The Ill-Informed: Consent to Medical Treatment and the Therapeutic Exception

Cave, Emma

Abstract

Affirming the doctrine of informed consent, the UK Supreme Court in Montgomery v Lanarkshire HB belatedly followed the Australian decision of Rogers v Whitaker, decoupling the duty to inform patients about the material risks of medical treatment from Bolam. The underlying commitment to patient autonomy coincides with a wider body of medical law that protects the right of capacitous adult patients to make treatment decisions, even if others consider those decisions bizarre and even if they will cause the patient serious harm. It is seemingly anomalous, therefore, that the Supreme Court in Montgomery referred to a ‘therapeutic exception’, as this suggests an underlying paternalistic approach. Contrary to this view, international examples suggest that a therapeutic exception does not necessarily conflict with commitment to patient autonomy. In some countries, the exception mitigates the effects of a broadly objective test of materiality by enabling clinicians in exceptional circumstances to protect the autonomy interests of the particular patient. In others, it protects those incapable of an autonomous decision from harm. In England and Wales, however, alternative mechanisms can be interpreted to protect such patients from harm. On this basis it is argued that the therapeutic exception is obfuscatory, unnecessary and unjustified.

Citation

Cave, E. (2017). The Ill-Informed: Consent to Medical Treatment and the Therapeutic Exception. Common Law World Review, 46(2), 140-168. https://doi.org/10.1177/1473779517709452

• Journal Article Type: Article
• Acceptance Date: Apr 21, 2017
• Online Publication Date: Jun 29, 2017
• Publication Date: Jun 29, 2017
• Deposit Date: Apr 21, 2017
• Publicly Available Date: Apr 21, 2017
• Journal: Common Law World Review
• Print ISSN: 1473-7795
• Electronic ISSN: 1740-5556
• Publisher: SAGE Publications
• Peer Reviewed: Peer Reviewed
• Volume: 46
• Issue: 2
• Pages: 140-168
• DOI: https://doi.org/10.1177/1473779517709452
• Keywords: consent, disclosure, Montgomery, therapeutic exception
• Public URL: https://durham-repository.worktribe.com/output/1389033