Case: Border V Lewisham And Greenwich NHS Trust
Montgomery was overruled in Border v Lewisham and Greenwich NHS Trust  by the Court of Appeal.
It highlights the importance in considering whether a treatment will be acceptable and whether consent was given at all.
The claimant was 64-year old woman who had suffered a fracture to her right humerus.
She was taken to Queen Elizabeth Hospital in Woolwich’s Emergency Department. The duty SHO wanted her to place an IV line in her arm.
This was a routine procedure.
This was done even though there wasn’t an immediate need, but it ensured staff would be available in case of an emergency.
He couldn’t use her injured right hand and it was normal to use the left.
According to her, she had undergone a left breastectomy and had an axillarynode removal in her left arm.
The risk of oedema was high if he used his left arm.
There were two choices: to use the left hand or to wait and see if a catheter would be necessary at a later stage.
There was conflicting evidence about what exactly happened.
But the judge accepted the claimant’s account that the doctor did a ‘quick, silent calculation’ and communicated with her only to say, “I’m sorry but we really have to put it in your left arm.”
The doctor did not realize what was happening until the moment it was done.
After developing severe oedema in her left arm, she was permanently disabled.
In the first instance, the judge decided that the decision to insert the line in the left arm instead of waiting and watching was a good practice.
While an experienced consultant might be willing to take a calculated chance to wait and watch, this would be a bold decision for a senior member of the house.
The act of the defendant was not a breach.
Accordingly, the claim was denied at trial.
The claimant raised an appeal that was not presented at trial.
She claimed (and this was contested the Defendant) there had been a finding that the doctor hadn’t obtained her consent prior to inserting the cannula.
This ground was sufficient to allow her to appeal.
Even though the doctor followed accepted practice, it did not automatically mean that he was allowed to do so without consent.
The Court of Appeal agreed with the judge’s finding.
It noted that her consent allegations were covered by her plead case even though they were not raised at trial.
She could therefore appeal and argue that the lack of consent was a breach of her duty.
The Court of Appeal declared that the doctor breached his duty when inserting the catheter without the consent of the claimant and remitted the claim to the judge to determine the causation.
It declined her permission to amend the papers to add a claim for trespassing to the person. This finding would have shortened the process of determining causation.
Border v Lewisham and Greenwich NHS Trust doesn’t add to the case law about consent, but it does highlight the importance of proper pleading.
She would not have consented to the claim if she had pleaded guilty to trespassing to the other person.