Abstract
In Montgomery v Lanarkshire Health Board, Lords Kerr and Reed referred to the increasing tendency to treat patients ‘as consumers exercising choices’. The question of whether it is helpful to regard patients as consumers is not a new one, but it arises most frequently in discussions about the commercialisation of healthcare. Comparing patients with consumers in relation to informed consent is an interesting development, especially in the light of the growing body of contract and consumer law scholarship which questions the extent to which information disclosures to consumers produce informed choices. If there is evidence that the duties of disclosure which are imposed on retailers, in order to redress the imbalance of knowledge and power in the consumer–retailer relationship, do not always fulfil their intended purpose, might this have any resonance for the duties of disclosure which are imposed upon healthcare professionals?
Highlights
In Montgomery v Lanarkshire Health Board (Montgomery),[1] Lords Kerr and Reed referred to the increasing tendency to treat patients ‘as consumers exercising choices’
If there is evidence that the duties of disclosure which are imposed on retailers, in order to redress the imbalance of knowledge and power in the consumer–retailer relationship, do not always fulfil their intended purpose, might this have any resonance for the duties of disclosure which are imposed upon healthcare professionals? KEYWORDS: consumers, disclosure, duty of care, informed consent, Montgomery, negligence
In order to find out what matters to the individual patient, doctors must engage in the sort of dialogue which Lords Kerr and Reed noted has ‘long’ been a requirement of General Medical Council (GMC) guidance.[4]
Summary
In Montgomery v Lanarkshire Health Board (Montgomery),[1] Lords Kerr and Reed referred to the increasing tendency to treat patients ‘as consumers exercising choices’. In order to find out what matters to the individual patient, doctors must engage in the sort of dialogue which Lords Kerr and Reed noted has ‘long’ been a requirement of General Medical Council (GMC) guidance.[4] Because the standard of care in tort law is ‘ consistent with the GMC professional guidance’,5 there have been suggestions that the UK Supreme Court’s ‘landmark’[6] decision in Montgomery may not make much difference in practice.[7]. I suggest that this comparison could usefully serve an altogether different purpose, namely, to focus our attention upon how challenging it can be to communicate effectively with patients
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