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Duce v Worcestershire Acute Hospitals NHS Trust [2018] PIQR P18: The implications for Chester v Afshar - Michael Patrick, Hailsham Chambers

19/10/18. 1. Consider the traditional medical consent scenario: a doctor, in breach of duty, fails to advise her patient of a material risk of a given treatment. The treatment proceeds, the risk materialises causing injury, and the patient seeks compensation. There are three logical causation possibilities. But for the failure to properly advise:

  1. The patient would still have had the same treatment at the same time (“Category 1”);

  2. The patient would have had the same treatment but at a later time (“Category 2”); or

  3. The patient would never have had the treatment at all (“Category 3).

  1. Category 3 claims succeed on conventional principles. In Chester v Afshar, the House of Lords held by a bare majority that the instant Category 2 claim before it succeeded as well, even though the subsequent risk of injury would have been identical. In a dissenting judgment, Lord Bingham complained that the majority’s reasoning apparently permitted recovery in Category 1 claims as well:

But [on the approach of the majority]the claimant would presumably succeed even in a case … where it is found on the balance of probabilities that the claimant would have consented to the operation even if properly advised” (Chester, [9]).

  1. In Duce v Worcestershire Acute Hospitals NHS Trust [2018] PIQR P18, the claimant, Gail Duce, tested this proposition. In her case, the trial judge had found that, even with the additional advice for which she contended, she would have proceeded with surgery at the same time nevertheless. However, citing Chester v Afshar, Mrs Duce argued that causation was established nevertheless...

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