'A Staged Analysis of Informed Consent: Balancing Medical and Patient Perspectives'

Speaker: Dr Louise Austin

An issue that persistently troubles the UK courts in the context of informed consent is the question of how to balance the role of medical and patient perspectives when setting the standard of disclosure. The courts initially prioritised medical perspectives by adopting the Bolam reasonable doctor test as the standard of disclosure. In 2015, however, the Supreme Court made space for both patient and medical perspectives by adopting a combined reasonable/particular patient standard of disclosure in the context of disclosing information about material risks. More recently, the Supreme Court has returned to its prioritisation of medical perspectives by reverting to Bolam as the standard of disclosure for reasonable alternative treatments. As a consequence, patient perspectives are excluded from consideration of reasonable alternatives and healthcare professionals are held to different standards depending upon what information is to be disclosed. This is unsatisfactory because it fails to recognise that risks and alternatives treatments, and medical and patient perspectives are inextricably linked in the context of informed consent. Drawing inspiration from the decisions in Hii Chii Kok (Singapore) and Duce (the UK), this presentation argues for a staged analysis of the standard of disclosure in informed consent which makes space for both patient and medical perspectives.

Speaker Bio: Louise Austin is a law lecturer at the University of Leicester where she teaches torts and medical law to both undergraduate and postgraduate students. Louise's research focuses on informed consent to treatment and her interest in this area originated in her work as a clinical negligence solicitor. Louise is currently working on a monograph provisionally titled 'A Unified Model of Informed Consent' alongside developing research projects looking at understanding of childbirth options in maternity care and informed consent training in hospitals.

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