"The evolution of the doctor-patient relationship in the law of consent: can Montgomery's bigamous relationship work?"

Conference: HEAL Research Group Seminar Series

Dates: 24 April 2019

Abstract:

The aim of this paper is to fully extrapolate the previously unrecognised models of the Doctor-Patient Relationship (“DPR”) that are contained and constructed within the Law (as opposed to morally or ethically). Whilst the author begins by arguing that the medical relationship acts as the theoretical basis for a duty of care in law; the law fails to fully recognise both the basis on which it constructs these legal duties and how said construction affects the standard of care imposed on medical practitioners. This leads to conceptual confusion. There are number of areas of law in which this conceptual befuddlement occurs, however, this paper will be limited to the law of medical consent to medical treatment. For (a bare) consent to be achieved, (legally and ethically) the patient must understand the nature of the treatment offered by the doctor and voluntarily agree to that treatment. Failure to attain consent in Tort Law will result in liability for Battery if the patient is then touched. However, this author will argue that the doctor is not positively obligated to act to facilitate the patients consent as an autonomous choice. The duty to provide information manifests from the moral obligation for the doctor to act in the patients’ best interest; which emanates from the DPR. Rather, failure to act in the patient’s best interest is the basis for liability in Negligence. Whilst the law recognises two distinct actions, 1) Battery & 2) Negligence; only negligence deals with the moral doctor-patient relationship. If the law requires the patient to make an autonomous choice, then separate obligations must be placed on the practitioner, which must come from a distinct and novel relationship.

The model of the DPR has a profound effect on the legal obligations and standards which the doctor must meet. The party who controls the DPR (e.g. the medical profession, the judge, or the patient) has the power to shape the standard of information disclosure. I will argue that over the last fifty years (from Bolam, through Sidaway & Pearce, Chester & finally Montgomery) the law has expressed four distinct phases, or models, of the DPR as the basis for standard of care. Shifting from a professional orientated to a completely patient orientated approach: I) the Best Interest Model II) the Best Interest through Autonomy Model III) the Break-up Model, IV) the Bigamous Relationship Model. This development in the DPR has fundamentally altered the standards of disclosure in the law of consent.

Finally, I will argue that creation of a binary doctor-patient relationship in Montgomery (Model IV) is theoretically unsound, normatively impossible and practically unachievable. The judgement now requires the doctor to provide a dual standard of information which: a reasonable patient in the patients’ position would wish to know (Model 2), and a subjective amount of information tailored to the particular patient (Model 3). Model 2 requires the doctor to act objectively, in the patients’ best interest as part of their doctor-patient relationship. Model 3, requires the doctor to provide information to ensure understanding for an autonomous choice – as a distinct ‘right.’ This confused model of the DPR conflates the cause of action in Battery with the standard required in Negligence. Unless the law recognises these distinct legal relationships this author predicts more court hearings, a possible appeal, followed by a messy breakup.

Source: Manual