Thefaut v Johnston

Informed consent requires advice about material risks and reasonable alternatives. Materiality is assessed by asking what a reasonable person in the patient’s position would likely consider significant, while taking account of the patient’s particular circumstances. The assessment is fact-sensitive and cannot be reduced to percentages.

The doctor must provide comprehensible information through an adequate dialogue. A consent form or a brief discussion immediately before elective surgery will not ordinarily discharge the duty. Where inadequate advice caused the patient to undergo surgery, the causal connection may remain even if subsequent treatment caused or contributed to the injury. A clinical-negligence claim nevertheless fails where the evidence is too uncertain to establish breach or causation on the balance of probabilities.

Lisa Thefaut brought a claim against Francis Johnston arising from an elective lumbar discectomy. She alleged that Mr Johnston failed to provide adequate advice about the operation’s benefits and risks and that he negligently performed the surgery.

The court found that the written advice materially overstated the prospects of resolving back pain, understated the risk of nerve damage, and omitted the inherent risk that non-negligent surgery could worsen the condition. It also considered whether the subsequent evidence established negligent surgical damage and whether the injuries were instead attributable to a pre-existing condition described as Weakened Back Syndrome.

1. Informed consent. Applying Montgomery v Lanarkshire Health Board [2015] UKSC 11, the duty required advice about material risks and reasonable alternatives. Materiality depended on what a reasonable person in the claimant’s position would likely attach significance to, informed by the particular facts and characteristics of the patient. The advice had to be comprehensible and conveyed through an adequate dialogue.
2. The advice materially overstated the prospects of resolving the claimant’s back pain. The expert evidence placed those prospects at about 50 per cent, whereas the letter conveyed that they were close to the stated minimum of 90 per cent for leg pain. The advice also failed to disclose the up-to-5-per-cent risk that non-negligent surgery could worsen the condition and understated the nerve-damage risk. The prospect of natural recovery without surgery was an important alternative.
3. The court rejected the formulation in Spencer v Hillingdon Hospital NHS Trust [2015] EWHC 1058 (QB) that the Montgomery test was a variant of Bolam, or that it depended on the reaction of an ordinary sensible patient or justified grievance. The correct inquiry was the statutory-style reasonable-person-in-the-patient’s-position test.
4. On both objective and subjective analysis, the claimant would have rejected surgery or deferred it to obtain a second opinion if properly advised. The failure to advise was therefore causative. Consistently with Chester v Afshar [2004] UKHL 41, the causal connection was not defeated merely because the injury might have occurred during later revision surgery. Webb v Barclays Bank plc [2001] EWCA Civ 141 supported the conclusion that subsequent treatment ordinarily breaks the chain only in exceptional circumstances such as gross negligence.
5. Performance of surgery. Applying the traditional clinical-negligence approach described in Bolitho v City and Hackney Health Authority [1997] UKHL 46, the evidence did not establish who caused the dural breach, how it occurred, or whether it was negligent. The circumstantial evidence contained too many uncertainties. The court could not decide the claim by inference, hunch or educated guess. The clinical-negligence claim was dismissed.

The claim therefore succeeded on informed consent but failed on negligent performance of the surgery. Quantum was to be addressed separately.