Supreme Court reverses informed consent ruling: Sidaway is dead

“The justification for this change of approach will be obvious. A patient has her own right to make her own decision based upon sufficient information. A doctor must respect that right if there were material risks which a reasonably prudent patient would think were significant. Medical evidence would of course be relevant to that decision, but the decision was ultimately legal rather than one for the doctors. As the main judgment puts it at [75]

….patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession.

Times have moved on from the “doctor knows best” approach of Sidaway. There are so many other sources of information available to patients (the internet, patient support groups, drug labelling etc) and hence

It would therefore be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors. The idea that patients were medically uninformed and incapable of understanding medical matters was always a questionable generalisation….. To make it the default assumption on which the law is to be based is now manifestly untenable.

This default assumption does not accord with GMC guidance to doctors, nor indeed with other developments in the law:

80. Under the stimulus of the Human Rights Act 1998, the courts have become increasingly conscious of the extent to which the common law reflects fundamental values. As Lord Scarman pointed out in Sidaway’s case, these include the value of self-determination….. As well as underlying aspects of the common law, that value also underlies the right to respect for private life protected by article 8 of the European Convention on Human Rights.

The Court noted that the resulting duty to involve a patient in treatment decisions has been recognised in Strasbourg cases such as Glass v United Kingdom (2004) 39 EHRR 15 and Tysiac v Poland(2007) 45 EHRR 42, as well as in a number of decisions of UK courts.

So the move is away from a model of medical paternalism. Social and legal developments point towards an approach to the law

which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.”

UK Human Rights Blog

montgomery_3228283bMontgomery v. Lanarkshire Health Board [2015] UKSC 11, 11 March 2015  – read judgments here

James Badenoch QC of 1COR was for the mother in this case. He played no part in the writing of this post.

An important new decision from a 7-Justice Supreme Court on informed consent in medical cases. 

In the mid-1980s a majority of the House of Lords in Sidaway decided that it was on the whole a matter for doctors to decide how much to tell patients about the risks of treatment, and that therefore you could not sue your doctor in negligence for failing to inform you of a risk if other reasonable doctors would not have informed you of the risk. Thus the principle that the standard of medical care is to be determined by medical evidence (which all lawyers will know as the Bolam principle) was extended to the quality of information to…

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