No damages for ‘loss of personal autonomy’ due to failure to obtain informed consent

The Court of Appeal decision in Shaw v Kov & University of Leicester NHS Trust [2017] EWCA Civ 1028

Executive summary

The Court of Appeal has provided helpful and clear guidance to the effect that there is no separate and freestanding right to damages for ‘loss of personal autonomy’ on the basis of a failure to obtain proper and informed consent, neither could it amount to a separate head of loss for the calculation of damages. If a patient's suffering was increased by knowing that their personal autonomy had been invaded due to lack of informed consent, this could be reflected in the award of general damages.

Background

The claimant/appellant (C) was the personal representative of her late father who had died aged 86 during an operation for the implantation of a trans-aortic valve. C argued that the defendants — the surgeon and the hospital trust — had failed to obtain her late father’s informed consent to the procedure and, had they done so, he would not have agreed to it and would have lived for several more years.

Judgment was entered by consent and general damages of £5,500 were awarded. C also sought to argue, among a number of other heads of damage which were all considered by the Court of Appeal, for a new and separate claim for damages due to breach of personal autonomy on the basis of lack of informed consent.

C relied on the decisions in Chester v Afshar [2005] 1 AC 134 and Montgomery v Lanarkshire Health Board [2015] AC 1430 but this was rejected at first instance.

The Court of Appeal’s decision

The court considered all of C’s arguments, including claims for damages on various bases, and unanimously found:

• Claims based on lack of advice and failure to get informed consent are based on an action in negligence. There can be no separate, freestanding cause of action.
• Vindicatory damages, over and above the compensatory award in order to vindicate the victim’s rights were not available on the facts of the case, neither were they available following the Supreme Court’s decision in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245.
• There could no claim for nominal damages for wrongful invasion of personal autonomy which is not actionable per se.
• C sought to argue that the estate should be awarded compensatory damages for invasion of personal autonomy, but the decisions relied on did not support that argument. The right to personal autonomy was the basis for the obligation on doctors to provide proper information and if that was breached, damages were awarded for pain and suffering, plus financial losses, in the normal way. If a claimant’s suffering were worsened by knowing about the invasion of their personal autonomy, this could be reflected in the general damages award.
• The argument that a conventional award be made to mark the infringement of personal autonomy was also rejected. Such an award had been allowed in Rees v Darlington Memorial Hospital [2004] 1 AC 309 where, due to a failed sterilisation, parents were burdened with the obligation and cost of bringing up a healthy child (i.e. the “wrongful birth” cases). These were very different circumstances: for reasons of policy the courts were not prepared to allow parents to recover the costs of raising healthy children, so a conventional award of £15,000 was allowed rather than a fully compensatory award for the financial loss suffered. In this case however, there was no such policy bar to compensation, which had been awarded, and the estate would not be granted additional damages.

Conclusions and implications

The clarity of the Court of Appeal’s reasoning as well as its conclusions on the vexed issue of damages on the basis of infringement of the right to personal autonomy is very helpful.

Whilst the importance of practitioners obtaining informed consent as required by Montgomery cannot be overstated, this decision should hopefully help in stemming the flow of claims for a separate head of damage. Attempts to build such claims on well-established case law were also roundly rejected, as detailed above, whilst the circumstances in which a higher award of general damages would be appropriate was unequivocally set out. The decision will be welcomed by all those in the healthcare arena.