Grimstone v Epsom and St Helier University Hospitals NHS Trust

Informed consent requires a doctor to take reasonable care to ensure that an adult patient understands the material risks of recommended treatment and any reasonable alternatives. Materiality is fact-sensitive and depends on the circumstances and the characteristics of the patient; it cannot be determined by percentages alone. The discussion must be comprehensible and ordinarily take the form of dialogue. The therapeutic exception is limited and cannot be used to prevent an informed choice. On the facts, the claimant understood the proposed hip-resurfacing procedure sufficiently, would have chosen it in any event, and was not entitled to succeed on the complaint that she had not been told about the limited long-term data for the device.

The claimant underwent bilateral hip surgery in April 2008 using MITCH PER bone-conserving resurfacing devices. The surgery itself was performed properly, but the devices later failed and revision surgery was required. She alleged that the defendant’s consultant had failed to explain the available surgical options, had failed to obtain informed consent, and had failed to disclose the limited data concerning the device’s failure and survival rates.

The trial concerned liability only. The central issues were what had been said, whether reasonable steps had been taken to ensure understanding, what procedure the claimant would have selected, and whether the consultant had been obliged to disclose the limited available data.

1. Applicable law. The court applied the guidance in Montgomery v Lanarkshire Health Board [2015] UKSC 11. An adult of sound mind is entitled to decide which treatment to undergo. The doctor must take reasonable care to ensure awareness of material risks and reasonable alternative or variant treatments.
2. Materiality is assessed in the circumstances of the particular case. The question is whether a reasonable person in the patient’s position would attach significance to the risk, or whether the doctor should reasonably be aware that this particular patient would do so. The assessment is not reducible to percentages. The doctor’s role involves comprehensible dialogue about the condition, anticipated benefits and risks, and reasonable alternatives. The therapeutic exception is narrow.
3. On the evidence, the contemporaneous letter and consent documentation were preferred to the claimant’s uncertain recollection. The consultant had explained the proposed bone-conserving procedure, provided written information, dictated a letter to the claimant’s general practitioner in her presence, invited questions, and explained the relevant surgical risks and contingencies.
4. The claimant’s stated objectives, including a rapid recovery, joint stability and the best available outcome, made it very unlikely that she would have selected the older conventional procedure instead. Her unwillingness to answer a hypothetical question in cross-examination supported that conclusion.
5. The consultant had not disclosed the available success-rate data. However, the device was new rather than experimental, and both experts accepted that the treatment was medically appropriate. The claimant’s expert’s concern did not outweigh the evidence that a reasonable body of orthopaedic surgeons would not have discussed the comparative merits of similar resurfacing devices or provided such data absent a request.
6. The claim was not made out and failed.