“Surgery performed without the informed consent of the patient is unlawful.”
“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 [1999] PIQR P53, subject to the refinement made by the High Court of Australia in Rogers v Whitaker 175 CLR 479 which we have discussed at paras 70-73. 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.”
“… [a medical practitioner] is not guilty of negligence if [she or he] has acted in accordance with a practice accepted as proper by a responsible body of medical [practitioners] skilled in that particular art. …. Putting it the other way round, a [medical practitioner] is not negligent, if [she or he] is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.…”
“… fallen below a standard of practice recognised as proper by a competent reasonable body of opinion”
“… the judge had to start somewhere and that was how the case had been pleaded. However, it should be acknowledged that she could equally have taken the allegations in a different order, perhaps chronological. What mattered was that she sufficiently analysed the evidence overall and correlated the main elements with each other before coming to her final conclusion.” (6) The court must decide whether the fact to be proved happened or not. Fence-sitting is not permitted (In re B[2008] UKSC 35 at [32], per Lady Hale); (7) The law invokes a binary system of truth values (In re B at [2], per Lord Hoffmann): “If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.” (8) There are important and recognised limits on the reliability of human memory: (a) our memory is a notoriously imperfect and fallible recording device; (b) the more confident a witness appears does not necessarily translate to a correspondingly more accurate recollection; (c) the process of civil litigation subjects the memory to “powerful biases”, particularly where a witness has a “tie of loyalty” to a party (Gestmin SCPS S.A. v Credit Suisse (UK) Ltd EWHC 3560 (Comm) at [15]-[22], per Leggatt J (as then was)); and the court should be wary of “story-creep”, as memory fades and accounts are repeated over steadily elapsing time (Lancashire County Council v C, M and F (Children – Fact-finding)[2014] EWFC 3 at [9], per Peter Jackson J); The Gestmin principles approved variously (but see next footnote), including R (Bancoult No.3) v Secretary of State for Foreign and Commonwealth Affairs[2018] UKSC 3 – see Lord Kerr at [103], where they were said to have “much to commend them”; however, the Court of Appeal subsequently stated that Gestmin is “not to be taken as laying down any general principle for the assessment of evidence … [instead] It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory” (Kogan v Martin[2019] EWCA Civ 1645 at [88-89], per Floyd LJ). (9) The court “takes account of any inherent probability or improbability of an event having occurred as part of the natural process of reasoning” (Re BR (Proof of Facts)[2015] EWFC 41 at [7], per Peter Jackson J); “Common sense, not law, requires that … regard should be had, to whatever extent appropriate, to inherent probabilities” (In re B at [15], per Lord Hoffmann); (10) Contemporary documents are “always of the utmost importance” (Onassis v Vergottis [1968] 2 Lloyd’s Rep. 403 at 431, per Lord Pearce), It must be remembered that Onassis, like Gestmin, was a dispute about recollection of business conversations, where typically there will commercial documentation. Ryder LJ sounds a necessary warning note about “simply harvesting obiter dicta expressed in one context and seeking to transplant them into another” (Re B-M (Children: Findings of Fact)[2021] EWCA Civ 1371 at [23]). but in their absence, greater weight will be placed on inherent probability or improbability of witness’s accounts: “It is necessary to bear in mind, however, that this is not one of those cases in which the accounts given by the witnesses can be tested by reference to a body of contemporaneous documents. As a result the judge was forced to rely heavily on his assessment of the witnesses and the inherent plausibility or implausibility of their accounts.” (Jafari-Fini v Skillglass Ltd[2007] EWCA Civ 261 at [80], per Moore-Bick LJ); 30. And to same effect: “Faced with documentary lacunae of this nature, the judge has little choice but to fall back on considerations such as the overall plausibility of the evidence” (Natwest Markets at [50]). (11) The judge can use findings or provisional findings affecting the credibility of a witness on one issue in respect of another (Bank St Petersburg PJSC v Arkhangelsky[2020] EWCA Civ 408 ). At [120], per Males LJ, “once other findings of dishonesty have been made against a party, or he is shown to have given dishonest evidence, the inherent improbability of his having acted dishonestly in the particular respect alleged may be much diminished and will need to be reassessed.”
“If a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything.” (R v Lucas[1981] QB 720 , per Lord Lane CJ); 31. Similarly, Charles J: “a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B...” (A Local Authority v K, D and L[2005] EWHC 144 (Fam) at [28]). What is necessary is (a) a self-direction about possible “innocent” reasons/explanations for the lies (if that they be); and (b) a recognition that a witness may lie about some things and yet be truthful “on the essentials … the underlying realities” (Re A (A Child) (No.2)[2011] EWCA Civ 12 at [104], per Munby LJ). (13) Decisions should not be based “solely” on demeanour (Re M (Children)[2013] EWCA Civ 1147 at [12], per Macur LJ); but demeanour, fairly assessed in context, retains a place in the overall evaluation of credibility: see Re B-M (Children: Findings of Fact)[2021] EWCA Civ 1371 , per Ryder LJ: “a witness’s demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable” (at [23]); so long as “due allowance [is] made for the pressures that may arise from the process of giving evidence” (at [25]). But ultimately, demeanour alone is rarely likely to be decisive. Atkin LJ said it almost 100 years ago (Societe d’Avances Commerciales (SA Egyptienne) v Merchans’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll. L. Rep. 140 at 152): “… an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”
“The Claimant accepts that the allegations set out in Issue 1 in relation to16th January 2014 procedure cannot be sustained in light of the expert evidence and no longer therefore fall to be considered by the Court. It is further accepted that, in light of this, Issue 3 also does not fall to be considered and that Issue 2 is effectively now academic.”
" … the doctor's advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor's duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form."
“I considered that the Claimant required a gastrocnemius flap and a split skin graft after knee washout. There was also a possibility that the Claimant would require removal of the implant and I relayed this to the Claimant, but that was a decision to be made by Mr Chauhan / orthopaedic team.”
“The Claimant was informed (and I understand she had a separate discussion with Mr Chauhan) that the orthopaedic team would make a decision regarding the knee joint/joint replacement and whether it would be retained or removed. She was informed that removal of the knee prosthesis could be done at this procedure, but it would be a decision made by the orthopaedic team and not by myself. A provisional date of Tuesday 28.01.14 was mentioned for this procedure.”
“I advised the Claimant of the risk of recurrent infection and of the potential need for further debridements. This was advised due to the risk of persistent infection and the Claimant's co-morbidities that affected wound healing and resolution of infection. These include diabetes, obesity, poor mobility, recurrent cellulitis in her legs, smoking, and previous postoperative problems.”
“26. The discussions I had with the Consultant on both these occasions were very brief and lasted a few minutes only. I was not advised that, if the infected prothesis, cement and necrotic material were not removed at that stage, it was unlikely that the procedures proposed would eradicate the deep infection to my left knee. Furthermore, I was not advised to undergo the first stage of the two-stage procedure on either of these occasions. 27. I wish to make it clear that, had I been so advised, even though the treatment involved would have been more complicated and I would have been in hospital for much longer with an extensive recovery period, it is likely I would have undergone the first stage of the two-stage procedure at that stage.”
“This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process.”
“The first agreement between the parties expressly accepts that “the infection” was in fact introduced at or soon after the November 2013 surgery. The pleaded case is not caveated to allege that “the infection” did not include the Staphylococcus epidermidis infection. It is submitted that this should be the starting point when considering medical causation and therefore the end point.”
“Contends that the DAIR procedure in fact eradicated the deep infection present in January 2014 (i.e. it achieved the same objective that the Claimant contends should have been achieved with a first stage procedure.) Accordingly, the cause of the problems with ongoing infection leading to the knee fusion and amputation operations was the fact that a new deep infection was introduced during the June 2014 operation. This was a risk with any surgery and was in fact more likely to occur with a second stage operation (which would have been required if a first stage procedure had been carried out). Accordingly, the claim should fail for lack of causation and/or because the new infection was outside the Defendant’s scope of duty.”
“To consider simply whether to prefer one expert over the other is not the correct approach. The Court should make a judgment as to the expert witnesses, the weight to be placed on different aspects of their evidence and the assistance to be derived from it, and then reach its own conclusion…”
“Diagnosis: Ongoing infected left calf for further review”
“even taking everything else out of the equation because it is finely balanced, is it not more likely that this was a delayed low grade infection that had been there all the way through, rather than an early infection that Mrs Powell was just so unfortunate enough to get in June 2014 with a biopsy procedure.”
“MS KNIGHT: I just want to clarify, Professor: early infection, it would be more likely that you would find either Staph aureus or a gram-negative on sampling, than it would be that you would find Staph epidermidis. PROFESSOR MASTERTON: Yes. Q: And with a delayed onset, or low-grade infection, it would be more likely that you would find Staph epidermidis than finding Staph aureus or something else. A: Yes. Q Can I just put it to you that for reason alone, even taking e:verything else out of the equation because it is finely balanced, is it not more likely that this was a delayed low-grade infection that had been there all the way through, rather than an early infection that Mrs Powell was just so unfortunate enough to get in June 2014 with a biopsy procedure. A: If you look at that issue alone, yes.”
“The task is a difficult one. It must be performed without prejudice and preconceived ideas. But it is the task which we are paid to perform to the best of our ability.”
“Recognizing an individual right of autonomy makes self-creation possible. It allows each of us to be responsible for shaping our lives according to our own coherent or incoherent - but, in any case, distinctive – personality. It allows us to lead our lives rather than be led along them, so that each of us can be, to the extent a scheme of rights can make this possible, what we have made of ourselves.”
“The patient’s right to be appropriately warned is an important right, which few doctors in the current legal and social climate would consciously or deliberately violate. I do not for my part think that the law should seek to reinforce that right by providing for the payment of potentially very large damages by a defendant whose violation of that right is not shown to have worsened the physical condition of the claimant.”