"One for all and all for one: how has the law of medical negligence attempted to regulate medical decision-making in informed consent?"

Conference: Postgraduate Bioethics Conference 2017

Dates: 23 June 2017-24 June 2024

Abstract:

Informed consent requires the doctor to provide information to the patient so they may give a valid consent to medical treatment. What amounts to a valid consent and therefore what information is material, is dependent upon the emphasis the medical profession ‘collectively’ places on two competing bioethical principles: the best interest of the patient (medical beneficence) and the patient’s right to self-determination. Ethical standards guide how doctors should decide what information the patient needs to know. If a doctor falls below ‘best practice’ standard(s) they could face professional disciplinary proceedings. Law also has the capacity to regulate medical decision-making, based on what the judiciary consider to be ‘reasonable’. Doctors, who carry out a disclosure process that falls below this (theoretically lower) standard, could be liable in negligence, trespass, or even face criminal prosecution. Unlike ethical standards, which are decided by doctors collectively, legal standards are created by individuals bringing cases to court. From examination of ‘one’ set of facts, the judiciary form rules to determine how ‘all’ future case should be decided, and consequently, regulate how ‘all’ doctors should provide information to allow a legally informed consent. The presentation will attempt to map out how individual cases have developed legal standards which influence medical decision-making on the materiality of information. It will initially reflect upon the deference law paid to doctors, then go on to explore how increasing scrutiny by the judiciary coincided with a resurgence of evidence-based medicine - to indicate what the ‘average patient’ needs to know. Finally, it will argue how the evolution of judicial thinking has resulted in a high legal standard that dictates, rather than regulates, medical practice. Doctors must now make decisions about the materiality of risk based on the priorities of the individual patient. Thus, ‘all’ medical decisions are now decided by ‘one’ patient.

Source: Manual