Following the case of Montgomery –v- Lanarkshire Health Board  UKSC 11, the law in Scotland in relation to informed consent was largely brought into line with the position South of the Border. It follows that damages may be awarded in Scotland where injury is sustained as a result of failure by the clinician to obtain informed consent. Informed consent is advising the patient (in a manner they can comprehend) of those risks and complications that the reasonable patient would consider material. Whilst proving that informed consent has not been obtained can be straightforward, it is often more complicated to prove causation – has the failure to provide informed consent actually caused injury and loss?
The recent English appeal case of Shaw –v- Kovac  EWCA CIV 1028 deals with the question of whether the mere failure to obtain informed consent inevitably means an individual’s right to self-determination and bodily integrity has been violated and as such should attract a standalone award for compensation, irrespective of and in addition to actual injury and loss.
The case of Shaw was brought by the estate of the late Mr Ewan. Mr Ewan had not given informed consent for a heart valve operation. He died during the operation. Liability in the case was not in dispute. At the original trial damages were awarded for pain and suffering, loss of amenity and financial loss. The case was appealed as the estate considered an additional separate award of compensation was necessary to recognise the failure by the defender to grant Mr Ewan the opportunity to make an informed decision to consent to the operation. The appeal was based on the fact that this failure interfered with Mr Ewan’s right to self-determination and bodily integrity.
The primary difficulty with this argument for the estate was that damages for pain and suffering, loss of amenity and financial loss had already been awarded based on the invasion of bodily integrity – damages for the consequences of the breach had already been provided.
The estate’s alternative argument was that a conventional award should be applied simply to recognise the breach of duty which Mr Ewan suffered.
The Court of Appeal rejected the estate’s arguments and found that such an additional award was neither necessary nor merited. They affirmed that clinical negligence cases where informed consent is an issue are properly brought based on negligence and that nominal damages are not recoverable, as damages (based on actual injury and loss) are essential to any negligence claim. They reiterated the long-standing principle that vindicatory or punitive damages (despite being recoverable in very limited circumstances) could not be recovered in cases such as this.
The Court of Appeal recognised that there could perhaps be other cases that would not be so clear cut as the present case, for example where damages for pain and suffering, loss of amenity and financial loss were not available despite informed consent not being obtained. Situations such as this frequently arise, for example: where a patient would not have gone ahead with a particular procedure had informed consent been obtained but the procedure was a success or where the patient did not give informed consent but if they had, they would still have elected to go through the procedure in question. In considering this point the Court of Appeal were mindful of the implications of allowing a nominal award for damages based only on the failure to obtain informed consent and how this could impact other types of case. There was awareness that a decision in this area would create implications that would not necessarily be restricted to informed consent clinical negligence cases. It could be said that all personal injury actions, to some degree, involve a violation of the right to bodily integrity. Therefore, if additional damages were allowed by the Court of Appeal, it may follow that in all cases where negligence was proven additional damages beyond pain and suffering, loss of amenity and financial loss could be claimed. It was felt that such an extension of the law would be unprincipled representing vindicatory or punitive damages that unlike in other jurisdictions cannot be recovered in Scotland or England and Wales
Shaw –v- Kovac may be appealed to the Supreme Court, however, it does seem that this case draws a line under any attempt being made by a Pursuer or Claimant to recover damages for the mere interference with bodily integrity irrespective of injury. It also continues to emphasise that in the laws of Scotland and England and Wales, in most cases, damages can only be awarded for those injuries or losses actually caused by the negligence and that vindicatory or punitive damages remain beyond the scope of recovery.