Medical Paternalism: Still Alive in English Law?

AuthorAngelo Mogan
PositionUniversity of Southampton
Pages29-34
[2017] University of Southampton Student Law Review Vol.7
29
Medical Paternalism: Still Alive in English law?
Angelo Mogan
University of Southampton
Abstract
Issues surrounding medical paternalism, and whether, and to what extent, such an
approach exists in the law of England and Wales, will be considered in this article.
Cases including Bolam,207 Sidaway208 and Mongomery209 will be analysed in order to
illustrate where and when medical paternalism has a place in English law.
Introduction
workin defines paternalism as the interference with a person’s liberty of
action, justified by reasons referring exclusively to the welfare, good,
happiness, needs, interests or values of the person being coerced. 210
Accordingly, I suggest that medical paternalism, based on Dworkin’s definition,
includes an approach to patients that fails to obtain informed patient consent. As a
result, a patient’s liberty may be interfered with and their well-being may be
compromised. In such circumstances, there is an issue whether such an approach has
a place in English law.
This essay will be divided into two parts, the first part will consider case law which has
led to the development of medical paternalism in England and Wales followed by a
case that arguably marked a shift leading away from medical paternalism. The second
part will then explore cases where medical paternalism still is prevalent. I suggest that
although a paternalistic approach to medical patients may in some circumstances have
receded, particularly in relation to adults considered to be mentally capable, for others
such as children and adults considered to be mentally incapable, a paternalistic
approach may still exist.211
207 Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 (QB) .
208 Sidaway v Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital and others
[1985] AC 871 (HL).
209 Montgomery v Lanarkshire Health Board (General Medical Council Intervening) [2015] UKSC 11;
[2015] AC 1430.
210 Gerald Dworkin, ‘Paternalism’ (1972) 56 The Monist 64.
211 A similar line of argument was put forth in Margaret Brazier and Jos e Miola, ‘Bye-Bye Bolam: A
Medical Litigation Revolution?’ (2000) 8 Med L Rev 85.
D

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