Mr Justice Birss, in David Price v Cwm Taf University Health Board [2019] EWHC 938 (QB) serves up a reminder and, in the same appellate Judgment, a decision on whether patients should be told about NICE guidelines in the information-delivery process that precedes consent.
The Reminder
This didn't take up much of Birss, J's time. It is a succinct reminder upon appealing findings of fact:
7. Both grounds of appeal relate to findings of fact by the trial judge. 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?
8. In Wheeldon v Millenium Insurance Co. Ltd [2018] EWCA 2403 Coulson LJ considered the principles applicable to appeals on a finding of fact. He set out a number of passages on the point: paragraph 114 from the judgement of Lewison LJ in Fage v Chobani [2014] EWCA Civ 5 which includes the well known observation about a judge’s reasons; paragraph 67 from Lord Reid’s speech in Henderson v Foxworth [2014] UKSC 41; and paragraphs 39 and 40 of Longmore LJ in Grizzly Business Ltd v Stena Drilling Ltd [2017] EWCA Civ 94. After that Coulson LJ summarised the position as follows:
“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. ”
The NICE Guidelines point
The case related to knee operations and it was argued that there was no valid consent because the patient had not been told that the operation was outwith the NICE guidelines. The only authority cited was our old friend Rose v Thanet (https://publishing.rcseng.ac.uk/doi/abs/10.1308/rcsfdj.2017.36?journalCode=fdj):
30.That leaves the argument that in order for Mr Price to have given informed consent in these circumstances he had to have been additionally and expressly informed that the operation was not in accordance with the NICE Guidelines. There is certainly no suggestion that he was so informed and so if this is a good point the consent process was flawed. The only authority cited in support of the proposition was R (Rose) v Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin) in which the CCG was found to be have been obliged to provide clear reasons for not following NICE Guidelines. However I do not accept that such a public law duty can or should be transposed by analogy into the process of obtaining a patient’s informed consent. The appellant’s skeleton argument also refers to Bolitho v City & Hackney Health Judgment Authority [1998] AC 232 but that case is not concerned with the question arising here about what needed to be put to Mr Price as part of the consent process.
31.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. Whatever the position might be in other cases, I cannot see how the absence of a reference to these NICE Guidelines in these circumstances amounted to an infringement of Mr Price’s personal autonomy or vitiated Mr Price’s ability to make decisions for himself.
Inconsistencies with NICE guidelines are often pleaded as demonstrating a breach of duty or a vitiation of consent and of course the point is always defended by saying that they are guidelines only.
NICE itself says:
"Your responsibility
This guidance represents the view of NICE, arrived at after careful consideration of the evidence available. When exercising their judgement, healthcare professionals are expected to take this guidance fully into account, and specifically any special arrangements relating to the introduction of new interventional procedures. The guidance does not override the individual responsibility of healthcare professionals to make decisions appropriate to the circumstances of the individual patient, in consultation with the patient and/or guardian or carer."
So it seems that both Birss, J and NICE agree. All cases are fact sensitive and in some cases the Guidance should be observed and/or communicated, in others not. Don't forget that there is potentially a difference between the status of Guidance and Technology Appraisal Guidance.
Finally, remember Hill's Technology Appraisal Guidance No.1: A glass of Rioja and some sunshine are synergistically most efficacious. Have a nice evening.
Mike