Chester v Afshar - Liability for Failure to Warn of Medical Risks
Chester v Afshar - Liability for Failure to Warn of Medical Risks
[2004] UKHL 41
1. This case concerned an appeal to the House of Lords by a neurosurgeon against the Court of Appeal’s decision finding him liable for substantive damages to the claimant because he failed to warn her of a 1-2% risk of developing a serious adverse condition as a result of surgery. It was clear that the neurosurgeon owed a duty of care to the claimant and he was in breach of that duty by failing to warn her of adverse risks. The issue was one of causation; the claimant said that if she had been warned of the risk, she would not have had the operation on the date she had it (21st November 1994). Instead she would have wished to discuss the matter with others and explore other options. This was not a clear-cut case where the claimant says either that she would never have had the operation had she been warned of the risk (in which case she can recover) or that she says she would have had it anyway, in full knowledge of the risk (in which case there is no causal connection).
2. The House of Lords was split 3:2 in deciding to dismiss the appeal and allow the claimant to recover substantive damages. The dissenting Law Lords (Lord Bingham and Lord Hoffmann) approached the case with rigid legal logic; applying strict legal reasoning to the case, the claimant had failed to prove that but for the failure adequately to warn her of the risks, she would not have had the operation. Lord Bingham said that the claimant had shown that but for the failure to warn she would not have consented to surgery on Monday 21st November 1994. But he went on to say that the timing of the operation is irrelevant to the injury she suffered; that injury would have been as liable to occur whenever the surgery was performed and whoever performed it. Lord Hoffmann drew an analogy with roulette; the odds of a particular number coming up in roulette are the same whether the game is played today or a week later or at a different casino. Similarly, the risk that the claimant was exposed to would have been the same on a different occasion if she had decided to undergo the operation. Therefore the injury was not caused by the failure to warn of the risks.
3. The majority (Lord Steyn, Lord Hope and Lord Walker), at pains to emphasise considerations of policy and corrective justice, rather than ‘traditionalist causation’ techniques; accepted that this case cannot be accommodated within conventional causation reasoning. Instead by analogy with the incremental modification to the strict causation requirements in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, Lord Steyn felt able to modify the current law where justice and policy demanded it and therefore to allow recovery of substantive damages.
4. The policy reasons advocated by the majority in this case can be summarised as the right of the autonomy and dignity of the claimant; the duty to warn has at its heart the right of the patient to make an informed choice as to whether, and if so when and by whom, to be operated on. Lord Hope emphasised that ‘for some the choice may be easy- simply to agree to or to decline the operation. But for many the choice will be a difficult one, requiring time to think, to take advice and to weigh up the alternatives. The duty is owed as much to the patient who, if warned, would find the decision difficult as to the patient who would find it simple and could give a clear answer to the doctor one way or the other immediately.’ He went on to set out the uselessness of a rule which would leave the patient who would find the decision difficult without a remedy. Importantly, he said that ‘the function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content.’
5. The last extract from Lord Hope’s speech opens a number of interesting questions; this is the second time in the past 2 years (Fairchild being the first) that the House of Lords has held that so long as there is a clear duty and breach, causation requirements can be set aside in order to put into effect practical justice. It appears that the Law Lords find it distasteful to disallow a claim when there is a clear breach; that duty and breach are the vital components for liability in negligence and that the ‘but for’ test of causation is a technical obstacle to recovery which can be set aside when the Law Lords decide that compensation is appropriate.
6. The problem with this kind of reasoning is that it leads to uncertainty; when, and in what circumstances, will the Lords decide to set aside the ‘but for’ test in the future? Indeed in Fairchild Lord Nicholls said that ‘there must be good reason for departing from the normal threshold ‘but for’ test. The reason must be sufficiently weighty to justify depriving the defendant of the protection this test normally and rightly affords him, and it must be plain and obvious that it is so. Policy questions will loom large when a court has to decide whether the difficulties of proof confronting the plaintiff justify taking this exceptional course. It is impossible to be more specific…’
7. The above extract emphasises the point that Fairchild left the door open for further incremental departures from the ‘but for’ test. The problem was that there were no guidelines as to when policy dictates that practical justice should be put into effect or alternatively when the ‘but for’ test should step in to protect the defendant.
8. The House of Lords in Chester has done little to clarify this point; they refer to ideas such as ‘patient autonomy’, ‘the duty to inform the patient’ and ‘informed choice’ but do not set out clearly why the ‘but for’ test was modified in this case and not in others. Lord Hope is anxious to assert that an appeal to common sense will not provide a satisfactory answer to the problem; that common sense ‘is no more reliable as a guide to the right answer in this case than an appeal to the views of the traveller on the London Underground’, for the reason that such travellers are so diverse that it is unlikely that any view can be typical of all of them. Instead, Lord Hope emphasises the use of ‘policy’ issues in deciding this case. The problem here, as can be seen in the close split in Chester, is that the Lords have as varied ideas as to when to allow ‘policy’ arguments to swoop down to rescue the claimant’s case as passengers on the London Underground do in the application of common sense. The door, opened by Fairchild, allowing the incremental ‘relaxing’ of the ‘but for’ test is still very much ajar.
9. A further problem with relaxing strict legal requirements is that it can lead to internal inconsistencies within the law. In the present case the relaxing of the requirement that the claimant must show that she would never have had the operation if she had been properly informed means that the elements of clinical negligence are brought closer to those of the tort of battery; in Chatterson v Gerson [1981] QB 432, Bristow J said that, ‘I think justice requires that in order to vitiate the reality of consent [in battery] there must be a greater failure of communication between doctor and patient than that involved in a breach of duty if the claim is based on negligence. When the claim is based on negligence the plaintiff must prove not only the breach of duty to inform but that had the duty not been broken she would not have chosen to have the operation. Where the claim is based on trespass to the person, once it is shown that the consent is unreal, then what the plaintiff would have decided if she had been given the information which would have prevented the vitiation of the reality of her consent is irrelevant.’ With Chester the relevancy of the claimant’s decision had she been properly informed is less important than before. Is it right that the requirements for informed consent in battery and negligence are drawing closer? Will this ‘chipping away’ of the causal requirement in medical negligence lead to the defensive practice of medicine, or an over-allocation of resources in consulting with the patient?
10. It is also arguable that the judgments of the majority are internally inconsistent in two ways; firstly, each of the majority accepts that the facts of Chester require departure from strict causal laws. However there is a thread running throughout the judgment of Lord Steyn which suggests that it was the fact that the claimant had that operation on 21st November 1994 which caused her injury; he says that ‘it is a distinctive feature of the present case that but for the surgeon’s negligent failure to warn the claimant of the small risk of serious injury the actual injury would not have occurred when it did and the chance of it occurring on a subsequent occasion was very small. It could therefore be said that the breach of the surgeon resulted in the very injury about which the claimant was entitled to be warned’. He further says that ‘what is clear is that if she had agreed to surgery at a subsequent date, the risk attendant upon it would have been the same, ie 1%-2%. It is therefore improbable that she would have sustained neurological damage’. He is in effect saying, as the Court of Appeal did, that if the claimant had had the operation at a later date, it is unlikely that her injury would have occurred. It was the fact that she had the operation on 21st November 1994 which caused her injury. This interpretation of the facts is not actually inconsistent with a strict application of causal laws.
11. Secondly, Lord Walker is inconsistent with Lord Steyn on this point; he makes it clear that it was not “in the stars” that the injury would happen on 21st November 1994 and that ‘a postponement of the operation by a month (or even a day) would somehow have completely averted the risk’. He suggests that the reasoning of the Court of Appeal (and therefore Lord Steyn) is incorrect; the idea that it was the fact that the claimant had the operation on that day which caused her injury ‘seems to stack the odds against the surgeon, since it compares a random misfortune which has actually and unexpectedly occurred with the statistical improbability of its occurring on one particular occasion in the future.’
12. So, we are left with uncertainty, lack of clear principle and inconsistency within the law and within the majority judgments. Corrective justice, but at what price?