Historically, far as to overstate the protection
Historically, medical ethics has always beenhappy to endorse medical paternalism and the notion that ‘the doctor knowsbest’. However, the law has moved awayfrom this to acknowledge that patients are not just subjects of medicaltreatment at the mercy of doctors, but also persons possessing specific rights.Specifically, the law has come to recognise that patients have a right to beinformed, but some argue this legal development has gone too far as tooverstate the protection of patient autonomy. In this essay, I will attempt toshow that the development of medical law in the area of a patient’s right toinformation does not provide an over-protection of patient autonomy. AutonomyAutonomy has been described as the”cornerstone of modern medical jurisprudence in the United Kingdom”.
1Lord Bingham describes the function of autonomy as “to enable adult patients ofsound minds to make for themselves decisions immediately affecting their ownlives and bodies”.2Faden and Beauchamp define autonomy as “privacy, voluntariness, self-mastery,choosing freely, choosing one’s own moral position and accepting responsibilityfor one’s choices”.3It can be seen from this definition that the essence of autonomy entails morethan just ‘unfettered, non-reflective choice(s) and the satisfaction ofpreferences’.4 Patient’sright to be informedWhile the case of Bolam dealt mostly with negligence andduty of care, it is also the starting position of law with regards to apatient’s rights to be informed. In Bolam,Mc Nair J suggests that it was proper for a doctor to withhold informationregarding risks which he considers as ‘minimal’.5Subsequently in the case of Sidaway, themajority in the House of Lords failed to recognise a patient’s right to be informedof pre-operative risks as long as non-disclosure conforms with responsiblemedical practice, effectively applying the Bolamtest.
6 However, Lord Scarman’s dissenting judgmentin Sidaway paved the road for abreakaway from medical paternalism, acknowledging patient autonomy as a ‘basichuman right’,7and welcomed the recognition of a doctor’s duty to warn a patient of ‘materialrisks’ by the law.8In the case of Pearce, the courtsfound a 0.1-0.2% risk of stillbirth too insignificant to impose a duty on thedoctor to disclose such a risk.9Lord Woolf’s judgment in Pearce showsthe movement away from medical paternalism in the courts post-Sidaway, acknowledging that doctorscould owe a responsibility to inform patients of ‘a significant risk whichwould affect the judgment of a reasonable patient’,10similar to the ‘material risks’ approach taken by Lord Scarman in Sidaway.
Subsequently, in Chester v Afshar, Lord Steyn even goeson to say that ‘in modern law, medical paternalism no longerrules and a patient has prima facie a right to be informed by a surgeon of asmall, but well established, risk of serious injury as a result of surgery.’11 The case of Montgomery consolidates and builds on all the progress achieved by pastcase law.12It corrects the position reached in Sidaway,rejecting once and for all the application of the Bolam test to determine a doctor’s duty to disclose information. Montgomery says that ‘the doctoris under a duty to take reasonable care to ensure that the patient is aware ofany material risks involved in any recommended treatment, and of any reasonablealternative or variant treatment.’13Montgomery also reaffirms LordScarman’s ‘material risk’ approach in Sidaway,creating a formal test for materiality of risk which includes an objective limb(whether the reasonable patient would attach significance to the risk) and asubjective limb (whether the doctor is or should be reasonably aware that theparticular patient would attach significance to such risk).14 Theassessment of the materiality of risks must be fact sensitive and not bereduced to percentages, and doctors must provide patients with comprehensibleinformation.15Following Montgomery, doctors arealso entitled to a limited ‘therapeutic exception’, where they are entitled towithhold information from patients under specific circumstances.16 Montgomery further qualifies this byproviding guidance saying that doctors are not to abuse this therapeuticprivilege so as to ‘prevent the patient from making an informed choice whereshe is liable to make a choice which the doctor considers contrary to her bestinterests’.
17 Too much protection for patient autonomy? Some say that in theeffort to correct the balance between patient autonomy and medical paternalism,autonomy may have become overstated.18 Beauchamp and Childress’s four coreprinciples have formed the cornerstone of biomedical ethics: beneficence,non-maleficence, autonomy and justice.19However, there have been suggestions that autonomy has acquired paramountcyover these other principles, resulting in an over-protection of patientautonomy.
20This essay contends that there is no such over-protection. We must first recognise Montgomery for what it is: an acknowledgment of both public andjudicial sentiments to move away from strong medical paternalism. Montgomery represents the latest step in the gradual evolution of the area ofpatient’s rights to information, ceasing to focus on doctors’ duties andinstead prioritising patients’ rights.
21 JoseMiola describes this evolution as a ‘de-Bolamisation’ in medical law.22 While Bolam placed the ‘reasonable doctor’ atthe centre of decision making, the current precedence given to ‘patient choice’over the doctor’s wishes reflects the change so desired by the rich body of lawpre-Montgomery.23Furthermore, Montgomery follows andimplements parts of the GMC guidance which were already in place, addressingthe previous disparity that existed between the fairly minimal requirements oftort law and the more stringent guidelines released by the GMC.
24 Forexample, the GMC guidelines stress the importance of good doctor-patientcommunication so as to ensure patients understand what the doctor is saying, aswell as the subjective elements of each individual patient when deciding howmuch information to disclose.25 Thus, Montgomery should not be seen as an over-protectionof patient’s rights and an imposition of more onerous duties on medical practitioners,when it is simply a case of the law finally catching up to established goodmedical practice. Montgomery was ‘notan unexpected revolutionary judgment that has changed the face of medical law’, 26 butrather a recognition of the evolution of societal values and public opiniontowards a right to obtain information, of the autonomous patient, and that thedoctor does not always know best. This is summarised in Lord Steyn’s dictum in Chester v Afshar, that at present “theright to autonomy and dignity can and ought to be vindicated”.27 Theprotection of patient autonomy has been placed on its present pedestal becauseit is what society has asked for and no more. Some critics contend that the developments in Montgomery give too much protection topatient autonomy, and as a result it encouragesa practice of ‘defensive medicine’.28 Theyargue that the subjective element of the ‘materiality of risks’ test expands thescope of when a risk will be material to the patient to virtually limitlessboundaries, and doctors are pressured to disclose every single risk conceivablejust to avoid potential liability.
The fear is that the law might cause medicalpractitioners to shift their focus from helping the patient to defendingthemselves from any potential liability.29However, this fear is unfounded because doctors should already be followingestablished good medical practice in GMC guidance, which stresses that in determininghow much information to share with patients, special regard must be given tothe individual circumstances of that specific patient.30 Lady Hale emphasises that Montgomery should not be seen as authority that doctors are nowunder an obligation to “volunteer the pros and cons of each option” to thepatient if it can be proved that the risk could cause detriment to the patient.31 Infact, the case of Mrs A v East KentHospitals University NHS Foundation Trust shows that the courts post-Montgomery will not necessarily rulethat an undisclosed risk which is subsequently detrimental to a patient ismaterial, if there is credible and sufficient evidence that shows otherwise.
32 Thereare also criticisms that the therapeutic exceptions encourage ‘defensivemedicine’ because doctors refer to it as a defence in the event that theirnon-disclosure of information turns out to be detrimental to the patient.Heywood and Miola disagree with this view, instead seeing therapeuticexceptions as a ‘component part of the test for ascertaining breach of duty’.33 Theysay that the correct position in law should be a presumption of disclosure bythe doctor, with the burden on the doctor to justify his non-disclosure byreference to the therapeutic exceptions.34 Itfollows that the therapeutic exceptions can effectively act as a guidance fordoctors when they carry out the subjective test for disclosure (evaluatingwhether the particular patient will attach particular significance to a risk),helping them to make better and more focused observations when evaluating thepatient, so they are able to properly justify non-disclosure of information inany event.
35 On a more fundamental level, there has beena tendency of the law to conflate autonomy and liberty, marrying the ‘how’ and’who’ questions in medical decision making, and confusing the protection of onefor the other.36Coggon makes an important distinction between autonomy and liberty, whereautonomy is the ‘positive’ freedom to reason according to an individual’s ownvalue system, while liberty is the means of allowing individuals the freedom toact in accordance with their autonomy.37Thus, the choice that a patient makes regarding his body is his liberty, butthe freedom and ability of the patient to formulate his own reason for makingsuch a choice is his autonomy. There is no doubt that the development of aright to be informed from Sidaway to Montgomery was aimed at endorsingpatient autonomy to oust medical paternalism. In Chester v Afshar, Lord Hope said that “part of the imbalancebetween doctor and patient is due to the patient’s lack of information, and… itis the function of the law to redress the imbalance by providing patients withthe ‘right’ to be given that information, or perhaps more accurately imposing aduty on doctors to provide it”.38However, Mclean recognises a core problem in the courts emphasising the passingof information to the patient, while ignoring whether the patient comprehendssuch information.39This can be seen in the case of Al Hamwi,where the courts held that doctors had discharged their duty to discloseinformation even though they did not take steps to ensure the patient’sunderstanding.
40Al Hamwi shows that the lawessentially ‘abandons patients to their own decisions’,41and while this is a protection of their liberty, it does not protect patient autonomyin any meaningful sense because a patient cannot possibly be said to have the’freedom’ to reason about something that he does not understand. Granted thecase of Al Hamwi precedes Montgomery, but Montgomery did not directly address this issue of a duty to ensurepatient understanding, only requiring doctors to provide ‘comprehensibleinformation’ and not to bombard patients with ‘medical jargon’.42Perhaps philosophically Montgomery hasoverruled Al Hamwi, but until thereis case law that directly addresses a doctor’s duty to ensure a patient’s comprehension,the law cannot be said to properly protect patient autonomy. While this couldbe a nit-picky criticism of Montgomery,it shows that sometimes the law’s conflation of autonomy and liberty does noteven afford a meaningful protection of autonomy, let alone an over-protectionof patient autonomy. ConclusionMedical law has developed to respect everypatient’s autonomy, moving away from medical paternalism by granting patients aright to be informed. Thus, in accordance with the value agnosticism promotedin medical law, patients are given the freedom to formulate their own decisionsaccording to the information provided, based on their own value systems. Thedevelopment of law up to Montgomeryhas simply empowered patients to be able to make their own decisions regardingtheir own health, while allowing doctors to step in under certain limitedcircumstances. It strikes an equilibrium of placing patient autonomy at thecentre of medical decision-making, and acknowledging that the law too ‘does notknow best’ to fully usurp medical ethics.
1J.K. Mason and G. Laurie, Mason and McCall Smith’s Law andMedical Ethics, 9th edn (2013) para 9.02.2 Chester vAfshar, 2005 UKHL 41, para 5. 3 R.
Faden and T. Beauchamp (in collaborationwith N.M.
P. King), A History and Theory of InformedConsent (Cambridge 1986) p. 7.4 ibid, p 400. 5 Bolam v FriernHospital Management Committee 1957 1 W.L.
R. 582.6 Sidaway v Board of Governors of theBethlem Royal Hospital and the Maudsley Hospital 1985 AC 871 (HL)?7 ibid, p. 882.8 ibid, p. 889.
9 Pearce v United Bristol Healthcare NHS Trust, Court of Appeal (Civil Division),199810 ibid, para 21.11 Faden n 3, para 16.12 Montgomery v Lanarkshire Health Board 2015UKSC 1113 Ibid.
14 Ibid, para 88.15 Ibid.16 N 12, para 91.17 Ibid.18 Margaret Brazier, DoNo Harm- Do Patients Have Responsibilities too?, (Cambridge Law Journal2006)19 T.
L. Beauchamp and J. F.Childress, Principles of Biomedical Ethics, 5th ed.
(Oxford 2001)20 Brazier (n 18). 21 Rob Heywood and José Miola, ‘The Changing Face of Pre-Operative Medical Disclosure: Placing thePatient at the Heart of the Matter,’ LawQuarterly Review 2017.?22 Jose Miola, ‘Bolam: Medical Law’s Accordion’, J. Herring and J.
Wall (eds), Landmark Casesin Medical law (Oxford: Hart Publishing, 2015).23 Montgomery, “Lawand the Demoralisation of Medicine”, (2007) 26 L.S. 185.24 Emily Jackson, MedicalLaw: Text, Cases and Materials, 4th ed. (OUP 2016)25 GMC, Consent:Patients and Doctors Making Decisions Together (2008)26 Heywood (n 21) p.
300.27 N 2, para 24.28 Sokol D.
K., Updateon the UK Law on Consent, British Medical Journal 2015; 350:h148129 ibid.30 N 25, no.7.
31 n 12, para 111.32 MrsA v East Kent Hospitals University NHS Foundation Trust, 2015EWHC 1038 (QB)33 Miola (n 22) p. 312.34 Ibid.35 ibid.36 John Coggon, Jose Miola, Autonomy, Liberty, and Medical Decision Making, Cambridge LawJournal 2011.37 ibid38 n 2, p. 604, quoting Michael Jones (M.
Jones, “Informed Consent and Other Fairy Stories” (1999)7 Medical Law Review 103 at 129)39 A. Maclean, “Autonomy, Consentand Persuasion” (2006) 13 European Journal of Health Law 321.40 Al Hamwi vJohsnton and Another 2005 EWHC 206.41 Mclean (n 39).42 N 12.