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

Cave, Emma

doi:10.1177/1473779517709452

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

Cave, Emma

Authors

Professor Emma Cave emma.cave@durham.ac.uk
Professor

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

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