Anne Edith Powell v University Hospitals Sussex NHS Foundation Trust

Informed consent requires a medical practitioner to take reasonable care to explain material risks and reasonable alternative treatments in comprehensible terms. A patient must be given a genuine choice, rather than a single treatment presented as inevitable.

A breach of that duty does not establish liability without factual and medical causation. The claimant must prove that proper advice would probably have led to a different choice and that the relevant injury was probably caused by the breach. Where competing medical explanations exist, the court must assess all the evidence and weigh the factors; it must not simply choose between experts.

The claimant brought a clinical negligence claim concerning knee-replacement treatment, subsequent infection and the eventual amputation of her leg. She alleged that, before a procedure on 28 January 2014, the defendant’s surgeon failed to explain the reasonable alternative of a first-stage two-stage revision and the differing prospects of infection eradication.

The defendant conceded breach of duty concerning the information and advice given on 28 January. The court had to decide whether the claimant would probably have chosen the alternative treatment and whether the Staphylococcus epidermidis infection identified in October 2014 was probably present by 28 January 2014.

1. The claim was dismissed. The claimant established a breach of the duty of informed consent, but failed to establish either factual causation or medical causation.

2. Under Montgomery v Lanarkshire [2015] UKSC 11, a doctor must take reasonable care to ensure that the patient understands material risks of the recommended treatment and reasonable alternative or variant treatments. Information must be comprehensible and de-jargonised. A consent form or technical explanation is insufficient if it does not enable an informed decision.

3. The professional negligence issue was governed by Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582, subject to the requirement that the supporting professional opinion be rational and logical as explained in Bolitho v City and Hackney Health Authority [1998] A.C. 232. The court found that a responsible body of practitioners could properly support the second DAIR procedure, so the claimant failed on the allegation that first-stage surgery was mandatory.

4. The defendant nevertheless accepted that the claimant should have been told about first-stage surgery and the materially greater prospect of eradicating infection associated with it. Presenting DAIR plus as the only option, with removal left only as an intra-operative possibility, did not provide a genuine choice.

5. Applying the ordinary but for test, the claimant had to prove that proper advice would probably have caused her to choose first-stage surgery. The court found that she would probably have followed the surgeon’s advice to undergo DAIR plus, given the complexity of the decision, the competing risks and her longstanding reliance on his advice. The breach therefore made no causal difference.

6. On medical causation, the claimant had to prove that the October Staphylococcus epidermidis infection was probably present by 28 January 2014. The court assessed the evidence as a whole, including the clinical course, CRP trends, sampling, infection characteristics and expert evidence. It rejected a mechanistic counting of factors and preferred the defendant’s June-introduction scenario as more probable.

7. The formal order was that the claim be dismissed. Costs and consequential directions were left for further submissions.