Case: Border V Lewisham And Greenwich NHS Trust
Border v Lewisham and Greenwich NHS Trust  was a Court of Appeal decision before Montgomery. It highlights the importance of considering not only whether a treatment is acceptable but whether the patient has consented at all.
The claimant was a 64 year old woman who had fractured her right humerus. She was taken to the Emergency Department of Queen Elizabeth Hospital in Woolwich where the duty SHO wanted to put an IV line into her arm. This was standard procedure. There was no immediate need to do so but it ensured that staff would be ready should an emergency arise.
He was unable to use her injured right arm and normal practice would have been to use the left. However, as she told the doctor, she had recently undergone a left mammectomy and axillary node clearance in the left arm. As a result there was a risk of oedema if he used the left arm. The options were either to go ahead using the left arm or to wait and see whether a cannula would actually be needed at a later stage.
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There was a conflict of evidence as to exactly what happened. However the judge accepted the claimant’s account that the doctor in effect made a ‘quick and silent calculation’ and only communicated with the claimant to the extent of saying something like, ‘I’m sorry, but we really need to put it in the left arm’. She hardly realised what was happening until it was done.
She went on to develop a permanent and serious case of oedema in the left arm which caused significant disability.
At first instance the judge found that the decision to insert a line in the left arm rather than adopting a ‘wait and see’ approach accorded with accepted practice. An experienced consultant might feel able to take a calculated risk to wait and see but it would be a ‘bold decision for a senior house officer’. His action did not in itself amount to a breach of duty. The claim therefore failed at trial.
On appeal, the claimant raised a case which had not been argued at trial. She argued (and this was contested by the Defendant) that there had been a finding of fact that the doctor had not obtained her consent before inserting the cannula. On that ground there was a breach of duty in failing and she was entitled to judgment. The fact that the doctor acted in accordance with accepted practice did not mean he was entitled to do so without consent.
The Court of Appeal agreed that the judge had made such a finding. It also noted that allegations based on consent were within the scope of her pleaded case even if they had not been raised at trial. She was therefore entitled to contend on appeal that lack of consent entailed a breach of duty: ‘A finding of absence of consent to the insertion of the cannula leads inexorably to a finding of breach of duty in inserting it’.
The Court of Appeal granted a declaration that the doctor was in breach of his duty in inserting the cannula without the claimant’s consent and remitted that claim to the judge to determine causation. It refused her permission to amend the pleadings to add a claim of trespass to the person, a finding which would have short-circuited the issue of causation.
Border v Lewisham and Greenwich NHS Trust therefore does not add to the case law on what amounts to consent but it highlights the importance of proper pleading. Had she pleaded trespass to the person the claim would have succeeded without having to establish that with proper advice she would not have consented.