A recent Supreme Court decision cements the move towards a high threshold for patient consent, and the demand for an involved and highly personalised approach by the professional securing it.
The Claimant suffered serious and constant pain in her back and leg after undergoing a discectomy performed by the Defendant. The surgery was not performed negligently, but the advice given by the Defendant was held to fall short of that required to ensure informed consent. The Claimant gave evidence that the “comforting and optimistic advice” she received “failed to give her full and accurate advice about the risks and benefits” of the surgery, and that such reassurances led to a less than informed consent.
The Supreme Court found that the Claimant would not have consented to the operation had she been given “proper advice”. On this basis, although the procedure was not performed negligently, the Defendant was liable for the damage sustained.
The advice and its shortcomings
The Defendant had given advice to the Claimant three times before the surgery: firstly in a 5 minute telephone conversation, secondly in a follow-up letter and thirdly in a brief conversation before the operation.
The criticisms levelled by the Court focussed on:
- An overestimation of the prospects of success
The Defendant advised that the chance of eliminating the Claimant’s leg pain was “at least 90%” and that there was “every chance” that her back pain would “settle as well”.
The Court heard expert evidence which put this figure closer to 85%. The Court held that this was a material difference, and also attached weight to the language of “at least” that had been used.
- An underestimation or minimisation of the risks
The Defendant described the risks of surgery as “fortunately very small”, advising there was a 0.1% risk of nerve damage.
Having heard expert evidence, the Court concluded that the risk was infact 1% rather than 0.1%, and again held this to be a material difference.
- A lack of “adequate time and space” given to the doctor-patient dialogue
This is a significant strand of both the decision in Thefaut and the decision of Montgomery v Lanarkshire Health Board  UKSC 11 on which it relied.
Thefaut cements the move towards a high threshold for patient consent, and the demand for an involved and highly personalised approach by the professional securing it.
It is clear from this judgement that proper communication is deemed essential to informed patient consent. The Court in Thefaut refer to “the centrality of dialogue”, and observe that this is a question of adequacy rather than means. In practical terms, this means electronic communication may well be sufficient, but proper doctor-patient dialogue will be assessed by whether it has been afforded “adequate time and space”. This is at the heart of a free and informed choice.
This is, in part, where the Defendant in Thefaut fell down: neither the 5 minute phone call nor the pre-surgery conversation gave “adequate time and space” for informed consent to take shape.
It is clear form this that a pre-surgery conference alone will never fulfil the time and space requirement. The Court noted that the surgeon is likely to be under considerable time pressure at this point, and the patient will be “psychologically committed to going ahead”.
This poses interesting questions for those undertaking private operations where the time between the initial consultation and the surgery is often short.
The decisions in both Thefaut and Montgomery also emphasise the need to “de-jargonise” communications, to ensure that the advice is conveyed in a comprehensible manner. Caution in using percentages is advised. The Court noted these can “convey false degrees of certainty”.
Percentages aside, the Court took into account that the Claimant in Thefaut had formed an overall impression from the tone of the letter, which was significant. She had understood it as giving a “very high degree of reassurance that the back pain would resolve more or less completely”.
In addition, informed consent will require advice specifically tailored to the individual patient and their circumstances.
The decision cited the following reasoning in Montgomery:
“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments…
The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk”
The Court in Thefaut ruled that the “test of materiality” combines subjectivity with objectivity. In the same stroke, the Court acknowledged the inherent difficulties of this:
“Some characteristics of a patient are obvious: In particular that person’s actual medical condition which would include its severity. Other personal factors may be less self-evident: such as the patient’s tolerance for or stoicism towards pain, or the ability to manage pain.
Other factors might be quite remote from the medical or physiological condition of the patient, such as the patients need to return to work, or the fact that the patient has suffered a recent event in his/her life (such as a bereavement or a divorce) which renders that person unusually fragile and (say) unwilling to take chances at that particular time”.
An example of this personalisation can be seen from the facts of Thefaut itself: the Court noted that, the Claimant was a cautious person by nature and accepted that she would have rejected the surgery altogether if she had understood the chances in relation to the back pain were in fact around 50:50.
The decision reinforces the move towards a high threshold for patient consent, as established in Montgomery. The Court in Thefaut went some way to providing a roadmap on how this should be achieved. However, whilst the Court touched upon the inherent difficulties of such a nuanced approach, there is little guidance on how precisely to navigate them.