The purpose of information disclosure before and after the Covid-19 pandemic: a medical relationship in flux

Journal: Contemporary Issues in Law

Pages: 1-47

Publisher: Lawtext Publishing

ISSN: 1357-0374

Abstract:

The Supreme Court’s judgment in the case of Montgomery v Lanarkshire Health Board gave a clear indication that ‘informed consent’ had at last crossed the Atlantic. For the purpose of consent, information was no longer at the discretion of individual medical practitioners, but instead was required to ensure an autonomous choice to treatment. This manifest in the requirement to disclose risks, benefits, and reasonable alternatives. This level of choice potentially recasts the patient as a consumer of medicine and the doctor as provider of tailored treatment and information services. Whilst this clear recognition of rights, to understand and choose treatment, mitigated medical paternalism, it has since become a nexus of conceptual and legal confusion, whilst operating in a supposedly therapeutic relationship. This article will argue that this legal pathology is far from unique. In other jurisdictions, (from whence the concept of informed consent was transplanted) the requirement to synergise the dual purposes of therapeutic and autonomous disclosure was manifested in three distinct ways: integration, incorporation and rejection. Reflecting on this typology, this paper suggests that the Montgomery judgment has adopted the incorporation methodology. This sees both the legal test for the standard of care in negligence, seeking to facilitate both the therapeutic needs, and autonomous wishes of the patient. This paper suggests that problems have occurred in the subsequent application of the law, due to the incompatibility of the purposes of the dual relationships, within one cause of action, one duty, and one standard of care. This article then goes on to suggests that the Covid-19 pandemic may have signalled a paradigm shift in the way that medicine is conceptualised within society: the view that the optimum form of the clinical relationship - to maximise choice and autonomy - has receded, and the therapeutic aim of improving health have remerged in policy and law. This is demonstrated socially and politically through increased trust in ‘technical’ medical expertise, for example, through the endorsement of an indemnity scheme for negligence during the pandemic. This trust in medical expertise has since manifested in law, through the limitation of the consumer relationship, in regard to the disclosure of alternative treatment options, in cases such as McCulloch v Forth Valley Health Board.

Source: Manual