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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Burke v Leeds Health Authority [2001] EWCA Civ 51 (29 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/51.html Cite as: [2001] EWCA Civ 51

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H.H. JUDGE R.C. TAYLOR
sitting as a Judge of the High Court

		Royal Courts of Justice Strand, London, WC2A 2LL Monday 29th January 2001

LORD JUSTICE SCHIEMANN :

1. This is the judgment of the court.

Introduction

2. Before the court is an appeal by the defendant Health Authority who, after a trial limited to liability only in front of H.H. Judge R.C. Taylor sitting as a judge of the High Court, have been held liable for negligence. The successful claimant was a small boy, Marc, who sued by his father.
3. The judgment against the authority is not based on negligent treatment but on negligent advice. The judge found that the treatment advised and carried out was the optimal treatment and that to start that treatment at the time when it was started was not negligent from a medical standpoint. The alleged negligence found by the judge consisted in not making clear to the parents of the boy immediately before the commencement of the treatment that treatment could be delayed by a few months albeit that the delay would involve exposing the child to a danger of a relapse of his cancer during the period of delay which relapse would probably be fatal. The judge found that had the parents been advised of the possibility of delay they would have refused consent to the immediate commencement of the treatment notwithstanding the danger of relapse. He found that this decision to delay would have been the result of the fraught state in which the parents naturally were just before treatment commenced. He found that after two or three months the parents would have realised the wisdom of the doctors' advice and would then have consented to the immediate beginning of the treatment.
4. Marc is now in his teens and is very severely disabled both mentally and physically and suffers from spastic quadriplegia as a result of an encephalopathic episode. That disablement results from and was a side effect of intense chemotherapy ("the intensification block") given to him in order to treat acute lymphoblastic leukaemia ("ALL") when he was three years old. The risk of that side effect eventuating was correctly seen by the doctors at the time as being very small. By contrast, the parents at least one of whom was a university graduate albeit not medically qualified, instinctively felt that if this treatment were to be given to their child, who had already had one encephalopathic episode following earlier chemotherapy, he might well have another encephalopathic episode. The parents were in the event correct as to their assessment of the effect of giving this treatment to Marc. Exactly that happened to him which they feared and which the doctors had said was most unlikely to happen.
5. The treatment administered by the doctors was in accordance with good medical practice at the time. The doctors were correct in their assessment of the risk of a further encephalopathic episode as negligible. Marc's parents gave their consent to that treatment following many days discussion with the doctors. The parents maintain, and the judge found, that they gave their consent because the doctors treating Marc unconsciously failed adequately to make clear to them that, although from a medical point of view the optimal treatment for Marc was the immediate beginning of the administration of the intensification block on 19^th April 1989, the postponement of the treatment for a few months was a possible option. If the parents had not consented to immediate treatment the doctors would not have gone ahead.

The judgment below

6. The judge clearly took great care with his judgment and it is useful to set out its most salient parts.
7. In late 1988, when he was aged 2 years and 8 months, Marc developed symptoms of ALL. On 3.12.1988 he was admitted to the regional paediatric unit at St. James's hospital. He received induction therapy which was supposed to last 4 weeks and be followed immediately by an intensification bloc and then maintenance therapy for 2 years from the date he achieved complete remission. The treatment was administered by a team headed by two consultant paediatric oncologists Professor Bailey and Dr. Lewis.
8. Marc began his induction therapy on 4th December 1988. By 14th December he was found to be suffering from a severe Encephalopathy. Thereupon a drug which was used in the original mixture was removed. He thereupon improved. By 3rd January 1989 the leukaemia appeared to have entered into remission. Because of the Encephalopathy it was decided to postpone the intensification block until April. From 24th January onwards he was given maintenance therapy but this was only about half the usual dosage until 7th March. He had continuing problems which included coughing, vomiting, internal bleeding, infection and a low blood count. In the first week of March there was a sudden improvement in his cerebral performance. He was discharged home on 14th March 89 with reviews scheduled at out-patient clinics. On 20th March he was seen at an out-patient clinic. He was continued on the maintenance therapy and it was planned to begin his intensification block treatment on 21st. April. He attended 2 further out-patient clinics on 22nd March and 4th April and improvement was noted on both occasions. However on 11th April he was re-admitted to hospital with a history of having been unwell for the past 7 - 10 days including vomiting. He was detained in hospital and his parents remained with him. His vomiting continued but he was otherwise well. On 18th April 89 he underwent an endoscopy which showed minimal lower oesophageal inflammation. Following Marc's re-admission to hospital, discussions took place between his parents and Professor Bailey, Dr. Lewis and other members of their team. In the light of what they were told the parents eventually gave their consent to Marc receiving an intensification block, beginning on 19th April 89. Sadly this resulted in severe Encephalopathy.
9. The joint evidence of the medical experts on each side included the following:

"There is no doubt that the whole clinical approach to the management of ALL is a balance of risks between toxicity and efficacy. After a thorough review of the situation we feel we would have advised continuing with therapy and at that time we would have attempted to give a course of intensive therapy when there was a period of relative stability in his condition.... The only reason for delaying the block further would have been because of vomiting, fever or an inadequate blood count. The endoscopy had appeared to rule out serious causes for vomiting. Fever only commenced after starting treatment...... his blood count was satisfactory before giving the intensive block...... the normal practice would be to discuss rationally the pros and cons which would include risks and the survival advantage of the intensive block".

10. In that report the experts did not specifically address the advantages and disadvantages of delaying the commencement of the intensification block for a few months.
11. Under the heading "What advice ought to have been given?" the judge said this:

"The doctors' basic duty was as the experts say in their joint report, 'to discuss rationally the pros and cons [of the various options available] which would include the risks and survival advantage of the intensive block'.

In considering what ought to have been said in the course of such discussions, I think that the starting point has to be the doctors' own assessment of the situation and whether their assessment was one which an ordinary paediatric oncologist, exercising the ordinary skill of an ordinary competent man exercising that particular art could reasonably have arrived at.

…..

In view of the novelty and uncertainties of [Marc's] case, I do not think that the doctors could reasonably have been expected to do more than advise on the risks and advantages of each option in fairly broad and unquantified terms. What then should the doctors have advised the parents in the period prior to their giving consent to the intensification block? In my view ... they ought reasonably to have advised the parents basically along the following lines:

There were four options to consider. The first was to give Marc no further treatment. This would offer little or no chance of cure..... without any further treatment, there was a very high probability of a relapse, in which event his chances of survival would be very slight.

The second option was to continue simply with maintenance therapy..... it avoided any of the risks involved in an intensification block. But in Marc's case, .... it offered approximately half the chance of successful cure that an intensification block did. He would remain at great risk of relapse.

The third option was to give Marc an intensification block on or shortly after 19th April 1989, provided that he was well enough. After the endoscopy, there were no medical reasons for supposing that Marc was not well enough. This option represented optimal treatment for Marc. It offered a far better chance of a successful cure than the first two options….

The fourth option was to postpone the intensification block for up to several months. This would not make a vast difference to Marc's chances of a successful cure, but the longer the delay the greater the risk of relapse. It was important to treat children as early as possible."

12. Later in the judgment the judge has a heading "What advice were the parents given?" . He had earlier recorded

"Basically what the parents say is that they only consented to an intensification block because they were given no other realistic option if they wished to save Marc's life. They were afraid that the block would cause Marc to have a further Encephalopathy, despite the doctors' reassurances. Had they been given the option either of simply continuing Marc on his maintenance therapy, or at least of postponing the block, they would have taken it; but neither of these options was even discussed with them. They were just told that, if Marc did not have the block, he would die."

13. He makes these findings of fact in relation to the question of what advice was given:-

"I think that the parents are likely to mistaken when they say that all of these options were never discussed with them.... I find it extremely improbable that all possible courses were not canvassed at one stage or another.... One piece of Mr. Burke's evidence which I found particularly convincing was when he described how, as the discussions progressed "we were told with increasing conviction that Marc "could" - then "would" - "will" die".... Clearly the discussions in question were very lengthy and extended over several days.... I am satisfied that by the time Mr. & Mrs. Burke gave their consent to the intensification block, they did so on the basis of advice from the doctors which was to the effect that it was essential that Marc should be given a block as soon as possible and that there was no other viable option. Whatever words may actually have been used ... I accept that the parents reasonably understood that the necessary implication of this advice was that otherwise Marc was extremely likely to have a relapse and die. I have reached this conclusion for two main reasons:

First and foremost,... I have no doubt that if the parents had been offered as a realistic option the postponement of the intensification block for up to several months, they would have accepted it; and

Second, Professor Bailey said in his letter dated 30th July 1991 that 'in order that he should survive the leukaemia we felt it essential to proceed with a late course of intensification'; and, in his witness statement, that the option of not providing Marc with an intensification block 'was simply not a viable option' " [ the judge's emphasis].

14. Under the heading "Was the doctor's [sic] advice negligent?" the judge said:

"…..

I do not think they would necessarily have been negligent if they had merely exaggerated (or, as counsel put it, "over-egged") the risks of not giving Marc an intensification block. But ... they went further than that and effectively ruled out any other option than the giving of an immediate block. As both of them acknowledged in their evidence, there was a vital difference between saying "this represents the optimal solution" and saying "there is no other option"; and that the latter wording was something that should not have been used to the parents. Accordingly, in my judgment, in giving the advice which they did, they fell below the standard of an ordinary man exercising their particular art.... I do not think that anyone at [the hospital] consciously or deliberately misled the parents. … I think that it was something that came about inadvertently in the course of long drawn out and taxing discussions in a very difficult and anxious case. There was, in my view, no moral or ethical failure on the part of Professor Bailey, Dr. Lewis or anyone else on their team. The general purport of their advice was absolutely right: their error was in conveying it in terms that were too categorical."

15. Under the heading "What would the parents have done if properly advised?" the Judge concluded:

"Mr. & Mrs. Burke are clearly intelligent people, devoted to their children and anxious to do their best for them. If they had been emotionally calm, and in a rational and undistracted frame of mind, then - if they had been advised in the terms which I have found that they ought to have been - I think that they would probably still have agreed to Marc receiving the intensification block on the 19th April 1989. But they were very far from being calm, rational or undistracted at the relevant time. They were agitated, apprehensive and distressed.... They were, I accept, desperately anxious to be able to return to their home and resume a normal life there with both their children. In these circumstances ... if the parents had been offered the option of at least postponing the block for up several months, they would have accepted it..... In due course they should have been able to address the question of Marc's future treatment in a much calmer and more rational state of mind. Once this happened, I am sure that, as responsible and caring parents, they would have accepted that Marc should receive the optimal treatment and undergo an intensification block. I cannot believe that, once they were comparatively back to normal, they would have settled for sub-optimal treatment for him... I think it most probable that the longest the parents would have allowed time to go by before Marc was given an intensification block would have been a further 3 months, that is to say no later than 19th July 1989."

The application for permission to advance an additional ground on the Appeal

16. The Authority was given permission by Hale L.J. to appeal on a number of grounds. She however refused permission to advance the following ground:

"The learned Judge found that the treating clinicians effectively ruled out any option other than the giving of an immediate block. That finding of fact necessarily implies that the clinicians deprived the parents of knowledge, choice or both. The learned Judge was not entitled to come to that finding on the evidence before him because:

a) The learned Judge found as a fact that all options were discussed with the parents. Those options were to do nothing; to continue with maintenance therapy; to give the intensification block as planned or to postpone the block

b) The learned Judge found that the parents were likely to have been mistaken in saying that the options were never discussed with them.

c) The learned Judge found as a fact that the parents gave their consent to an intensification block. The seeking of such consent implies a choice.

d) Mr. Burke consistently made clear that the advice that there was no other option referred to the question of whether the claimant should have any treatment if he did not have the intensification block. The learned Judge rejected Mr. Burke's evidence that other options were not discussed. It was wrong then to utilise Mr. Burke's evidence to find that any other option was ruled out."

17. Hale L.J. refused permission because she considered that the Judge was entitled to find that all the options were canvassed with the parents but that by the time they gave their consent the advice was that there was no other viable option. On a renewed application for permission to argue this ground made before us Lord Brennan Q.C. submitted that the court should not give permission for the additional ground to be argued. The finding that at the time the parents gave their consent the doctors effectively ruled out any option other than the giving of an immediate block was a finding of fact which should not be disturbed by this court. There is clearly some force in the point thus expressed. But much turns on what precisely the judge found and, we thought the most time efficient course was to permit the point to be argued and then, if it was necessary, to give judgment as to whether it was a good point, rather than to have a preliminary argument as to whether the argument could be advanced and give a preliminary judgment upon that.

The law

18. Our attention was drawn to Thompson v Blake-James [1998] Ll.L.R.Medical 187 a decision of this court in a case which turned on advice given to parents of a small child, Emma, in relation to vaccination. Beldam L.J. in a judgment with which the other members of the court agreed said this at page 193:

"Where the advice is given by a skilled adviser to enable the person he is advising to reach an informed decision, it seems to me that it must be shown that the adviser could at least foresee that from its nature and the circumstances in which it is given his advice may have a significant influence when the person advised takes the decision. … It is also important to bear in mind that the duty owed by [the doctors] was owed to Emma although it could only be performed by giving advice to her parents. The doctors' duty was to take reasonable care to see that Emma's parents were in a position to make an informed choice in Emma's best interest."

The appellant's submissions

19. Mr Robert Francis Q.C. drew our attention to the following findings by the judge:-

i) The risk of Encephalopathy eventuating as a result of the treatment was almost non-existent;

ii) The doctors' own assessment was a competent one; that assessment included the following elements –

iii) if no further treatment for Marc's leukaemia were provided there was a very high probability of relapse, in which event the chances of survival would have been less than 1%;

iv) the administration of the intensification block represented the optimal treatment for Marc and the other options open to them carried greater risks for Marc;

v) it was not essential to have the intensification block on the 19^th April; it was essential to have it as early as possible balancing the risks of relapse against the need for Marc to be as well as possible; the longer the delay the greater the risk of relapse.

vi) The doctors could not reasonably have been expected to do more than to advise on the risks and advantages of each option in fairly broad and unquantified terms;

vii) All the options including delay were canvassed with the parents at one stage or another;

viii) During a three month period of delay there would be a relatively small risk of a relapse but, if there were such a relapse, there would be a very high risk of it proving fatal^;

ix) The only advantage of delay for Marc would be if he were not well enough to be able to cope with the intensification block;

x) By April 19^th he was well enough;

xi) If just before the 19^th April the parents had been calmer they would have consented to the commencement of the intensification block;

20. The parents were asked for consent and in fact did consent to the commencement of the intensification block treatment.
21. Mr Francis submitted

i) the advice that absent the administration of the intensification block there was a high risk of relapse followed by death, was correct;

ii) delaying the commencement would only have been justified medically if Marc had not been well enough to take the treatment;

iii) the parents thought that his sickness meant that he was not well enough to take the treatment^;

iv) however, the parents were wrong : Marc was well enough to take the treatment;

v) the parents were anxious, not primarily about the timing of the administration of the intensification block but about the fact of its administration; that is why the joint experts' report did not deal with postponement save in the context of Marc not being well enough;

vi) there is no indication in the evidence that the parents ever said to the doctors anything such as "we reluctantly accept your advice that an intensification block is necessary but can we have Marc home for a few months before it is administered?";

vii) the parents were correctly advised in broad terms of the disadvantages attendant upon delaying the commencement of the treatment;

viii) the purpose of seeking the consent of the parents is to secure the welfare of the child and that, in circumstances where that which is advised is something to which rational parents should agree, a failure to mention a course of action or treatment which reasonably is not regarded by the doctors as being in the best interests of the child is not a breach of any duty owed to the child – there is no obligation to canvas irrational options;

22. In the light of all of the foregoing the failure by the doctors to repeat just before the commencement of treatment that the postponement of treatment by a few months was a possibility did not constitute a breach of the doctors' duty to the child.

The Respondent's submissions

23. Lord Brennan's submissions went as follows:-

the issue as to whether the parents were in a position to make an informed choice before coming to their decision as to whether or not to consent to the beginning of the intensification block treatment was an issue of fact and an issue for the judge not for this court;

the doctors must have known that the parents were in a distressed state and therefore should have taken extra care to make their advice clear and to ensure that, at the moment of decision, the parents had all the relevant facts at their command;

the principal finding of fact was that the advice given at that moment was to the effect that it was essential that Marc should be given a block as soon as possible and that there was no other viable option;

so to advise was negligent because a short postponement was a reasonable course of action and the doctors by what they said effectively ruled out any option other than the giving of an immediate block; they should have pointed out that the risk of a relapse in the next three months was only slight;

such negligence caused the damage that occurred because if the parents had been offered the option of at least postponing the block for up to several months they would have accepted it;

the judge's finding that had the parents been in a calm, rational and undistracted frame of mind they would have agreed to the giving of an immediate block, was unnecessary in that it does not affect the primary findings of duty and causation;

the finding was moreover irrelevant in that they were not in such a state of mind nor would any normal parent have been in such a state of mind;

the parents were desperately anxious to return home with both their children and not to have to stay with Marc in the hospital;

the judge had not found expressly or impliedly that the parents would have been acting unreasonably had they refused consent to immediate treatment and insisted on a postponement; they were entitled to give weight to Marc's continuing vomiting and to the beneficent effect of a return home together and to conclude that the benefits of a delay were worth the attendant slight risk of a relapse during those three months;

in any event, parents are entitled to refuse consent without giving reasons – if this threatens the welfare of the child then an application can be made to the court;

it is wrong and likely to work mischief to seek to equate treating a doctor's view of optimal treatment (as against other alternatives) as being synonymous with the best interests of the child regardless of the parents' views and decision as to the alternatives.

Conclusion

24. We are conscious that this is a court of review, that we are not trying this case and that the judge clearly took care with this tragic case. However, it is right to note that the task of the judge in establishing precisely what advice was given in what terms and when, was an impossible one to perform with minute accuracy since no notes were taken of the conversations and the writ was not issued till nearly ten years after those conversations. The judge found Mr Burke, Professor Bailey and Dr Lewis each to be honest and impressive witnesses who would not knowingly mislead the court and each of whom was trying to tell the truth as he recalled it. In those circumstances the advantages which a trial judge has over this court because he has seen the witnesses – and which normally lead to this court being very reluctant to overrule a finding of fact by the judge – are not of great significance. We are not here concerned so much with primary fact as with the conclusions to be drawn from those primary facts. In particular whether his findings of primary fact justified the judge in finding these consultants negligent.
25. The judge rejected the parents' primary contention that the complete avoidance of the intensification block and the continuance of the maintenance therapy only would have been advisable in Marc's case. The judge rejected the parents' assertion that they were never told that postponement was an option but that each day of postponement was another day during which Marc might suffer a remission. Those findings are not challenged.
26. The claimant's case as it was put in his opening before the judge by his counsel was that "there was an over-egging of the pudding as to the value of the intensification block^", "the parents say that they would not have given consent for an even later intensification block^", "it is argued on this side that in presenting the Burkes at that stage with a situation which did not include the possibility of there being no further high intensity chemotherapy, that the doctors were failing in their duty^", "had the true pros and cons been put to the parents they would have opted for maintenance therapy only. At the very least, and in the alternative, they would have opted for a postponement^" It is clear to us that, while the judge found for the claimant, he did so on a basis which had not been at the centre of the claimant's argument before him. It is this which led the judge at the end of his judgment to say "I have made my decision on the basis of the issues as they crystallised in the course of the evidence and were argued in the course of counsel's final submissions. I am concerned however, as to whether the ground on which I have found in the claimant's favour could properly be said to lie within his case as originally pleaded in the Statement of Claim".
27. In the event the authority took no pleading point. We do not in the least criticise the judge for what happened. It is quite common for the evidence not to go as well for a claimant as he hopes and for him to fall back on an alternative submission which may still save something for him. However we do consider that in all the circumstances it is right for us to look at the totality of the evidence as given before the judge and to consider his finding that the doctors were negligent in their advice with particular care.
28. Having done so it is clear to us that the judge was entitled to find that the doctors did lay all four options before the parents with their various pros and cons. He was also entitled to find that at the time just before the operation when the parents finally gave their consent or failed to withdraw their earlier consent they did not have clearly in their minds what had earlier been said about postponement and that the doctors were indicating to the parents at that point that if they did not go ahead with the intensification block then Marc would die.
29. The judge held that it was not negligent to advise that the intensification block was the best treatment for Marc and that he was well enough to undergo it on 19^th April. Where in our judgment the judge fell into error is in not having in the forefront of his mind that, the options having been explained earlier to the parents, the focus of the discussion thereafter was on whether to go ahead with the intensification block at all and on whether Marc was well enough to take the intensification block. When considering whether what the doctors said and failed to say was negligent this is critical. One of the factors which conditions what a doctor must tell his patient or his patient's parents is what the anxieties of those persons are at the time when he is giving them his advice.
30. It seems to us that the situation which faced the doctors comprised the following elements -

distraught parents worried about whether their child was well enough to submit to intensive therapy and worried about whether intensive therapy was in any event the best treatment;

he was well enough to undergo it;

intensive therapy was the optimum solution for Marc;

there was no medical advantage in postponing it;

there was a small risk that postponement for a few months would lead to the death of Marc;

the parents had not given any reason for wanting a postponement other than their fears that Marc was not well enough to submit to the treatment and that intensive therapy was the wrong treatment for their child;

31. The doctors obtained the parents' consent.
32. Clearly what a doctor must tell a patient or his parents at what point and with what force are matters of clinical judgment for the doctor. Much will depend on what the patient or his parents' worries are. It seems to us that in the circumstances of the present case it was not negligent for the doctors to fail to remind the parents just before the operation that there could be a postponement of the operation. The treating doctors including two consultants, who were experts and whose judgment in all other matters was found to be correct by the judge, did not take the view that it was appropriate to act or advise otherwise than they did. No expert evidence has been called to suggest that a failure to remind the parents that a delay of a few months involving a small risk of a relapse amounted to a breach of the duty of care to the child.
33. In all those circumstances we consider that the judge erred in his finding that the doctors' advice fell below the appropriate standard to be expected of consultants. We therefore allow this appeal.