Emerging Treatment Options

Abstract

This chapter raises the concern that the law is convention-reinforcing in that it gives overwhelming weight and priority to conventional treatment options in formulating legal rules and chills efforts to adopt and disclose emerging treatment options. It raises the issue of whether it is appropriate to apply the “two schools of thought” theory or the Bolam test, which is popular in the context of diagnosis and treatment, in the context of disclosure of treatment options. It is argued that the range of treatment options that fall within the duty to inform may be wider than the range of treatments that satisfy the threshold for the “two schools of thought” doctrine or the Bolam test. A doctor’s duty to inform should not be confined only to conventional, standard and well-established treatment options. In the context of adopting emerging treatment options, the law gives doctors some leeway in trying innovative or new therapies. Doctors have latitude in deciding whether to adopt emerging treatment options. For those who opt against adopting an emerging treatment option, information about that may still fall within the scope of the duty to disclose.