At a Cross-Roads? The Courts’ Shifting Apprehension of the Vulnerability at Stake in the Lay-Healthcare Provider Relationship

Abstract

Few would deny that there is an important difference between the choices that a healthcare professional is meant to empower and those at stake in a mountain expedition. The problem is that the courts’ overwhelming focus on information disclosure has obscured what mere disclosure cannot achieve: allowing patients to retain some active involvement - and hence a sense of authorship - in the decision-making processes that are likely to shape their sense of self for some time to come. Section 1 starts by explaining why such empowerment matters. It does so by considering afresh Parsons’ sociological account of illness. Hugely influential, the latter account has unfairly been interpreted as backing the ‘epistemic inequality demanding paternalism’ stance encapsulated in the Bolam Test.

Section 2 outlines why Montgomery -which limits the scope of the Bolam test- may be deemed a missed opportunity, because of its continued focus on epistemic vulnerability. This narrow focus leads to a regulatory intervention - removing information disclosure from the sphere of medical discretion - that is ill-suited to the end it seeks to achieve (patient empowerment). In contrast, section 3 shows both the transformative potential inherent in the Courts’ recent delineation of a ‘duty to consult’ and the extent to which such transformation cannot stem from judicial intervention alone. Grassroots reflection - and activism across the whole of the professional community - is key to re-imagining how health practices (not just health law) may live up to the responsibility concomitant with the vulnerability described in section 1.

Keywords: Vulnerability, medical ethics, professional responsibility, knowledge asymmetry, risk disclosure, informed consent, healthcare law, professional bodies, illness, parsons, Montgomery, DNACPR, duty to consult