PMID: 16622981Apr 21, 2006Paper

Giving the reasonable patient a voice: information disclosure and the relevance of empirical evidence

Medical Law International
Alasdair Maclean

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, Lord 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 is justified 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.

Citations

Aug 19, 2009·Journal of Cardiothoracic and Vascular Anesthesia·John G T Augoustides, Albert T Cheung
Jul 13, 2019·The Journal of Law, Medicine & Ethics : a Journal of the American Society of Law, Medicine & Ethics·Rebecca Dresser
Dec 4, 2019·Asian Bioethics Review·Supriya Subramani

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