Has Montgomery Administered the Last Rites to Therapeutic Privilege? A Diagnosis and a Prognosis

Mulheron, Rachael

doi:10.1093/clp/cux002

Cited by 2 publications

(7 citation statements)

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“…Even if litigation for negligent disclosure has not increased, many suggest that outcomes have become less predictable post‐ Montgomery 5,32,36,42,47,60,64,77,100 . This unpredictability is commonly attributed to uncertainty concerning how courts will assess material risks, 9,11,19,21,23,32,33,45,46,60,75,77,86,88,89,91,103 apply the subjective patient limb of the test, 9,18,22,23,31,36,41,42,48,60,81,86,90,92 allow the therapeutic exception, 5,6,22,25,31,33,34,37,58‐60,78,82,92 and identify reasonable alternative treatments 9,18,25,28,31,42,59,60,90,92‐94 . We found no data confirming or denying these assertions.…”

Section: Resultsmentioning

confidence: 80%

“…Many articles focus on the Court's elevation of patient autonomy and its disapproval of medical paternalism 3,5‐10,12‐17,19,22,25‐28,30‐68,70‐86,90 . The case is described as ‘the final step in a legal power shift from paternalism to patient autonomy’ 40 and ‘a landmark case…which shifted focus from a traditional paternalistic model of consent towards a more patient‐centred approach’ 33 .…”

Section: Resultsmentioning

confidence: 99%

“…Many articles focus on the Court's elevation of patient autonomy and its disapproval of medical paternalism. 3,[5][6][7][8][9][10][12][13][14][15][16][17]19,22,[25][26][27][28][70][71][72][73][74][75][76][77][78][79][80][81][82][83][84][85][86]90 The case is described as 'the final step in a legal power shift from paternalism to patient autonomy' 40 and 'a landmark case…which shifted focus from a traditional paternalistic model of consent towards a more patientcentred approach'. 33 However, others argue that this narrative is overly simplistic, with one paper noting that pitting autonomy and paternalism against one another does not adequately reflect how 'medical decision making involves a nuanced negotiation of information'.…”

Section: Patient-centred Care and Autonomymentioning

confidence: 99%

“…The application of the therapeutic exception under Montgomery 5,6,22,25,31,33,34,37,[58][59][60]78,82,92 5:…”

mentioning

confidence: 99%

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Montgomery's legal and practical impact: A systematic review at 6 years

Gallez

Skopek

Liddell

et al. 2021

Evaluation Clinical Practice

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Rationale, Aims and Objectives Six years ago, the Supreme Court judgement in Montgomery v Lanarkshire changed medical law. It introduced a new patient‐based standard of care for the communication of treatment risks and alternatives, rejecting the doctor‐based standard that had long governed all aspects of medical negligence. This is the first systematic review to analyse the literature on Montgomery. Our aim is to appraise and synthesize the literature on Montgomery's impact on medicine and the law and to identify areas for further academic enquiry and implications for professional guidance and training. Methods Searches were run in Medline, Embase, PsycINFO, Web of Science, Scopus, Westlaw UK, HeinOnline, and LexisNexis. Two reviewers screened papers. Extracted data was analysed and discussed by an interdisciplinary team. PRISMA guidelines were followed. Results Of the 1134 papers identified, 100 met the inclusion criteria. These papers revealed significant disagreement on four core sets of issues, focusing on Montgomery's impact on: (1) legal and professional duties; (2) medical practice; (3) the patient experience; and (4) litigation. The first set addresses whether the case actually changed doctors' legal and professional duties, the relationship between GMC guidance and medical law, and the boundaries of Montgomery. The second explores whether the decision has incentivized defensive medicine, its resource implications, and doctors' knowledge of it. The third concerns whether and how the decision has promoted patient autonomy and involvement in their own care. The fourth focuses on whether the case has caused an increase in litigation. Conclusions Despite the abundance of legal and medical literature on Montgomery, many issues remain unresolved. Empirical research is required for many of the questions. Doctrinal analysis informed by medical knowledge is also required to assess whether Montgomery may have unrecognized ramifications—for example, whether it will require the disclosure of risks associated with diagnostic uncertainty, where doctors advise patients without performing procedures.

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Section: Resultsmentioning

confidence: 80%

Section: Resultsmentioning

confidence: 99%

Section: Patient-centred Care and Autonomymentioning

confidence: 99%

“…The application of the therapeutic exception under Montgomery 5,6,22,25,31,33,34,37,[58][59][60]78,82,92 5:…”

mentioning

confidence: 99%

See 2 more Smart Citations

Montgomery's legal and practical impact: A systematic review at 6 years

Gallez

Skopek

Liddell

et al. 2021

Evaluation Clinical Practice

View full text Add to dashboard Cite

show abstract

“…142 Ibid, 87. 143 Louis V. Austin, "Hii Chii Kok v (1) Ooi Peng Jin London Lucien; (2) National Cancer Centre: Modifying Montgomery" (2019) 27 Med Law Rev 339,[339][340]. 144 Ibid, 340.…”

Section: Montgomery and Its Ramificationsmentioning

confidence: 99%

Informed Consent and Trisomy Screening: Delineating Parent and Professional Interests

Wile¹

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The landmark decision of Montgomery established that patients' right to self-determination and autonomy underpins the doctrine of informed consent. However, a growing body of medical research routinely conclude that consent for trisomy screening is less than informed.Consent for trisomy screening is not a 'one-off event': it is a multistage and multifaceted process, requiring the involvement and integration of interprofessional practices across the pathway. However, Mordel exposed systemic frailties and disconnects in terms of the processes for securing parent consent for trisomy screening: a dimension often missed by medico-legal studies in this field.With the recent introduction of non-invasive prenatal testing (NIPT) and additional trisomies (Edwards' and Patau's Syndrome) to the traditional Down's Syndrome screening programme, this has exacerbated existing concerns around parent decision-making and consent for screening. Using empirical methods, this study seeks to delineate parent and professional interests for providing and securing consent for trisomy screening.

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Has Montgomery Administered the Last Rites to Therapeutic Privilege? A Diagnosis and a Prognosis

Cited by 2 publications

References 0 publications

Montgomery's legal and practical impact: A systematic review at 6 years

Montgomery's legal and practical impact: A systematic review at 6 years

Informed Consent and Trisomy Screening: Delineating Parent and Professional Interests

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