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7 Med. L. Int'l 1 (2005-2006)

handle is hein.journals/medclint7 and id is 1 raw text is: Medical Law International, 2005, Vol. 7, pp. 1-40 0968-5332/05 $10 © 2005 A B Academic Publishers-Printed in Great Britain GIVING THE REASONABLE PATIENT A VOICE: INFORMATION DISCLOSURE AND THE RELEVANCE OF EMPIRICAL EVIDENCE ALASDAIR MACLEAN Lecturer in Medical Law, University of Glasgow ABSTRACT In England the standard of risk disclosure required of doctors to avoid liability in negligence is governed by the Bolam test. The test is determined by what would be accepted as reasonable by the responsible doctor. Although able to lay down an independent standard, the courts have usually been guided by the medical expert's evidence. The judge's duty to scrutinise expert evidence was reaffirmed by the recent House of Lords ruling in Bolitho v City and Hackney HA.' In Pearce v United Bristol Healthcare NHS Trust,2Lord Woolf MR confirmed that this also applied to risk disclosure. Brazier & Miola argue that Pearce effectively introduces the prudent patient standard into English law.' This paper examines that claim and considers whether it isjustified by the Pearce judgment. The implications of Pearce are explored and, given the appeal to the concept of a material risk, I discuss the relevance of empirical research to determining the standard of disclosure. Finally, a small piece of empirical work is presented as an illustration of the pros and cons of such an approach and as a possible springboard for future research. INTRODUCTION The imperative to obtain the competent patient's consent prior to any medical intervention is recognised in both ethics and law. One of the prerequisites for consent is that the patient has sufficient information to enable him to understand the proposed intervention. The responsibility for ensuring that the patient is adequately informed lies predominantly with the doctor and the scope of this duty depends both on how consent is conceived and on the reason(s) behind the requirement.4 At one extreme, if consent is predicated entirely on the patient's right to self-determination and is seen as a state of mind (i.e. a propositional attitude) then a high standard of disclosure is required and arguably the doctor should have a duty to ensure that the patient understands the information. However, this metaphysical consent may be practically impossible to ensure and should be seen as aspirational rather than as an ethical or legal duty.