Colm McGrath on "The Instability of Patients' Rights"

The law relating to what risks a medical practitioner must explain to their patient to avoid an action in negligence has recently undergone a significant change following the UK Supreme Court’s decision in Montgomery v Lanarkshire Health Board. The starting point for analysis now focuses on the patient, rather than accepted medical practice relating to disclosure. However, in practice, this new basis for the law has not yet proven to be much of an advance on the previous position. This paper examines two ways in which the basis of the Montgomery decision and its purported scope have proven to be unstable, thus contributing to the stasis. First, Montgomery and later cases will be placed in the broader context of the law relating to patient consent and capacity. This reveals that the capacitous patient is at a disadvantage as compared to the incapacitous patient. Secondly, the paper examines the border between the new Montgomery test and the old Bolam test, defending a broader reading of the former than has so far been applied. This reading is underpinned by a model of the doctor-patient relationship as a continuing, dialogue-based partnership, visible in Montgomery itself.