Previous to the landmark resolution of Montgomery v Lanarkshire Well being Board [2015], medical paternalism was commonplace inside the NHS.

The mantra of ‘physician is aware of greatest’ was adopted, with affected person alternative trailing behind. With years of coaching and expertise it was felt that medical doctors might make your best option for the affected person.

Following the Montgomery resolution in 2015, affected person autonomy got here to the helm and it was discovered {that a} affected person was entitled to resolve which, if any, of the out there therapies to bear.

Moreover, knowledgeable consent for remedy needed to be obtained to keep up bodily integrity with medical doctors below an obligation to make sure that sufferers have been conscious of any materials dangers in really useful remedy or of another various therapies.

Autonomy and selection turned a central a part of affected person remedy.

The choice meant energy was now shared between affected person and physician. The concept of sufferers as a recipient of a service turned a preferred idea. And as a shopper, the affected person had the proper to make a private alternative whether or not this was totally was what was really useful by the physician or not.

For a lot of, the Supreme Courtroom resolution symbolised a brand new period concerning the physician/affected person relationship. Paternalism was on the again foot with the inception of affected person company. Hospitals turned a platform during which sufferers voices can be heard, making a dialogue between the healthcare skilled and affected person.

In 2023, within the Scottish case of McCulloch v Forth Valley Well being Board the difficulty was reconsidered, particularly concerning the extent of required disclosure on various remedy choices.

The Supreme Courtroom was requested to contemplate the idea of ‘affordable’ remedy choices. The appellants argued that what was thought-about an inexpensive various remedy was to be decided by the courts, bearing in mind particular circumstances of the case and what a person within the affected person’s place would possibly need to consent or think about with reference to remedy choices.

Nevertheless, the Supreme Courtroom discovered that the right take a look at to use with reference to ‘affordable remedy choices’ was the Bolam take a look at. Subsequently, a physician is entitled to solely supply various therapies that they assume are clinically affordable and are protected on this resolution so long as an inexpensive physique of medical opinion would agree. In consequence, the ‘menu’ of remedy choices out there to sufferers seems to have narrowed, as disclosed choices might be decided by the opinion of medical doctors.

Arguably this resolution seems to make a semi U-turn on the choice in Montgomery. Now a affected person seen by one physician is probably not supplied a remedy, but when that they had been seen by one other physician they might have been supplied this. It might be argued due to this fact that the scope of affected person alternative has been restricted.

The healthcare business is subsequently having to reconcile with a change in expectations of a physician’s advisory position and the redrawing of strains within the sand.

Additional info

When you’ve got any questions, please contact Lucy Reast or James Bell in our Medical Negligence & Private Harm staff. 

Concerning the authors

Lucy Reast is a trainee solicitor at Kingsley Napley and is presently sitting in Medical Negligence and Private Harm as her first seat.

James Bell is the top of our Medical Negligence and Private Harm apply and joined the agency in 2023 from Hodge, Jones & Allen. He has undertaken medical negligence and private harm instances for over 30 years.