Border v Lewisham And Greenwich NHS Trust

Consent is required before medical treatment is given to a patient who is conscious and capable of deciding. Compliance with an accepted medical practice does not authorise treatment without consent. The emergency exception applies where the patient is incapable of consenting and treatment is in the patient’s best interests. If treatment is given without consent, breach is established; causation depends on whether the patient would have consented after an adequate explanation, assessed subjectively with relevant objective considerations. A late amendment introducing trespass will be refused where it would have changed the trial and created procedural injustice.

Anita Border attended the Accident and Emergency resuscitation room at Queen Elizabeth Hospital with a suspected fracture of her right humerus. She warned Dr Prenter that her left arm had undergone breast surgery and axillary node clearance, but he inserted an intravenous cannula into that arm. The cannula site became infected and she developed permanent oedema.

The Central London County Court, HHJ Moloney QC, dismissed her clinical negligence claim. The judge held that immediate insertion accorded with accepted medical practice, although he found that she had not expressly or impliedly consented. On appeal, the claimant argued that the absence of consent itself established breach and sought a causation finding or remittal. She also sought to amend the claim to add trespass to the person. The central issues were the legal effect of the absence of consent, causation, and the proposed late amendment.

Richards LJ gave the judgment, with Tomlinson LJ and Newey J agreeing.

1. Consent. The trial judge’s findings meant that Dr Prenter inserted the cannula without the claimant’s express or implied consent. The finding was adequately reasoned and was not open to appellate challenge. The claimant’s case was sufficiently pleaded and the issue had been explored in evidence, so she could rely on the legal consequence of that finding on appeal.
2. Medical emergency. A doctor may proceed without consent where a patient is incapable of giving consent in a medical emergency, provided the doctor acts in the patient’s best interests: St George’s Healthcare NHS Trust v S [1999] Fam 26 at 45B. That exception did not apply. The claimant was conscious and capable of giving or withholding consent. The trial judge was therefore wrong to treat consent as unimportant merely because the procedure took place in a resuscitation room.
3. Breach and causation. The duty to obtain consent is a fundamental tenet of medical practice and is reflected in the law concerning warnings of treatment risks, as illustrated by Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134. The absence of consent inexorably established breach, even though immediate insertion was otherwise supported by accepted practice. Causation remained unresolved. The ultimate question was whether the claimant would have consented after a fuller explanation of the reasons and relative risks, with objective considerations relevant to that subjective assessment: Smith v Barking, Havering and Brentwood Health Authority [1994] 5 Med LR 285 at 288–289. The issue was remitted to the trial judge, who had seen and heard the claimant.
4. Amendment. Permission to add trespass to the person was refused. The proposed amendment would have altered the focus of the trial, required the allegation of battery to be put expressly to Dr Prenter, and might have led to further evidence from witnesses present at the time. Allowing it at that stage would have caused clear injustice.

The court granted a declaration that Dr Prenter breached his duty of care by inserting the cannula without consent. The matter was remitted to Judge Moloney to determine causation and, if liability was established, damages. Permission to amend the particulars of claim was refused.

• Court of Appeal (Civil Division) ([2015] EWCA Civ 8): granted a declaration of breach, remitted causation and any consequential damages assessment to the trial judge, and refused permission to amend the claim.
• Central London County Court: HHJ Moloney QC dismissed the claimant’s clinical negligence claim after finding that immediate cannula insertion accorded with accepted medical practice.