Pepper v Royal Free London NHS Foundation Trust

Informed consent requires a patient to receive sufficient comprehensible information about the proposed treatment, its material risks and reasonable alternatives to make an informed decision. The court should assess whether the doctor crossed the line between explaining a serious medical risk and pressuring the patient into treatment. A consent process may permit a surgeon to exercise clinical judgment during an operation, provided the scope of that consent is established on the facts. A failure to give information is not causative where the patient would have made the same decision if properly informed. The assessment of a witness’s recollection must take account of contemporaneous documents, the known facts and the probabilities, while recognising the particular difficulties of hindsight in clinical negligence claims.

The claimant underwent an exploratory laparotomy and Whipple’s procedure after investigations identified a pancreatic abnormality which could not be confidently classified as benign or malignant. Subsequent pathology disclosed acute pancreatitis and cholecystitis, not cancer. She alleged that the defendant’s surgeon had negligently advised surgery and that she had consented to a Whipple’s procedure only if an intra-operative biopsy showed malignancy.

The defendant denied breach and causation. The trial concerned liability only, including the scope of the claimant’s consent, the adequacy of the information provided, the reasonableness of recommending surgery, and whether any breach caused the surgery and resulting injury.

1. Claim dismissed. The defendant’s surgeon had not breached his duty of care and the claimant had consented to the Whipple’s procedure in the circumstances which arose.
2. The court applied the principles of informed consent identified in Montgomery v Lanarkshire Health Board [2015] UKSC 11. The patient was entitled to understand the seriousness of the condition, the treatment options, the risks of treatment and non-treatment, and reasonable alternatives. The court was not required to micromanage the precise words used by the doctor, provided the explanation did not amount to improper pressure.
3. The surgeon had been entitled to explain in stark terms that delaying surgery might allow a pancreatic cancer to become inoperable. On the facts, that language conveyed the gravity of the medical situation and did not constitute unreasonable pressure. The claimant was intelligent, able to question the surgeon, had received written information about pancreatic surgery, and had consented to surgery in the terms recorded on the consent form.
4. On the balance of probabilities, the claimant had agreed that a Whipple’s procedure could be performed if the intra-operative biopsy was positive or if the surgeon’s examination of the pancreas gave it a very suspicious appearance. The negative biopsy did not exhaust the scope of the consent, because the surgeon had explained that it could not definitively exclude cancer.
5. A reasonable body of pancreatic surgeons could properly offer a Whipple’s procedure despite the absence of confirmed malignancy. The expert evidence established that malignancy could not be excluded, that a further period of observation was a reasonable alternative, and that the claimant should have been told that the risk of benign disease was no greater than 50% and probably significantly less. Had that information been provided, she would still have consented to surgery.
6. The failure to give percentage risks for each surgical complication and the failure to discuss the later cytology report before surgery did not cause the loss alleged. The court accepted that the material risks had otherwise been explained and that disclosure of the cytology report would have reinforced, rather than altered, the claimant’s decision.
7. The court considered the documentary evidence and the witnesses’ recollections in accordance with the guidance in Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2018] 1 WLR 973, while declining to apply the commercial-litigation approach in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) wholesale to this clinical case.

First-instance decision. No appellate history was stated in the judgment.