Thefaut v. Johnston (2017): A game changer for consent in elective surgery

All orthopaedic surgeons consenting patients for elective surgery should be aware of the recent High Court decision in Thefaut v. Johnston. Lisa Thefaut won her claim for damages against very experienced spinal surgeon Francis Johnston on the basis that the consenting process for an elective discectomy had been substandard. This decision sets the bar for clinicians higher than ever before. Mr Justice Green made clear that surgeons are required to engage in a consenting process tailored to the individual patient with detailed, accurate and realistic explanations of the pros and cons of surgery. This was a spinal case but a patient’s rights would be the same with any other operation. The Judge’s starting point was the landmark decision of the Supreme Court in Montgomery v. Lanarkshire Health Board in March 2015. Nadine Montgomery was pregnant and diabetic. The risk of shoulder dystocia during a vaginal delivery was about 10% and the risk of serious harm to her baby as a result was about 1%. A consultant obstetrician did not tell Ms Montgomery of the risk or offer her a caesarean section. This was because the consultant believed that, given the choice, Ms Montgomery would opt for a caesarean section, something which the consultant thought better avoided if possible. The Supreme Court decided that the time had come to assess consent on the basis of what the reasonable patient wanted to know rather than what a reasonable doctor chose to say. Where different treatment options were available, it should be the patient rather than the doctor who decides which option to take. Two limited exceptions were preserved where it would be ‘seriously detrimental to the patient’s health’ to provide information to a patient and cases of necessity, for example where an unconscious patient requires urgent treatment. The decision in Montgomery is …