Case Facts
The claimant, Elizabeth Chatterton, suffered from chronic intractable pain in a post-operative scar in her right groin. The pain originated from a hernia repair operation performed in February 1974, during which her ileo-inguinal nerve became trapped. Following years of persistent pain, she was referred to Dr Gerson, a consultant anaesthetist specialising in the treatment of chronic intractable pain, who operated a pain clinic at the Royal Sussex County Hospital, Brighton, and was employed by the East Sussex Area Health Authority.
Dr Gerson performed an intrathecal injection — the injection of a phenol and glycerine solution into the space surrounding the spinal cord at the level of the relevant nerve roots — with the aim of blocking the sensory nerve transmitting pain signals from the scar site to the brain. Dr Gerson's regular practice was to explain to patients before such an operation that the procedure would result in numbness over an area larger than the pain source, and might involve a temporary loss of muscle power. The claimant's recollection, however, was that no such warning was given to her prior to the first operation.
Approximately ten months later, a second operation of the same type was performed. On this occasion, Dr Gerson did not give his usual explanation, taking the view that the repeat procedure was no more risky than the first. Following the second operation, the claimant lost all sensation in her right leg and continued to suffer acute pain in the scar area. She brought claims against Dr Gerson and the East Sussex Area Health Authority in both trespass to the person and negligence, alleging that she had not given informed consent to the procedures.
Held
The court held that both claims failed. On the trespass claim, the court found that a patient's consent to a medical procedure is rendered unreal — and thus opens the door to an action in trespass to the person — only where the doctor has failed to explain in broad terms the nature of the operation. Where a patient does understand the general nature of the procedure, her consent is a real consent and no action in trespass can lie, regardless of whether all relevant risks were disclosed. On the claimant's own evidence, she understood the general nature of the intrathecal injection. Accordingly, her consent was held to be real, and the trespass claim failed.
On the negligence claim, the court confirmed that the applicable standard requires a doctor to explain to the patient what is intended and the implications of that course of action in the way that a careful and responsible doctor would do in similar circumstances — reflecting the standard established in Bolam v Friern Hospital Management Committee [1957]. Where real consent exists and a patient alleges that inadequate information was provided, any claim must be pursued in negligence rather than trespass. For such a negligence claim to succeed, the patient must prove not only that insufficient information was given, but also that, had a proper explanation been given, she would not have consented to the operation. The claimant failed to discharge the evidential burden of proving that she had not in fact been given details of the operation and its implications. Accordingly, the negligence claim also failed.
The court further emphasised that the signing of a consent form is not itself a defence to a trespass claim if no genuine explanation was in fact given.
Ratio Decidendi
The ratio of the case rests upon a critical distinction between two levels of consent in the medical context. First, consent to the general nature of a procedure: where a patient understands, in broad terms, what is to be done and agrees to it, that consent is real and sufficient to defeat an action in trespass to the person. The absence of this level of consent vitiates consent entirely and may give rise to trespass. Second, full informational disclosure of specific risks: the absence of such disclosure does not vitiate consent and therefore cannot ground a trespass claim. Instead, it gives rise, at most, to a claim in negligence.
For a negligence claim based on inadequate disclosure to succeed, the patient must satisfy a causation requirement: she must prove that, had a proper explanation been given, she would not have consented to the procedure. This is a but-for causation question specific to the informed consent framework. It is not sufficient merely to demonstrate that information was withheld; the claimant must establish that the inadequate disclosure made a difference to her decision. In the present case, the claimant failed to establish this, and both heads of claim accordingly failed.
Obiter Dicta
The court made two significant observations that, whilst not forming part of the ratio, carry considerable weight.
First, it was stated per curiam that it would be very much against the interests of justice if actions based on a failure by the doctor to perform his duty adequately to inform were pleaded in trespass to the person. This broad statement reflects a principled concern that the tort of trespass — historically associated with intentional, non-consensual touching — should not be weaponised to circumvent the more demanding requirements of a negligence claim in cases where the patient did in fact understand and consent to the nature of the procedure.
Second, the court observed that the signing of a pro forma consent form expressing agreement to undergo an operation should serve as a valuable reminder to all parties of the need for genuine explanation and meaningful consent. However, such a signed form would be no defence to an action in trespass to the person if no explanation had in fact been given. This reinforces the principle that the form is merely evidence of consent, not a substitute for it.