“In the end, however, this factual dispute is of little, if any, relevance because even on Mr Wajed's account, the Claimant had only said that she had no plans for a pregnancy in the foreseeable future which he took to mean within the next few months.”
“24. Mr Wajed agrees that he did not discuss at all with the Claimant the potential implications of a mesh repair in terms of a pregnancy in the future. On the basis of the expert evidence from both the Claimant's expert, Professor Winslet and the Defendant's expert, Mr Royston, there is general consensus that the Claimant should have been counselled about the potentially adverse effects of a mesh being present in pregnancy. Indeed Mr Wajed himself agrees that if there was a prospect of a pregnancy in the future, the risks associated with a mesh repair needed to be discussed. 25. In such circumstances, it is unsurprising that Mr Charles does not seek to argue against the preliminary view which I expressed to the effect that there was a lack of informed consent. Putting it shortly, on the basis (as I find) that Mr Wajed could not reasonably have excluded the prospect of a pregnancy in the future, to fail to mention the risks associated with the presence of a abdominal mesh amounted to a breach of duty. 26. Similarly, Mr Charles does not seek to dissuade me from the view that Mr Wajed was under an obligation to mention the possibility of a primary suture repair. On the totality of the expert evidence, it is agreed that the Claimant should have been told that this was an option and, a possible alternative to, a mesh repair. 27. I am quite satisfied that the reason why Mr Wajed did not mention it was because he himself was convinced, or at least thought it highly likely, that a suture repair would fail with the result that the hernia would recur. Nevertheless, both Professor Winslet and Mr Royston maintain that the Claimant should have been informed that there was a possible alternative to a mesh repair. 28. Accordingly, in two respects, I find there was a breach of duty in relation to the counselling process for the mesh repair: i) it should have been explained to the Claimant that there was attendant upon a mesh repair certain risks, should she become pregnant in the future; and ii) the claimant should have been told a primary suture repair as opposed to mesh repair was possible even if there was a high risk of failure.” i) it should have been explained to the Claimant that there was attendant upon a mesh repair certain risks, should she become pregnant in the future; and ii) the claimant should have been told a primary suture repair as opposed to mesh repair was possible even if there was a high risk of failure.”
“She asked me about pregnancy today and I think, although not completely contraindicated, given her previous abdominal surgery there will have to be some cautions (sic) as the mesh may restrict the growth of the uterus causing possible early delivery. There is also the risk that if she requires an emergency caesarean section that access to her abdomen may be difficult in the presence of the mesh and certainly there is a possibility that after the pregnancy the mesh and abdominal wall may be disrupted…”
“… would have been well within the range of the advice given by reasonably competent general surgeons. Accordingly, I find that what Mr Wajed would have said if asked about the risk of pregnancy was sufficient to allow the Claimant to give informed consent, subject of course to being offered the choice of a different surgical procedure.”
“Sutures alone would not have provided a sound and durable repair as the quality of her abdominal wall tissue was very poor. This was evident both clinically and on the scans… In my opinion the risks of recurrent hernia from a simple suture repair were very high – in the region of 50% within two years and inevitable in the course of her natural life. Therefore, I did not consider this was a viable option for the Claimant.”
“37. Returning then to Mr Wajed's assessment of matters, I conclude that if he had discussed the possibility of a suture repair with the Claimant, he would have told her that the rate of a recurrent hernia from such a repair was very high, in the order of 50% within two years and, highly likely, if not inevitable that a hernia would recur during her lifetime. In short, he would have very strongly recommended a mesh repair and counselled against a primary suture repair. I am satisfied that this is the advice which he would have given even if he had been made aware that the Claimant had not ruled out becoming pregnant in the future. He would have explained that a pregnancy would put additional strain on a suture repair with a real risk of recurrence of the hernia. He is likely to have added that the vast majority (in the order of 95%) of surgeons would elect to repair the Claimant's hernia with a mesh. 38. In the light of the expert evidence from Professor Winslet and Mr Royston, it seems to me that what, as I find, Mr Wajed would have said about the suture repair was entirely reasonable and well within the range of what a competent surgeon might say. It accords with what Mr Royston would have said, and Professor Winslet accepts it was reasonable for Mr Wajed to conclude that a suture repair stood little chance of success.”
“50. … First, he argues that the Claimant should be entitled to compensation for the ‘shock’ of discovering that she could not have children. The Claimant told Dr Wright, ‘being told I wouldn't have children was a major slap in the face’. It is contended that being told that she could not have children exacerbated her psychiatric condition. 51. It should be observed that this somewhat ingenious argument featured for the first time in Mr Kellar's closing submissions. The whole thrust of the Claimant's case has been that had she been adequately counselled, she would not have had the mesh repair and, in that event, she would have been able to child-bear. This ‘secondary’ case is only propounded in the event of a finding that the Claimant would still have had a mesh repair, even if appropriately warned and counselled. 52. As it seems to me, it is not surprising that Mr Kellar did not, at any earlier time, put forward this argument. The reason why I express that view is because, in my judgment, it has neither factual or legal validity. The breach of duty on the part of Mr Wajed was to fail to warn the Claimant about possible complications in pregnancy. That is wholly different from being under a duty to tell a patient that if she undergoes a certain procedure, she would not be able to child-bear in the future. It cannot conceivably be said that it was a foreseeable consequence of the failure to warn about certain risks that another doctor (Mr Jones), nearly three years later would tell the Claimant that it was inadvisable to become pregnant. That such advice was given is, to my mind, unconnected to the breach of duty of the part of Mr Wajed or, at the very least, far too remote a consequence. 53. Furthermore, it is the Claimant's case that by the time she was given advice by Mr Jones, she was already suffering depression and anxiety. It seems to me that it would be very difficult to measure, in any meaningful way, the extent to which the advice given by Mr Jones rendered her depression/anxiety more severe. Additionally, it is, of course, trite law that 'shock' on its own does not sound in damages.”
“86. … the analysis of the law by the majority in Sidaway is unsatisfactory, in so far as it treated the doctor's duty to advise her patient of the risks of proposed treatment as falling within the scope of the Bolam test, subject to two qualifications of that general principle, neither of which is fundamentally consistent with that test. It is unsurprising that courts have found difficulty in the subsequent application of Sidaway, and that the courts in England and Wales have in reality departed from it; a position which was effectively endorsed, particularly by Lord Steyn, in Chester v Afshar. There is no reason to perpetuate the application of the Bolam test in this context any longer. 87. The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce, subject to the refinement made by the High Court of Australia in Rogers v Whitaker, which we have discussed at paras 77-73. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. … 89. Three further points should be made. First, it follows from this approach that the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore factsensitive, and sensitive also to the characteristics of the patient.”
“The onset of lumbar disc prolapse, subsequent development of the abdominal hernia, chronic pain, disfigurement and disability resulting from the hernia are factors that caused onset of the third episode in 2011. This episode was then subsequently worsened substantially following uncontrolled post-operative pain and infection following the third operation in 2014 and the realisation that, as a result of the series of operations to her abdomen, that she may not be able to have further successful pregnancies with her new partner.” 26. In the same report the psychiatrist recorded the appellant as informing him that: “In 2014, she underwent further surgery to remove the previously inserted mesh and further repair of the hernia and abdominoplasty. While she was satisfied with the cosmetic result, she experienced severe pain post-operatively which proved difficult to control thereafter. She also suffered postoperative infection over a period of three months. … In 2014, she became aware that she may not be able to have children, as a result of the abdominal surgery. This came at a time when she had entered her current relationship with her partner who did not himself have children, but who wished to start a family in the future. She described feeling ‘… a failure … useless to him … wanted to end the relationship…’” … useless to him … wanted to end the relationship…’”
“She suffered from a number of psychiatric symptoms … consistent with a mild Major Depressive Episode from 2011 onwards …. These symptoms worsened from 2014, when she became aware that her surgery meant that she would be unable to have children and she then sought treatment from her General Practitioner …”
“… where there has been a negligent non-disclosure of information by a doctor then, that of itself, can create a right for the patient to claim damages.”
“On any view the facts of Chester v. Afshar were unusual. The defendant neurosurgeon advised the claimant to undergo an operation on her spine but failed to explain that, if performed without negligence, the procedure carried a small (1-2%) unavoidable risk of a neurological damage leading to a disabling condition. The claimant agreed to the procedure on a Friday and the operation was performed on the following Monday. She subsequently developed the disabling condition which left her partially paralysed, and sued the surgeon for negligence. In these circumstances, claimants had needed to show that, if a relevant warning had been given, they would not have undergone the procedure. That finding was not made in Chester v. Afshar. The trial judge held that the defendant had not performed the operation negligently, but that he had negligently failed to warn the claimant of the risks of developing the disabling condition and that, if she had been aware of the risks, the claimant would have sought advice on alternatives to surgery and the operation would not have taken place when it did. The judge held that there was a sufficient causal connection between the failure to warn of the inherent risks of the operation and the damage sustained by the claimant, and that the link was not broken by the possibility that the claimant might have consented to the surgery in the future. The Court of Appeal dismissed the defendant's appeal and he appealed to the House of Lords.”
“… ‘86. I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether, and if so when and by whom, to be operated on. Patients may have, and are entitled to have, different views about these matters. All sorts of factors may be at work here - the patient's hopes and fears and personal circumstances, the nature of the condition that has to be treated and, above all, the patient's own views about whether the risk is worth running for the benefits that may come if the operation is carried out. For some the choice may be easy - simply to agree to or to decline the operation. But for many the choice will be a difficult one, requiring time to think, to take advice and to weigh up the alternatives. The duty is owed as much to the patient who, if warned, would find the decision difficult as to the patient who would find it simple and could give a clear answer to the doctor one way or the other immediately. ‘86. I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether, and if so when and by whom, to be operated on. Patients may have, and are entitled to have, different views about these matters. All sorts of factors may be at work here - the patient's hopes and fears and personal circumstances, the nature of the condition that has to be treated and, above all, the patient's own views about whether the risk is worth running for the benefits that may come if the operation is carried out. For some the choice may be easy - simply to agree to or to decline the operation. But for many the choice will be a difficult one, requiring time to think, to take advice and to weigh up the alternatives. The duty is owed as much to the patient who, if warned, would find the decision difficult as to the patient who would find it simple and could give a clear answer to the doctor one way or the other immediately. 87. To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable. The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty. 88. The reasoning of Kirby J in Chappel v Hart, 195 CLR 232, para 95, which I would respectfully endorse, supports this approach. I am encouraged too by the answer which Professor Honoré gave to the question which he posed for himself in his case note on that case at p 8: “is this a case where courts are entitled to see to it that justice is done despite the absence of causal connection?”
“… If there has been a negligent failure to warn of a particular risk from an operation and the injury is intimately connected to the duty to warn, then the injury is to be regarded as being caused by the breach of the duty to warn; and this to be regarded as a modest departure from established principle of causation.”
“… The crucial finding in Chester v. Afshar was that, if warned of the risk, the claimant would have deferred the operation. In contrast, in the present case, it was not the appellant's case that she would not have had the operation, or would have deferred it or have gone to another surgeon… Nevertheless, it seems to me that if a claimant is to rely on the exceptional principle of causation established by Chester v. Afshar, it is necessary to plead the point and support it by evidence. ...”
“… Moreover, there is nothing in the actual majority decision in Chester which indicates the availability of a further, freestanding, award of the kind proposed in the present case. On the contrary, the damages awarded were (by reason of the majority conclusion on causation) of what I might call the conventional kind…”
“64. … The true importance and significance of that decision is that, putting it shortly, it removes (contrary to the previous general understanding) the application of the principles of Bolam v Friern Hospital Management Committee[1957] 1 WLR 582 from the assessment of the standard to be expected from a doctor in obtaining a patient's consent to a recommended medical procedure. ... 65. … The duty and standard of care in providing proper information thus was not to be governed by a generalised view held by the medical profession as to a generalised norm of what was acceptable as to the provision of information in certain kinds of case. Rather, the standard required as to the proper provision of information had to be geared to the individual patient and the individual case: precisely because of the right of autonomy involved .... But nowhere does such decision suggest or provide support for the proposition that an additional, free standing, award of damages is available for the infringement of the patient's right of autonomy or interference with the patient's bodily integrity.”
“66. When paragraphs [86]-[87] of Lord Hope's judgment are considered in context in my judgment it is clear that he is not setting out a free-standing test, as the appellant contends, but rather the circumstances which justify the normal approach to causation being modified. That modification was to treat a ‘but for’ cause that was not an effective cause as a sufficient cause in law in the ‘unusual’ circumstances of the case. 67. This is also how the third member of the majority, Lord Walker, approached the matter. At [94] he observes that in this case: ‘Bare "but for" causation is powerfully reinforced by the fact that the misfortune which befell the claimant was the very misfortune which was the focus of the surgeon's duty to warn.’ 68. It was the powerful reinforcement provided by the close link between the injury suffered and the duty to warn that led Lord Walker also to conclude that ‘but for’ causation was sufficient. 69. I accordingly agree with the respondent that the majority decision in Chester does not negate the requirement for a claimant to demonstrate a ‘but for’ causative effect of the breach of duty, as that requirement was interpreted by the majority, and specifically that the operation would have not have taken place when it did.”
“… as there is no reasonable interpretation of the decision of the House of Lords in Chester which justifies extending liability for negligent failure to warn of a material risk of a surgical operation to a situation where, as here, it has been found as a fact that, if she had been warned of the risk, the claimant would still have proceeded with the operation as and when she did.”