GUIDE TO GEMMA TURTON’S ARTICLE INFORMED CONSENT TO MEDICAL

TREATMENT POST- MONTOGOMERY: CAUSATION AND COINCIDENCE

The law on non-disclosure of risks prior to Montogomery

In non-disclosure of risk cases, the elements under negligence namely duty, breach of duty
and causation must be satisfied. There is a duty of a doctor to disclose to information to his
patient. has The doctor would be a breach of his duty if he has failed to make a reasonable
disclosure of the risks. In Sidaway v Board of Governors of the Belthem Royal Hospital it
was held that in order to decide whether a reasonable disclosure has been made the Bolam
test applies. It states that the doctor is not in breach of his duty if he has explained the risks
in the manner accepted by a responsible body of medical men. The final act of negligence,
which is causation is twofold: factual causation and legal causation. The factual causation
refers to the but for test where there should be a link between the non-disclosure and the
materialization of the risk. Legal causation is a normative inquiry, as to whether the
Defendant should be held responsible in the circumstances and whether the harm is
foreseeable. Remoteness and legal causation have been put together. Modifications to the law
of non-disclosure of risks came in the case of Chester v Afsar (2004) the surgeon had
negligently failed to warn the risks of the operation. There was evidence that the Claimant
would have undergone the surgery but on a later date. The House of Lords held that
causation was established although there was no causation based on conventional principles,
to develop a professional standard on the patient’s right to weigh various treatment options.
This culminated in the standard of disclosure set out in Montgomery.
In Montgomery v Lanarkshire Nadine Montgomery, a woman with diabetes and of small
stature, delivered her son vaginally; he experienced complications owing to shoulder
dystocia, resulting in hypoxic insult with consequent cerebral palsy. Her obstetrician had not
disclosed the increased risk of this complication in vaginal delivery, despite Montgomery
asking if the baby’s size was a potential problem. Montgomery sued for negligence, arguing
that, if she had known of the increased risk, she would have requested a caesarean section.
The Supreme Court held that Sidaway should not longer be followed and therefore in non-
disclosure of risk scenarios the test to determine the standard of care should not be the test
laid down in Bolam . The new standard of care requires

 the doctor to take reasonable care to ensure that the patient is aware of any material
risks in any recommended treatment, and of any reasonable alternative or variant
treatment.
 The test of materiality is whether, in the circumstances of the case, a reasonable
person in the patient’s position would likely to attach significance to the risk, or the
doctor should be aware that the particular patient would likely to attach significance
to it.
 The exception to the duty is if the doctor reasonably consists that the disclosure of
risk would seriously be seriously detrimental to the patient’s health, or in the
circumstances of necessity.
The standard of care relates to what a patient would want to know rather than what a
reasonable doctor would think should be disclosed. The focus should be on a patient. The
doctor must decide what is significant to a patient and help him understand the relevant risks.
Members of the public are well informed about symptoms, medical treatment options through
media as the internet, support groups and leaflets. Therefore, it is wrong to say that they will
not be able to understand medical matters.
The concern is not simply the provision of information but facilitating understanding of the
information. Montogomery further requires not only an explanation of the risks and benefits
of treatment, but also alternatives, including non- treatment and the comparative risks and
benefits. Thereafter, it is for the patient to decide with reference to his own values whether
he/she should proceed with the surgery despite the risk implications. However, if the patient
does not want to know about the risks, and if it is made clear, then the doctor is not required
to discuss them. This points to the centrality of respect for the patient’s autonomy and
dignity.

The conception of Autonomy underpinning Montogomery

Coggon refers to three types of autonomy:

 Ideal desire autonomy: what a person should want; measured by reference to some
purportedly universal or objective standard of values
 Best desire autonomy captures a decision that refers to a person’s overall desire given
his own values, even if its contrary to his immediate desire
 Current desire autonomy reflects a person’s immediate inclinations ie what he thinks
he wants in a given moment without further reflection
Despite the emphasis on patient autonomy, the Court of Appeal in Correia v University of
North Statffordshire NHS trust confirmed the issue of informed consent was not engaged
when the negligence arose in the performance of the operation. Although Montgomery
protects current desire autonomy where an individual is free to choose to make decisions, she
feels like making at the time regardless of whether the decision is in her best interest, it is
primarily aimed to promoting best desire autonomy. Best desire autonomy gives the
individual the opportunity to reflect and decide according to their own values. The fact that
current desire autonomy is not the most appropriate type of autonomy for cases relating to
disclosure of risk is clearly illustrated in the case of Al Hamwi v Johnsoton where a doctor
was not liable on the basis that he had given the choice to his patient but the patient was left
to make an entirely uninformed decision. The capacity required by the patient is not to make
a choice but not a fulfilling choice.Best desire autonomy matches the type of autonomy in
Chester, where it was important that the patient had an opportunity to reflect on the risks
before giving or withholding consent. It is important that the conception of autonomy adopted
at the breach of duty stage is subsequently reflected at the causation stage. On a traditional
approach of causation, best desire autonomy is useful as it could reflect the refusal of
treatment on wider values and priorities.
As autonomy is central in non-disclosure cases, the issue is where there is a shift in focus
from being a duty to be a right of the patient to being informed. Within the Holfedian
framework of correlative rights and duties, neither the right nor the duty are analytically
prior. In this context, rights and duties reciprocate each other. One person’s right is another
person’s duty. Nothing has changed but only the emphasis has been changed as the
formulation of the Defendant duty is focused on the rights of the patient. What is more
important, is the increase in subjectivity introduced by the ‘ particular patient’ aspect of
standard disclosure , what should the doctor do to make himself aware of the particular
patient’s concerns. If this subjective approach is used, it would distort the foundations of
negligence which has been committed to objectivity.

Causation : Post Montgomery

In England and Australia the approach to factual causation is subjective. The test is whether
the claimant would have refused the treatment if she had been properly warned about the
risks involved. In contrast, in Supreme Court of Canada in Reibl v Hughes the modified
objective approach has been applied which asks what a reasonable person in the patient’s
position would agree to.

Gemma Turton recommends that this approach is not applied by the UK law for two reasons
firstly, the modified objective approach is based on a misunderstanding of the subjective
approach. Jackson identifies the modified objective approach as a ‘control mechanism’
which simply limits the number of successful claims and its adoption will not be a welcome
development, either for patient rights or ``1for the coherence of negligence law. The
Canadian approach ignores the requirement that the claimant must establish their case on the
balance of probabilities. It is not enough for a claimant to say that they would have refused
the treatment ; they must be able to point to extrinsic evidence indicating that there is truth to
this. In Riebl where the claimant was able to show on the modified approach , that he would
have delayed the operation had he known about the risk in order to work longer so that he
could receive the pension benefits. This external factor would have also affected the decision
of a reasonable person. Its likely that if the subjective approach or the modified approach is
used, the outcome would be the same. However, one point of divergence is the attitude taken
to the Claimant’s belief’s rather than her external situation. In Videto v Kennedy in the
Ontario Court of Appeal, the claimant suffered bowel perforation during a sterilisation
operation and the reparative surgery resulted in a scar. She had not been warned about the
risk of perforation and scarring , and claimed that she would have refused the operation has
she known because as a catholic she did not wish anyone other than her husband to know that
she had been sterilised. The court suggested that it would be inappropriate to consider her
personal concerns. This indicates that the modified objective approach leans towards an ideal
desire version of autonomy.
This can be contrasted with the position in England and Australia where claimant’s testimony
as what he could have done is admissible if the non-disclosure of risks had worked against his
own interests. In Smith the patient’s religious or other strongly held convictions and domestic
social considerations are listed among the kinds of extraneous factors that may support the
claimant’s assertions.

Chester and Chappel : A problem of Factual or Legal Causation

In Chappel v Hart the Claimant, Mrs Hart , underwent an operation without negligence by
the defendant surgeon. During the operation, her oesophagus was perforated and an infection
developed which led to paralysis of the right vocal cord, meaning she suffered injury to her
voice. The Defendant had negligently failed to warn her of the risk, if properly warned she
would not have refused the operation entirely but would have delayed it in order to engage
the most experienced surgeon possible. Kirby J held that on’ intuition and common sense
suggest that greater the skill and more frequent the performance , the less risk of perforation.
As regards in factual causation, the risk was very low and thus the probability of the risk
would materialize is low. Thus, the risk of materializing on a later date would also have been
low. If we apply , the but for test if the harm would have happened if the risks are disclosed
and she had waited another time to have the operation? The answer would be no. Factual
causation is established. It is how we statistical information. Alternative view is that the risk
would have been same whenever she took the operation, the harm would have probably have
materialized at the later date. Clark and Nolan illustrate the absurdity of this view : if you
throw a dice and get a 6 , does not make it any more likely to get a six. This argument would
be tenable if the risk was connected to the particular patient to make the patient more
susceptible to risk than others. However, that was not the case in Chester and Chappel. The
English courts have recognized the right to do it in Crossman the but for test was satisfied:
the court pointed out that the patient was unlucky. This case, similar to Chester failed to
recognize that the real issue is not factual causation.
The real issue is not in factual causation but legal causation. Legal causation cannot be
established as the non-disclosure were the injury coincidental. Turton considered that in
Chester there was no legal causation. She referred to Hart who brought the example of a
passenger in a previously speeding car who was then killed by tree falling on him. It’s a
coincidence if the Defendant’s wrongdoing did not increase the risk of other event and the
conjunction of the two events are very unlikely.
The philosopher Owens argues that it is a coincidence where two events happen without a
common cause. Lando states that two events may be considered as a coincidence even if they
share a common cause. For ex: a boy playing with a ball, he throws a ball and bounces on
each balcony where there were two pianos and the ball struck the note A on both, this would
be considered as a coincidence. Lando states that there must be a distinction between
causation and causal explanation. Factual causation refers to the but for test. Causal
explanation is legal causation. Which deals with the example as to why the two notes are the
same. Therefore, getting A twice is probabilistically independent. For ex the falling tree is
probabilistically independent i.e. where one cause does not affect the cause of the other one
happening.
Turton goes on to see how this definition apply in hypothetical situations are given in Chester
and Chappel whether the operating theatre is struck by lightning, the patient is harmed by an
unforeseeable risk of anaesthesia or a hospital acquired illness. She criticizes the view of O
Sullivian and some of the judges in Chester that although aforementioned hypothetical
situations are not obvious coincidences it seems appropriate compromise to exonerate the doc
for all the consequences apart from precisely those about which he should have been warned
about . She considered that this solution based on the notions of fairness is unsatisfactory and
unprincipled.

Whether the two events share a common cause is irrelevant- the question is if one event has
increased the probability of the other risk. If the answer is yes? the risk is not coincidental.
Thus, the non-disclosure only affects the degree of risk if the patient would have taken steps
to reduce the risk. Merely postponing the operation does not affect the degree of risk, so its
materialisation is coincidental. Clark Nolan criticized this approach. It should be an ex ante-
decision analysis that is to say that the decision as to whether the risk is a coincidence or not
should be looked at in advance from the time of non-disclosure not an ex posting decision
that looking back at as to whether the harm would have materialized. Turton viewed
causation as an ex-post approach. It was appropriate to ask whether, as things turned out, the
risk of damage was increased by the claimant. This is illustrated in the case of Paul v Cooke
where a negligent misdiagnosis led to a delay in treatment for the patient. When she did have
treatment, she suffered serious injury. The claim failed here. The misdiagnosis clearly the
exposed the gjvb from an ex ante perspective to certain risks including the risk that the
condition may get worse before she had the operation. The risk when she did have it,
increased the possibility of harm. However, in the ex post inquiry as it turns out looking
back, in fact her condition did not worsen. The risk of the treatments when she did have it
were no different to from the risks earlier on, when she should have it. The case of Paul v
Cooke unlike in Chester and Chappel is not a non- disclosure case, but the same principle
should apply. In non-disclosure cases, ex ante approach, the non-disclosure clearly increases
the risk of harm to the patient but in an post approach it only affected the degree of risk if the
patient would have decline the operation or otherwise sought to have reduce the risk.
Clark and Nolan have a different version of coincidence. Their view is that something is a
coincidence unless avoiding the risk of harm in the circumstances was the purpose of the
defendant’s duty. They say that therefore the speeding motorist is not liable to a passenger
when a tree falls on his car. Although the factual causation is satisfied, the motorist did not
have as one of his purposes the avoidance of harm.
In cases of medical non-disclosure purpose is to avoid the risk of harm only in the following
circumstances:
Where, if the risk had been disclosed-

 P would have refused treatment entirely,

 Would have taken steps to reduce the risk involved as in the case of Chappel where if
the risks had been disclosed the patient would have got a skilled surgeon, which
would reduce the possibility of risk
 Where the patient would have deliberately would have chosen to delay to a later date.
For example, in Ribel the patient deliberately delayed the operation to gain on
pension. for financial reasons. The situation excludes Chester is excluded because the
patient was not deliberately choosing the delay and the patient’s choice was to take
time to reflect or seek a second opinion. The delay is a by product of this.

Gemma Turton stated that her definition of coincidence would yield the same outcome as
Clark and Nolan. The materialisation of a risk where the patient wanted to delay the operation
would be coincidental regardless of whether the delay was for purely for a financial purpose.
Therefore, this could Chester. It seems strange to conclude that the physical harm is not
coincidental simply because the Claimant would want to avoid financial consequences when
she was willing to run the physical harm itself. She criticized Clark and Nolan of linking
legal causation to the purposes of duty considering the apparent expansion of the doctor’s
duty to disclose to protect patient’s autonomy rather than just her physical wellbeing. The
case of Montogomery emphasised the individual patient’s concerns who should weigh up the
pros and cons of surgery, non- clinical issues such as the patient’s characteristics such as his
beliefs. Thus, she questioned as to why a decision to delay should only be motivated by
financial reasons. It could perhaps be motivated by non-financial reasons such as to delay the
surgery till the children grow up or not to miss an upcoming trip. The situation in England
from the position in Australia. The Australian case Wallace v Kam is directly on the
avoidance of physical harm. Montgomery concerns with right to protect patient’s choice itself
with her own values. This would pose as a problem as autonomy is not recognised as a
protected harm. Thus, Turton’s definition of coincidence does not suffer such defects. She
acknowledges the fact that the physical harm that is the damage forming a negligence
action. Her definition does not relate to purpose but to the physical outcome which is treated
as central in Montgomery
The author of the article states that if Clark and Nolan’s definition is to be used, a distinction
between the scope of duty and from the scope of liability. This approach was used in Wallace
where the court explained that policy considerations informing each are different. It therefore
does not necessarily expect that those that fall within the scope of duty will fall within in the
scope of liability. The scope of duty serves to guide doctors as to what they should do to
protect the patient’s autonomy following the subjective approach used in Montogomery,
where it would fall outside the scope of liability if the patient irrespective of non-disclosure
would have accepted the risk. Otherwise, it would undermine the function of negligence
which is an allocator of responsibility and not a manner of vindicating rights by providing
remedy for rights getting affected.
To apply the causation tests properly, it must be decided the weather risk involved in the
operation can in fact be broken down and treated as two or more separate risks. If treated as
separate risks, it could be that risk that materialised was the risk plaintiff would have
accepted to take. The risk that would have made her refuse the operation has not materialised.
The court used the scope of duty and scope of liability argument. The scope of duty had been
satisfied due to his failure to warn but it would not fall within the scope of liability if the risk
which materialised was the one that had been disclosed. For Wallace for example – the risk
that materialised was one which the patient had been warned about. In Wallace the
complication arose because the defendant doctor had negligently failed to warn the patient
about two risks, the risk of bilateral femoral neurapraxia which involves temporary paralysis
due to damage to the nerves in the thigh as a result of lying on the operating table for an
extended period, and the risk, assessed as one of twenty, of permeant and catastrophic
paralysis due to damage to spinal nerves during the operation. The risk that mineralised was
the temporary paralysis. If the claimant had been warned of the lesser risk which actually
materialised so the claimed failed at the scope of liability stage .In other words, the claimant
would not have undergone the operation if the doctor fulfilled his duty by warning of both
risks, but would still have undergone the operation had he been warned only of the risk that
actually materialised. The court felt able to make this distinction between the risks because
they were described as distinct to nature developed as involving two events which are
probabilistically independent. What basis should we treat risks as separate? The court in
Wallace decided whether there is a single physical injury to which whether there are several
contributing factors or materialisation of distinct risks.
This was correct in principle, but the author of article was concerned as to how the multiple
risks should be described. For example in Wallace both risks relate to nerve damage and
both could be understood as paraplegia. The court however focused on both types of
paraplegia were different in nature and the risks that both entailed. Temporary paraplegia was
qualitatively different to permanent paraplegia and it was easy to consider both as two
separate risks. For example in Montogomery it required a number of risks, shoulder dystocia,
postpartum haemorrhage, perineal tears, brachial plexus injury to the baby both transient and
permanent, cerebral palsy, and death— are of a different nature, and yet it would be difficult
to describe them as being distinct because the risk of each outcome depends upon the risk of
shoulder dystocia occurring in the first instance. They are not probabilistically independent—
if the risk of shoulder dystocia materializes, then the subsequent risk of each outcome is as
set out above—these outcomes arguably go to the extent of the risk. If the mother is
unwilling to accept the risk of shoulder dystocia, then she implicitly also rejects the
subsidiary risks too. Should it matter if her reasons for being unwilling to accept the risk of
shoulder dystocia all relate to her own wellbeing rather than that of the child, if the harm that
occurs is to the child? Although she is, in that scenario, willing to accept a risk of harm to the
baby, she cannot in fact accept the risk to the baby without also accepting the risks to herself
because they all stem from the overall risk of shoulder dystocia. Thus, Gemma Turton
considered that in determining legal causation there must be a distinction made between
multiple risk and a single risk.
The English courts have not appreciated this point in post-Montgomery case law. In Webster
v Burton Hospitals,131 the claimant had been born with physical and cognitive impairment
caused by an injury to his brain in the period 72–48 hours before his delivery cause #
d by a short period of compression of the umbilical cord. During his mother's pregnancy there
had been issues raised about risks to the baby, and the court at first instance found that if the
mother had been advised that there were risks in waiting until the expected birth date and
offered an induction, she would have wanted the induction because 'she was fed up with the
pregnancy and with the lack of well-being'. The risks, however, related to the baby's
development but did not specifically include a risk of cord damage in utero. The Doctor was
held to be liable.
Turton criticized this judgment on the basis that the court's analysis focused on the breach of
duty, and there seems to have been no discussion of the fact that the risks that should have
been explained and would have led to the mother opting for an earlier induction were distinct
from the risk that in fact materialised. If the doctor had warned of the risks to the baby then
the mother would have opted for induction and the harm that actually occurred would have
been avoided, so the but-for test is satisfied, but the risk that materialised was not a risk
specific to this baby and there is no suggestion in the judgment that the mother should have
been warned about it. Thus, the harm is coincidental to the failure to warn of other risks