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Durham Research Online
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The ill-informed : consent to medical treatment and the therapeutic exception.

Cave, Emma (2017) 'The ill-informed : consent to medical treatment and the therapeutic exception.', Common law world review., 46 (2). pp. 140-168.

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.

Item Type:Article
Full text:(AM) Accepted Manuscript
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Available under License - Creative Commons Attribution Non-commercial.
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Status:Peer-reviewed
Publisher Web site:https://doi.org/10.1177/1473779517709452
Publisher statement:This article is distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 License (http://www.creativecommons.org/licenses/by-nc/4.0/) which permits non-commercial use, reproduction and distribution of the work without further permission provided the original work is attributed as specified on the SAGE and Open Access pages (https://us.sagepub.com/en-us/nam/open-access-at-sage).
Date accepted:21 April 2017
Date deposited:21 April 2017
Date of first online publication:29 June 2017
Date first made open access:06 July 2017

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