Border v Lewisham

Border v Lewisham confirms the importance of consent and what issues can be raised at appeal

By Richard Borrett

In the recent Court of Appeal case of Border v Lewisham the Claimant had suffered an injury as a result of a cannula being inserted into her arm, despite the Claimant telling the doctor that she had recently had a left mammectomy and axillary node clearance, and that inserting a cannula into her left arm carried the risk of oedema.

The trial judge had found that the doctor had made a quick and silent decision that the left arm was the only viable site for the insertion of the cannula and did so without communicating this to the patient. The Judge had found that this was in accordance with recognised practice and was not negligent. 

The Claimant appealed on the basis that the lack of consent meant the treatment was negligent. The Defendant argued that the Claimant had 'impliedly consented'. 

The Court of appeal held ([24]):
"The duty to obtain the patient's consent to treatment is a fundamental tenet of medical practice and is inherent in the case-law concerning the duty to take reasonable steps to warn a patient of the risks of treatment so that the patient can make an informed decision about whether to consent to it (see, for example, Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134)."

This is certainly not a ground-breaking case, but it does reinforce the importance of consent, even where a course of treatment may be in accordance with recognised practice.

Additionally the case raised an important procedural point. The issue of consent was not seen by the Claimant's counsel as an important part of the case. It was not in his skeleton, and the Judge obtained apparent indications during the trial that consent was 'not the issue'. The CA said that "Thus the judge was right to consider that neither party was attaching importance to the issue at the trial" (22).

However the CA said ([24]):
"It seems to me to be open to the claimant to contend on the appeal that the finding that the procedure was carried out without the claimant's consent should have led the judge to find a breach of duty on the part of Dr Prenter even though that was not the way the claimant's case was being advanced at trial". 

This conclusion was based on the fact that the issue had been pleaded, where the allegations of negligence included "Failing to heed the warning given by the Claimant that she should not have any injections into her left arm …" and "Proceeding to place an intravenous cannula into the Claimant's left arm when the Claimant objected to this" ([23]).

This may be a useful decision therefore in cases where there are a wide range of allegations of negligence, and an appeal is sought on an issue which, though pleaded, was not perhaps the 'thrust' of the case at trial.