Does doctor really know best? The New Dawn of Medical Paternalism | Medical Negligence and Personal Injury Blog | Kingsley Napley

Prior to the landmark decision of Montgomery v Lanarkshire Health Board [2015], medical paternalism was standard within the NHS.

The mantra of ‘doctor knows best’ was followed, with patient choice trailing behind. With years of training and experience it was felt that doctors could make the best choice for the patient.

Following the Montgomery decision in 2015, patient autonomy came to the helm and it was found that a patient was entitled to decide which, if any, of the available treatments to undergo.

Furthermore, informed consent for treatment had to be obtained to maintain bodily integrity with doctors under a duty to ensure that patients were aware of any material risks in recommended treatment or of any other alternative treatments.

Autonomy and choice became a central part of patient treatment.

The decision meant power was now shared between patient and doctor. The idea of patients as a recipient of a service became a popular concept. And as a consumer, the patient had the right to make a personal choice whether this was entirely was what was recommended by the doctor or not.

For many, the Supreme Court decision symbolised a new era regarding the doctor/patient relationship. Paternalism was on the back foot with the inception of patient agency. Hospitals became a platform in which patients voices would be heard, creating a dialogue between the healthcare professional and patient.

In 2023, in the Scottish case of McCulloch v Forth Valley Health Board the issue was reconsidered, specifically regarding the extent of required disclosure on alternative treatment options.

The Supreme Court was asked to consider the concept of ‘reasonable’ treatment options. The appellants argued that what was considered a reasonable alternative treatment was to be determined by the courts, taking into account specific circumstances of the case and what an individual in the patient’s position might want to consent or consider in regards to treatment options.

However, the Supreme Court found that the correct test to apply in regards to ‘reasonable treatment options’ was the Bolam test. Subsequently, a doctor is entitled to only offer alternative treatments that they think are clinically reasonable and are protected in this decision as long as a reasonable body of medical opinion would agree. As a result, the ‘menu’ of treatment options available to patients appears to have narrowed, as disclosed options will be determined by the opinion of doctors.

Arguably this decision appears to make a semi U-turn on the decision in Montgomery. Now a patient seen by one doctor may not be offered a treatment, but if they had been seen by another doctor they may have been offered this. It could be argued therefore that the scope of patient choice has been restricted.

The healthcare industry is subsequently having to reconcile with a change in expectations of a doctor’s advisory role and the redrawing of lines in the sand.

Further information

If you have any questions, please contact Lucy Reast or James Bell in our Medical Negligence & Personal Injury team. 

About the authors

Lucy Reast is a trainee solicitor at Kingsley Napley and is currently sitting in Clinical Negligence and Personal Injury as her first seat.

James Bell is the head of our Medical Negligence and Personal Injury practice and joined the firm in 2023 from Hodge, Jones & Allen. He has undertaken medical negligence and personal injury cases for over 30 years.