Rationalising the Autonomy in Montgomery: clarifying the legal standard of care in information disclosure.

Conference: Society of Legal Scholars

Dates: 3-5 April 2019

Abstract:

Autonomy has existed as one of the key principles of medical and bioethical thinking for the last fifty years. In comparison, Autonomy as a legal concept has only relatively recently entered the judicial lexicon. It is used most in the context of judgements relating to patient decision-making; often as the basis to justify the creation of novel patient rights. However, this legal construct has not had the equivocal depth and breadth of theoretical scrutiny as the literature from which it borrows. A literature that still remains divided upon what makes an autonomous choice. As a result, judges (often unversed in this literature) use the concept uncritically with a view to justify a range of contradictory legal positions. Whilst ethics (broadly) can suffer this division of opinion, Law relies on certainty and clear logic to establish standards of care, to judge medical liability and award damages. For this reason, Autonomy in law must be rationalised.

This talk will focus on one area of rationalisation: the standard of care for disclosure of information during the informed consent process. Expanding on Maclean’s1 definition(s) , I will argue that over time three distinct types of Autonomy have been recognised judicially; as the basis of legal standards of care: i) Libertarian Autonomy ii) Liberal ‘irrational’ Autonomy; and iii) the authenticity model of Autonomy. Each model requires different ‘components’ to allow a patient to make an autonomous choice. Thus, each model places different legal duties on the doctor to facilitate these components for the purpose of patient decision-making. Different duties result in distinct standards of care in law. The author will then argue that the uncritical movement to an authenticity model of Autonomy in Montgomery v Lanarkshire Health Board [2015] UKSC 11 has fundamentally altered the standard of care in law. The standard no longer exists as a requirement to provide information but as a right to a certain type of doctor-patient relationship with the aim of facilitating understanding as a novel standard of care. A failure to appreciate this change has resulted in judicial inconsistency ever since.

Source: Manual