In theory, the UK law on disclosure of information to patients, is designed to protect the right of the individual patient to make decisions about their healthcare based on their own personal values. Autonomy has long been recognised as a dominant ethical principle. Atkins, K in Autonomy and the Subjective Character of Experience, (Journal of Applied Philosophy 2000) said that:
“Autonomy, in the liberal tradition, is generally understood as self-determination: the freedom to pursue one’s conception of the good life, just as long as it does not impinge upon another’s identical freedom.”
For years, the courts in the UK have failed to grasp this concept when dealing with legal responsibility for failures to disclose information to patients to enable them to make autonomous decisions. There has been over deference to the views of the medical profession and the courts have permitted the medical profession to dictate what information should be disclosed to patients when making health care choices. As a result, the UK courts when deciding cases based on failures to disclose information to patients have on occasion failed to protect a basic human right recognised by Article 8 of the European Convention on Human Rights [1].
Prior to the decision of the Supreme Court in Montgomery, [2] in deciding consent cases the courts in the UK were bound to follow the decision of the House of Lords in Sidaway v Bethlem Royal Hospital Governors [3].
In Sidaway the court declined to fully move away from the application of the Bolam test [4] in the UK law on information disclosure. The court endorsed the right of the medical profession based on their expertise to withhold information entirely or filter information given to patients based upon the practice of a hypothetical body of reasonable of clinicians. There was a lack of consistency in the decisions following Sidaway. The decision Chester v Afshar [5] heralded the impending death of medical paternalism and the scene was then set for an overhaul of the UK law on information disclosure.
[1] Journal of Applied Philosophy 2000
[2] Montgomery v Lanarkshire Health Board, [2015] UKSC 11
[3] [1985] A.C.871
[4] Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582
[5] [2004] UKHL 41
In Montgomery, the Supreme Court recognised the serious flaws in the UK approach to information disclosure. Importantly, the court recognised that there should be a distinction between information disclosure and medical skill. They also recognised that the choice of the patient was likely to be influenced by more than anticipated clinical outcome. Clinical considerations may be only one of the considerations relevant to a patient in making a healthcare decision. The patient might decide for personal reasons not to opt for the most clinically optimal option for treatment and the Supreme Court recognised this choice should be protected. The fact that a patient does not wish to opt for the most clinically optimal option for treatment should not be seen to demonstrate a lack of capacity. It is recognised that a patient can make a choice that is not seen to be rational by the doctor. The Supreme Court also understood that there was nothing in the doctor’s clinical training or knowledge that would enable him/her to evaluate many factors personal to the patient when making a healthcare decision, and that these personal factors must form part of the truly autonomous decision. The role of the doctor is then that of a facilitator enabling the patient to make a choice on what healthcare option is the best option for them.
Following the decision of the Supreme Court in Montgomery it is now recognised that the decision of a competent patient is worthy of respect both by the treating clinicians but also by the law. The case has heralded a new era in the doctor/patient relationship. Trusts and Health Boards in the UK require to provide doctors/nurses and healthcare workers with the support to innovate this change and ensure that where patients wish to exercise choice that right is respected.
Nice blog post
A pivotal moment in my career as a physician was the decision that the patient should be a partner in deciding the outcome of their health. Into all daunting and uncomfortable for both but invariably more satisfying when choices of treatment are being made on probability rather than certainty.
Am pleased that this is now acknowledged in law
My father was in hospital this month and was informed at all stages of everything that was happening, regardless of whether it was good or bad news. There’s been a sea change in keeping patients informed, and that’s good thing.
Excellent article! In regards to the Chester case, the issue of causation is very interesting and would love to hear more of your opinion of causation. I did my LLB dissertation on whether the delict of negligence is now the best framework for information disclosure cases, in light of Montgomery so happy to see it discussed.
Would love to hear your thoughts on reforming medical negligence towards a less strict causation and physical injury threshold (given similar developments with the action for wrongful birth, Rees v Darlington Memorial Hospital NHS Trust)? And whether further reform is needed, such as the alternative use of the actio iniuriam (as discussed in G. Laurie, ‘Personality, privacy and autonomy in medical law’.) in place of the delict of negligence to avoid the causation and damages tests?