Article Text
Abstract
The UK Supreme Court’s recent judgement in McCulloch v Forth Valley Health Board clarifies the standard for the identification of ‘reasonable’ alternative medical treatments. The required standard is that of a reasonable doctor: treatments that would be accepted as proper by a responsible body of medical opinion. Accordingly, the assessment of consent involves a two-stage test: first, a ‘reasonable doctor’ test for identifying alternative treatments; followed by a ‘reasonable person in the patient’s position’ test for identifying the material risks of these reasonable alternative treatments. The separation of consent into two stages is consistent with not only a certain conception of freedom but also a nuanced construct of respect for autonomy that has a normative base. Furthermore, reliance on a reasonable doctor in the first stage is in keeping with a sociological account of medical professionalism, which posits that only doctors, and none others, can determine what is a proper treatment. Yet, reliance on a reasonable doctor permits a plurality of standards for reasonableness, because differences in opinion among doctors are pervasive. The reasons for some differences might be acceptable as unavoidable imperfections in medical decision-making to a reasonable person. But reasons for other differences might be objectionable; and the resultant inequalities in medical treatments would be considered unfair. One solution is to make the plurality of reasonable alternatives available to the patient, but this would introduce practical uncertainty and it is rejected by the Court. The Court’s approach may be pragmatic; however, it seems to allow avoidable injustice in healthcare.
- Decision Making
- Ethics- Medical
- Informed Consent
- Philosophy
- Malpractice
Data availability statement
There are no data in this work.
Statistics from Altmetric.com
Read the full text or download the PDF:
Other content recommended for you
- ‘Bolam’ to ‘Montgomery’ is result of evolutionary change of medical practice towards ‘patient-centred care’
- Does the General Medical Council’s 2020 guidance on consent advance on its 2008 guidance?
- Not so new directions in the law of consent? Examining Montgomery v Lanarkshire Health Board
- 'Advice, not orders’? The evolving legal status of clinical guidelines
- Update on the UK law on consent
- Ethics briefings
- Montgomery on informed consent: an inexpert decision?
- Consent in the time of COVID-19
- The rebirth of medical paternalism: An NHS Trust v Y
- How should surgeons obtain consent during the covid-19 pandemic?