The Medical Doctrine of Informed Consent: How the Commonwealth & United States Helped Form Current UK Medico-legal Practice

Abstract

Finding a working law of informed consent between doctors and patients has been a long haul in the United Kingdom. This article addresses where the UK currently stands on the medico-legal doctrine of informed consent and how the Commonwealth and the United States of America have influenced medical information disclosure laws into the UK. I identify and interpret seven significant UK cases from Sidaway v Governors of the Bethlem Royal Hospital and Maudsley Hospital in 1995 to Montgomery v Lanarkshire Health Board in 2015 and apply the role informed consent case law from Australia, Canada, and the USA has had in our legal jurisdiction. I argue that the common underlying struggle between patient autonomy and medical paternalism in the legal sphere ties all this case law together. I further postulate on how feminist approaches have helped build a stronger legal position for patient autonomy. As Montgomery has been a pivotal departure from previous judicial decisions, there will be inherent issues for doctor-patient information disclosure in both the therapeutic privilege exception and the possibility of over-informing patients. This article also looks at the case study of assisted dying as one possible area for more legal anomalies arising from informed consent.