Metcalf v Royal Devon & Exeter NHS Foundation Trust – causation where Bolitho meets Montgomery

On 19 December 2019 judgment was entered in the High Court for the Defendant in Metcalf v Royal Devon & Exeter NHS Foundation Trust [2019] EWHC 3549 (QB).

The case arose out of the admitted failure by the Defendant Trust to diagnose the Claimant’s husband’s lung cancer; accordingly it was concerned with factual causation.

In terms of factual causation the leading authority is Bolitho v City and Hackney Health Authority [1998] AC 232. Bolitho sets out a two stage approach in such a case (per Lord Browne-Wilkinson at 240G):

1. What would the treating clinicians have done had the breach of duty not occurred?
2. Is the factual answer to (a) consistent with a competent standard of care at the material time?

As the House of Lords observed in Bolitho, the first of these questions is one of fact in respect of which the Bolam test is irrelevant. The Bolam test is central to the second question.

This case is of interest because the Claimant argued that the second stage of Bolitho should be considered in the context of the decision in Montgomery v Lanarkshire Health Board [2015] AC 1430, even though the question of consent and the effect of Montgomery on the advice about treatment that should have been given had not been pleaded. Whilst critical of the Particulars of Claim the Court permitted the Claimant to argue that the second stage of Bolitho enabled the Claimant to raise the issue of consent. The evidence was that the Trust as a matter of fact would not have recommended either surgery or radiotherapy with curative intent because of the risks of treatment when the Deceased’s comorbidities were taken into account. The Claimant’s experts accepted in cross examination that the evidence of the Defendant’s clinicians in this regard was reasonable. Nonetheless it was argued by the Claimant that those treatments should have been offered despite the risks and that the offer would have been accepted.

The Court accepted the Defendant’s case that even if the Deceased’s cancer had been diagnosed and he had been provided with the full range of treatment options, including those not recommended by the Defendant’s clinicians, he would not have elected to undergo treatment. As a result the claim was dismissed. Once again this judgment underlines the difficulties that causation poses to claimants in cases such as this.

Metcalf v Devon & Exeter NHS Trust – Judgment 19th December 2019

Laura Johnson was instructed by DAC Beachcroft on behalf of the successful Defendant Trust.