Update on Thefaut v Johnson, para 1.26, page 18

In Spencer v Hillingdon Hospital NHS Trust[1] it was determined that the Montgomery approach to informed consent was simply a variant of Bolam and that the test was: would the ‘ordinary sensible patient’ feel justifiably aggrieved at not being provided with the information in issue. In Thefaut v Johnson[2] Green J (correctly in the authors’ view) rejected that approach, indicating that it failed to give sufficient weight to the subjective – and patient-centric – approach required by the Supreme Court in Montgomery.[3] 

The judge adopted a helpful rubric by, first, reaching a prima facie determination on the materiality of the information by considering the position from a predominantly objective standpoint, that is would a reasonable patient with the patient’s condition deem the risk material.

Secondly (and importantly) he then went on to consider the matter applying a more subjective criteria to test that prima facie position to ensure that meaning was given to the second limb of the Supreme Court’s materiality test in Montgomery namely ‘the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to’ the risk.

On the facts of Thefaut Green J found both limbs were satisfied: the key determinations were that there was a 1% and not 0.1% risk of nerve damage and that there was in fact a 50% risk that the surgery would not eradicate or significantly mitigate the claimant’s back condition (when she had been told there was a significantly higher chance of this happening).  Green J stressed that it was important to place the advice about the risks and benefits of surgery into the context of the advice given as to recovery absent the procedure – a recovery which would probably have occurred within a year:

‘As to this the hypothetical patient is, in substance, deciding upon surgery as a means of achieving accelerated pain relief. Absent the surgery a full recovery and a dimming of the pain over time is expected. The counterfactual is hence one where the patient is measuring the risks of surgery and the chances of rapid pain relief against an alternative of a steady reduction in pain ending in full recovery in a period where the outer limit is about 12 months. For this reason, logically, any increase in the risks of surgery and/or a reduction in the prospect of pain reduction assume an enhanced significance. Any worsening of the odds in relation to either or both of those two matters makes it intrinsically less likely that a reasonable patient would opt for surgery and more likely that he/she would either elect to avoid surgery or at the very least seek a second opinion.’[4]

It was also important to take into account precisely which of the risks and benefits in practical terms meant most in practice to the patient:

‘In the present case for a reasonable patient with Mrs Thefaut's condition by far and away the most important factor influencing factor was the back pain.’[5]

Given these two conclusions and the determination that there was a significant understatement of the key material risks, the judge’s conclusion that there had been a breach of the Montgomery duty to advise was unsurprising.

 

 

[1] [2015] EWHC 1058 (QB)
[2] [2017] EWHC 497 (QB)
[3] See paras 1.20 and 1.21 of main text
[4] §80
[5] §81