Medical Law

Medical Law


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The issue of patient autonomy and the level to which medical practitioners should permit patients to decide on the kind of treatment received largely informs debates on patient autonomy.  The legal community holds autonomy in high repute, and the medical profession now regards autonomy as a contributory aspect of the judgements made and professional codes developed under medical law. A healthy doctor-patient relationship is desirable as it aids in the provision of good health care. Such a relationship has traditionally been reliant on the medical profession assuming an active role in making medical decisions that are in line with a medical body of which they are members of and one that is deemed to have the best interests of the patient at heart. Accordingly, the patient was largely a passive recipient of the medical services rendered to them. However, issues of medical negligence abounded. In the year prior to the ruling of the Bolam case, the medical profession was characterised by considerable cases of negligence claims that had left the profession in a state of disarray. The Bolam test sought to absolve the medical profession of any negligence in their actions.  However, Canterbury v Spence identified the need for patient consent in making a medical decision. The case acknowledged that patients needed to act as active participants in any medical decision in which they were involved and that they had a right to make informed choices. This also encompassed the opportunity to assess adeptly the risks involved and the options available to them.

While the issue of patient autonomy has informed the legal and medical discourse in the UK for years, the UK Supreme Court threw the medico-legal community in the country into a frenzy with its judgement on the landmark “Montgomery” case.  Prior to “Montgomery”, two cases formed the basis for the law of consent in the UK: “Bolam” and “Sidaway.” The Bolam test provides that a doctor was not likely to be considered negligent in the event that his actions complied with the acceptable practice by a recognised body consisting of skilled medical personnel in that specific art. In Sidaway, most members of the House of Lords alluded to the fact that the Bolam test had been applied in undertaking a diagnosis of a patient and offering treatment, but that the patient had not received appropriate advised regarding the risks that could emanate from the treatment.

The importance of patient-informed consent in English tort law also emerged in Sidaway following the failure of a surgeon to inform a patient of the potential risks of the operation beforehand.  In this case, the plaintiff intimated that the surgeon had failed to inform her that the operation carried a 1-2% risk of possible paralysis. She further maintained that had the surgeon informed her of the risks involved, she would have not gone ahead to have the operation.  However, her claim failed.  In issuing the ruling, Lord Diplock argued that a mentally competent patient possess the capacity to consent to or refuse medical treatment either on the ground of irrational or rational reasons, or for no apparent reason. This is the case even though the decision made could result in her or his death. Lord Diplock further ruled that the Bolam test should apply in this case and that the doctor owes his/her patient a duty of care, and no one else.  Lord Scarman was opposed to the application of the Bolam test to any medical case of an alleged breach of duty of care, be it in terms of diagnosis, advice, or treatment. He pointed out that the consenting process involved non-medical considerations that were nonetheless, relevant.

Whereas the doctor is concerned with relieving the patient’s pain and restoring their health, which is medical objectives, Lord Diplock also noted that a patient also has their own objectives, values, and circumstances that they may not reasonably reveal to a doctor, but which could result in a different decision other than one that is purely based on medical opinion. Accordingly, Lord Diplock contended that the patient has a right to make an informed choice regarding whether they need to undergo the suggested treatment, or not. The doctor thus owes the patient a duty to inform them of the potential material risks that could accompany such treatment. He further ruled that in this case, the doctor need not have disclosed a risk, a decision that hinges on exercising the “therapeutic exception” caveat. This usually happens in case the doctor, upon a reasonable review of the patient’s condition, realises that a disclosure would be injurious to the patient’s health.

In his judgement, Lord Scarman argued in favour of the ‘right of self-determination’ in which he contended that every patient reserves the right to make a decision of if they shall accept medical treatment, or not. This notwithstanding the patient reserves the right to be informed by the medical practitioners of the potential risks accompanying such a treatment.

The prudent patient test was an endorsement of Canterbury v Spence, a decision that underscores the significance of the informational needs of an individual patient and a patient’s right to self-determination. This decision rests with the patient, and not the doctor. Nonetheless, in Sidaway, the House of Lords preferred the ‘prudent doctor’ test in favour of this approach, thereby giving the doctor the freedom to decide what they need to disclose to the patient. This helped to endorse the Bolam test as the standard for use by the court in establishing if the doctor made a correct decision. As long as the disclosure decision would be supported by a responsible body of medical professionals, then no negligence would be deemed to have occurred.

In Sidaway, the court ruled that the doctor should be absolved of any wrongdoing in case his actions were in keeping with the practice that conforms to a responsible agency of fellow professionals. In dealing with the matter, Lord Bridge in rejecting the doctrine of informed consent endeavoured to acknowledge the logical force of the Canterbury principle, which is based on the premise that the patient has a right to make their own decision, and that such a right should always be protected against the medical paternalism which supposes that ‘doctor knows best’.  Lord Bridge further opined that under certain circumstances the court may decide that disclosing a specific risk to a patient constituted an obvious necessity that any reasonably cautious medical professional would deem it appropriate to make. While the principle of informed consent may not yet enjoy the formal application in English law, judges nonetheless apply the term, albeit loosely, even within the Supreme Court. For instance, Lord Steyn used the concept of informed consent in Chester v. Afshar to imply valid consent.

Post Sidaway, the professional standard appeared to enjoy increased reiteration such as in Blyth v. Bloomsbury. The court ruled in favour of the claimant because she had inquired about the contraceptive injection but the medical professional failed to give conclusive information.

In Gold v Haringey, the claimant had sued Haringey Health Authority for negligence for failing to inform her of the risk associated with sterilisation treatment and other options available to her, such as her husband undergoing a vasectomy. Nonetheless, the Bolam test acknowledges an objective level of negligence on the basis of competence or skill, as opposed to context. The court ruled in favour of the defendant arguing that most doctors would have advised the patient the same way as she had been advised by the defendant.

In Pearce v United Bristol, Lord Woolf argued that if a treatment entails a considerable risk with the potential to influence the judgement of a reasonable patient, the doctor involved has a duty to inform such a patient of the likely significant risk. This enables the patient to make a decision on the course of action to take.

In Montgomery, the claimant had sued Dr. McLellan, her obstetrician for lack of disclosure about the risks involved in her giving birth. Nadine was diabetic and had a small stature, and there is a risk for the child experiencing shoulder dystocia during birth. However, Montgomery was not informed of this. Consequently, her child sustained severe disabilities. She thus sued Dr. McLellan for having not warned her of such a risk. The Supreme Court ruled in favour of the claimant, thereby establishing a considerable turnaround in the test that ought to be used in establishing if a patient had provided consent to treatment. In this case, the decision arrived at by the House of Lords in Sidaway had no influence.

In sum, Montgomery, in keeping with some of the rulings made post-Sidaway, failed to establish consideration for the Bolam test in the case. This is a clear indication that it is not enough to absolve the doctor from possible negligence on grounds that they had the ‘best medical interests of the patient’ at heart because the patient has a right to informed consent regarding the risks involved in a certain treatment and the alternatives available to them. Armed with such information, they can then make an informed choice. The case underscores the value of a patient-doctor partnership in which doctors ought to listen to and respond to preferences and concerns raised by patients. It also calls upon doctors to acknowledge that patients too have the capacity to make informed choices.



Edozien, Leroy, Self-determination in Health Care: A Property Approach to the Protection of

Patients’ Rights (Routledge 2016) 77

Article Journals

Coggon, John,’ Anorexia nervosa, best interests, and the patient’s human right to ‘a wholesale overwhelming of her autonomy’ (2012) 22 Medical Law Review 119.

Foster Charles,’ Autonomy in the medico-legal courtroom: a principle fit for purpose’  (2013)22 Medical Law Review 48

Case Laws

Blyth v Bloomsbury Health Authority. (1993) 4 Med LR 151

Bolam v Friern Hospital Management Committee [1957] WLR 582

Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771

Canterbury v. Spence, 464 F 2d 772 (1972)

Chester v Afshar [2004] UKHL 41

Gold v Haringey Health Authority [1987] 3 W.L.R. 649

Montgomery v Lanarkshire Health Board [2010] CSOH 104 at [171].

Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] All ER (D) 113

Pearce v United Bristol Healthcare NHS Trust [1999] E.C.C. 167.

Per Lord Kerr and Lord Reed in Montgomery (Appellant) v Lanarkshire Health Board (Respondent)(Scotland) [2015] UKSC 11

Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871

Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871

Edozien, Leroy, Self-determination in Health Care: A Property Approach to the Protection of Patients’ Rights (Routledge 2016) 77

Chester v Afshar [2004] UKHL 41

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