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Health Care Analysis
Published in: Health Care Analysis 2/2019

Open Access 01-06-2019 | Original Article

Between the Reasonable and the Particular: Deflating Autonomy in the Legal Regulation of Informed Consent to Medical Treatment

Authors: Michael Dunn, K. W. M. Fulford, Jonathan Herring, Ashok Handa

Published in: Health Care Analysis | Issue 2/2019

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Abstract

The law of informed consent to medical treatment has recently been extensively overhauled in England. The 2015 Montgomery judgment has done away with the long-held position that the information to be disclosed by doctors when obtaining valid consent from patients should be determined on the basis of what a reasonable body of medical opinion agree ought to be disclosed in the circumstances. The UK Supreme Court concluded that the information that is material to a patient’s decision should instead be judged by reference to a new two-limbed test founded on the notions of the ‘reasonable person’ and the ‘particular patient’. The rationale outlined in Montgomery for this new test of materiality, and academic comment on the ruling’s significance, has focused on the central ethical importance that the law now (rightfully) accords to respect for patient autonomy in the process of obtaining consent from patients. In this paper, we dispute the claim that the new test of materiality articulated in Montgomery equates with respect for autonomy being given primacy in re-shaping the development of the law in this area. We also defend this position, arguing that our revised interpretation of Montgomery’s significance does not equate with a failure by the courts to give due legal consideration to what is owed to patients as autonomous decision-makers in the consent process. Instead, Montgomery correctly implies that doctors are ethically (and legally) obliged to attend to a number of relevant ethical considerations in framing decisions about consent to treatment, which include subtle interpretations of the values of autonomy and well-being. Doctors should give appropriate consideration to how these values are fleshed out and balanced in context in order to specify precisely what information ought to be disclosed to a patient as a requirement of obtaining consent, and as a core component of shared decision-making within medical encounters more generally.
Footnotes
1
Patient reported outcome measures (PROMS) are one such example that have gained a foothold in health services research settings. PROMS seek to ascertain the significance of certain health outcomes from the standpoint of subjective patient experience, but do not (at least in principle) give patients control over determining the outcome measures themselves, on the basis of their own preferences, values, or concerns.
 
2
Whilst the justices can be rightfully praised for how they have incorporated and endorsed both limbs of the materiality test, there are other sections of the judgement that raise some concerns about how specific values and requirements are accorded pre-emptive legal weight. One such concern is the rightful place of the ‘therapeutic privilege’ that is articulated in the judgement as an exception to the two-limbed test (paras. 85; 91), rather than as a component part of it. In light of our analysis, a better understanding of the rightful place of the therapeutic privilege would be in terms of a correct, context-specific interpretation of what a ‘reasonable person in the patient’s position’ would require not to be told because of the predicted impact of this information on patient well-being.
 
3
GMC. (2008). Consent: Patients and doctors making decisions together. London: General Medical Council, paras. 7–25. Whilst there is much focus on these guidelines on the doctors’ responsibilities around the need to be responsive to patients’ concerns, there is little attempt to clarify how the doctors’ own reasons for disclosing what information it would be reasonable for patients to be told should be handled in a discussion about treatment options, other than by reference to a need to disclose information that is drawn from a pre-defined list of details that the doctor is obliged to disclose (para. 9).
 
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Metadata
Title
Between the Reasonable and the Particular: Deflating Autonomy in the Legal Regulation of Informed Consent to Medical Treatment
Authors
Michael Dunn
K. W. M. Fulford
Jonathan Herring
Ashok Handa
Publication date
01-06-2019
Publisher
Springer US
Published in
Health Care Analysis / Issue 2/2019
Print ISSN: 1065-3058
Electronic ISSN: 1573-3394
DOI
https://doi.org/10.1007/s10728-018-0358-x

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