The Fallacy of Choice in the Common Law and NHS Policy

Abstract

Neither the English courts nor the National Health Service (NHS) have been immune to the modern mantra of patient choice. This article examines whether beneath the rhetoric any form of real choice is endorsed either in law or in NHS policy. I explore the case law on 'consent', look at choice within the NHS and highlight the dilemmas that a mismatch of language and practice poses for clinicians. Given the variance in interpretation and lack of consistency for the individual patient I argue for a semantic change that obviates the use of 'choice', focussing instead on the options for treatment that are available and accessible, with due acknowledgement of individual patient preferences, without raising unfettered and false expectations.