What is it about?
This article concerns the doctor's 'therapeutic exception' to the duty to disclose information on material risks of treatment to patients. The exception was preserved in the landmark decision of Montgomery v Lanarkshire HB. The article explores the origins and boundaries of the exception, in the UK and abroad, and argues that it is unnecessary and unjustified.
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Why is it important?
The article challenges the existence of the therapeutic exception. The arguments are relevant when revising professional guidelines and in future cases.
Perspectives
Montgomery has potential to enhance the fear of litigation. The vague therapeutic exception does nothing to assuage this and may even exacerbate the problem. Neither the judgement nor the GMC gives adequate guidance on the meaning of serious harm in this context, and clinicians may rightly complain that the legal exhortations to put the individual patient first and to avoid causing serious harm while observing what is predominantly an objective and hypothetical standard of disclosure are both complex and obscure. The Royal College of Surgeons (2016: para. 4.2) warns that ‘The possibility of this [therapeutic] exception presents significant legal difficulties for doctors’.
Professor Emma Cave
Durham University
Read the Original
This page is a summary of: The ill-informed, Common Law World Review, June 2017, SAGE Publications,
DOI: 10.1177/1473779517709452.
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