. The Judges found that allowing the award would "open the floodgates" to patients who had received excellent care despite omissions taking place during the consent process. In his leading judgment, Lord Justice Davis agreed that the risk of a proliferation of such claims would have “very real, even if unquantifiable, financial, practical and other implications.”

Summary