Regulate Informed Consent

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Introduction Informed consent is a fundamental concept in medical treatment in respecting the patient’s autonomy regarding what they wish to happen to their bodies and health. There are various ways in which law regulates informed consent to medical treatment. While negligence law is the main way in which issues related to informed consent in medical treatment are dealt with, I argue that the current state of negligence law is unsatisfactory in this regard. The current state of negligence law fails to fully acknowledge the autonomy of patients in the context of informed consent to medical treatment. Thus, there may be value in examining how other types of actions can regulate informed consent to medical treatment in hopes of improving negligence law to better respect patient …show more content…
The leading case is Montgomery v Lanarkshire Health Board, which shifted the relevant test for the disclosure of risks to a materiality test. Doctors are under a duty to disclose any material risks to patients in relation to recommended and alternative treatments. Per Montgomery, “[t]he test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or whether the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it”. The materiality test is both objective and subjective as it considers the position of the reasonable patient and particular patient respectively. Moreover, the materiality test is qualified by the therapeutic exception whereby doctors can “withhold from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patient’s health” and in “circumstances of

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