Abstract
In Chester v Afshar [2004], the House of Lords stated they were departing from the traditional rules of causation in order to vindicate the patient’s right of autonomy. Subsequent judgments in the Court of Appeal expressed concerns over the lack of clarity of the legal principles to be derived from that judgment. In Correia v University Hospital of North Staffordshire NHS Trust [2017] and Diamond v Royal Devon and Exeter NHS Foundation Trust [2019], however, the Court of Appeal sought to clarify the scope and limits of Chester. This commentary sets out the scope and limits of Chester in light of those judgments and considers the extent to which they can be said to be vindicating patient autonomy. Drawing upon Coggon’s typology of autonomy, it concludes that future judgments should utilise that typology to explicate which understanding of autonomy they are seeking to protect.
Highlights
In Chester v Afshar [2004], the House of Lords stated they were departing from the traditional rules of causation in order to vindicate the patient’s right of autonomy
INTRODUCTION1 Medical law roots the requirement of informed consent in the need to respect patient autonomy,[2] but claims relating to inadequate informed consent are situated in the tort of negligence.[3]
Prior to Chester v Afshar,[5] this link was based on an assertion that ‘but for’[6] the negligent non-disclosure, the patient would not have participated in the treatment in question.[7]
Summary
Louise Austin (2020) Towards a Coherent Model of informed Consent, University of Bristol. A two-stage procedure had been performed instead of the intended three-stage approach, Simon LJ (who gave judgment on behalf of the court) noted that the omission of the third stage had not altered the nature of the procedure and so it did not vitiate consent.[36] This seems to be a straightforward application of Chatterton v Gerson.[37] The failure to discuss the consequences of not performing the third stage did not amount to negligent non-disclosure because the surgeon had intended to perform the third stage.[38] the Chester point did not have to be addressed in light of the finding that disclosure had been adequate, Simon LJ did set out his interpretation of Chester’s ratio He noted that the Chester exception was intended to be narrow and applied: 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, the injury is to be regarded as being caused by the breach of the duty to warn and this is to be regarded as a modest departure from established principle of causation.[39]. Citing Correia the judge went on to find that Ms Diamond could not come within the Chester exception because even if being told she could not carry a child was an injury, it was not ‘intimately connected to the duty to warn’.47 Ms Diamond appealed to the Court of Appeal
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