Charles Bagot QC succeeds in important appeal for NHS Wales touching on consent to treatment, departing from NICE guidelines, joint replacement surgery, approach to appeals on findings of fact and adequacy of judicial reasons

03 May 2019

We now have an important appeal judgment which has been handed down in Price v Cwm Taf University Health Board [2019] EWHC 938 (QB) (available here) touching on a range of issues relevant to clinical negligence and civil procedure. Birss J dismissed the appeal by the Claimant (“C”) against the judgment of HHJ Petts itself dismissing C’s claim for a large seven-figure sum in damages arising out of arthroscopic treatment and a subsequent partial-knee replacement from which there had been a poor but (as it was upheld on appeal) non-negligent outcome.

Consent to treatment and departure from NICE guidelines

An issue arose as to whether C had provided valid consent to a second arthroscopy to his degenerate knee because no benefits were recorded on the consent form. C argued that this was because there were no benefits, it was a breach of NICE guidelines to carry out a second arthroscopy in the absence of osteoarthritis with a clear history of mechanical locking and the advice should have been to proceed to direct to knee replacement; it was negligent to do otherwise.

Regarding the treatment decision, Birss J held that the Judge was entitled to prefer D’s expert evidence and find, on the evidence, that C was not a typical patient given his comparatively young age. The surgeon was reasonably motivated by a desire to postpone carrying out knee replacement surgery given the implications this might have for C’s work as an aircraft engineer. A clinical decision which, as here, amounted to a departure from NICE guidelines, was likely to call for an explanation but did not, in these circumstances at least, amount to prima facie evidence of negligence. The departure was adequately justified and the appeal seeking to impugn the treatment decision failed. [paras 20-22]

On the consent point, the judge was entitled to find there were potential benefits to C from the arthroscopy and the state of the consent form was simply due to error and not indicative of a situation in which there were not benefits. The reason for the operation, which was set out in a clinic letter, was a potential benefit to C. C argued that he ought to have been told that the operation was not in accordance with the NICE Guidelines, that he was not so told and therefore he was not given the information necessary to give informed consent. He claimed this was a return to the discredited paternalistic approach discredited in Chester v Afshar [2004] UKHL 41 and Montgomery v Lanarkshire Health Board [2015] UKSC 1. 27. Birss J noted that the operation itself was an injury to C and if it was true (as was submitted on C’s behalf) that this operation was pointless and had no benefits at all; and if it was also true (as was submitted) that C was not properly informed of that absence of benefit when asked to give his consent; then those circumstances would vitiate the consent C had given. But Birss J had already rejected the argument that the further arthroscopy was pointless. The trial judge made an express finding in the supplemental judgment, which was already implicit in the main judgment, that the reasons for the second arthroscopy were properly explained to C. That was open to him on the evidence and there was no reason to disturb that finding on appeal. [paras 24-30]

The court held that, in a clinical negligence case, the court’s judgment about the content of the dialogue leading to a patient’s consent will be fact sensitive. Birss J could not see how the absence of a reference to the NICE Guidelines in these circumstances amounted to an infringement of C’s personal autonomy or vitiated C’s ability to make decisions for himself. [para 31]

Did the Judge err in rejecting C’s claim on breach for the partial knee replacement?

C’s case had been that the third operation, a partial knee replacement, was negligently carried out (and resulted in a poor outcome) because the femoral component of the prosthesis was installed in such a way that it was misaligned to a degree exceeding the manufacturers’ specification of +/- 10°.

One of the central issues at trial had been which of two particular X-rays, a so-called ‘Short Leg’ AP view or a ‘Long Leg’ view (essentially a composite of 3 X-rays ‘stitched together’ to show the whole limb) should be used to measure the angle of alignment of the component. There had been orthopaedic and radiological expert evidence for both sides at trial.

On appeal, C’s Counsel drew attention to the fact that simply by looking at the Long Leg image, it appeared that the axis of the femoral component was pointing in quite a different direction from the axis of the femur. Birss J held that this beguiling submission should be resisted. The interpretation of these X-rays was a matter for suitably qualified experts or (which was really the same thing) for a judge once they have assumed the mantle of a suitably qualified expert with the assistance of appropriate expert evidence. Armed with that education, the court may well be able to see and understand what the expert is talking about but that is quite a different matter from just looking at the pictures and reacting. [para 45]

The trial judge was entitled to hold that he could not draw any conclusions from the fact that after the operation C had persistent pain requiring revision surgery. Such symptoms were a recognised though rare non-negligent complication. None of the X-rays was ideal, but it was open to HHJ Petts to reject the Long Leg image and prefer the short-leg view thereby concluding on the basis of it that the misalignment did not exceed 10°. The Long Leg image was not in accordance with the radiographic criteria of the Oxford Manual written by those who developed this prosthesis; the majority of the literature that looked at angles of components did so using images of the knee and not long leg views; and the rotation of the leg in the Long Leg view meant that the angle could not be measured reliably. Birss J accepted that the trial judge was entitled to dismiss the claim on that basis. [paras 56-67]

Adequacy of judicial reasons

Additionally, the judgment considered the circumstances in which a party should ask a trial judge for additional reasons as a precursor to or as part of the appeal process (considering the procedure laid down in English v Emery Reimbold [2002] EWCA Civ 605) and whether an appeal court should take a second judgment into account. Here one of the C’s complaints in the grounds of appeal was that the judge had given insufficient reasons on the consent point. Permission to appeal was given by Birss J on paper, but, in the grant of permission, C was invited to consider inviting the trial judge to give further reasons. C subsequently did so, 4 months after the original judgment was handed down. By the time of the hearing of the appeal, no reply had been received. Shortly after the hearing of the appeal, but before the appeal judgment had been circulated in draft, the parties received a supplemental judgment from the trial judge dealing with the consent issue. Birss J invited and received written submissions from the parties on any points arising from the trial judge’s further findings and took them into account when formulating the appeal judgment. [paras 13-15 ;29]

This is a worthwhile reminder of the importance of asking for additional reasons, even as part of an appeal, and how that process can be managed if there is unexpectedly a supplemental judgment provided.

Proper approach to appeals on findings of fact

Finally, Birss J made observations on the proper approach to appeals on findings of fact [para 7]:

“In such cases appellants often approach the matter by seeking to persuade the appellate court what the facts are and then inviting a conclusion that the appeal should be allowed because the judge came to a different conclusion and therefore erred. That is not the right approach, particularly when the first step is necessarily based on edited highlights from the evidence below.  The most important principle which I must keep in mind at all times is to remember that I am not the trial judge.  The question is not – what do I think the facts are? The question is – has the trial judge erred in finding the facts as he or she has found them to be?”

Birss J then set out the approach in various leading cases as considered in Wheeldon v Millenium Insurance Co. Ltd [2018] EWCA Civ 2403 where Coulson LJ summarised the position thus:

“10. In short, to be overturned on appeal, a finding of fact must be one that no reasonable judge could have reached. In practice, that will usually occur only where there was no evidence at all to support the finding that was made, or the judge plainly misunderstood the evidence in order to arrive at the disputed finding.”

This is helpful guidance for those considering appeals on findings of fact whether in the clinical negligence context or more widely in civil litigation.

Charles Bagot KC of Hardwicke led Vanessa McKinlay of St. John’s Chambers, Bristol on the appeal and they were instructed by NHS Wales Shared Services Partnership for the Health Board.


Charles Bagot KC

Call: 1997 | Silk: 2018


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