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The Fallacy of Choice in the Common Law and NHS Policy

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Abstract

Neither the English courts nor the National Health Service (NHS) have been immune to the modern mantra of patient choice. This article examines whether beneath the rhetoric any form of real choice is endorsed either in law or in NHS policy. I explore the case law on ‘consent’, look at choice within the NHS and highlight the dilemmas that a mismatch of language and practice poses for clinicians. Given the variance in interpretation and lack of consistency for the individual patient I argue for a semantic change that obviates the use of ‘choice’, focussing instead on the options for treatment that are available and accessible, with due acknowledgement of individual patient preferences, without raising unfettered and false expectations.

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Notes

  1. This case hinged on matters of clinical information disclosure and resulted in a modification of causation principles in order to protect autonomy.

  2. Notwithstanding that certain preferences may be seen as so bizarre as to trigger a manipulation of the capacity test.

  3. ‘Choice is fundamental to the delivery of a truly patient-centred NHS as it empowers people to get the health and social care services they want and need .’ [My emphasis]. DH Implementation of the right to choice and information set out in the NHS Constitution (London: DH Publications, 2009).

  4. Known informally as ‘The Darzi report’, after Lord Darzi of Denham who was commissioned to undertake this review by the Government of the day.

  5. Note that this document is applicable to the NHS in England only.

  6. Assumptions apropos: who chooses? what do they choose? what scope do they have for choice? etc.

  7. ‘…it was improper to disunite the callus without consent … it is reasonable that a patient should be told what is about to be done to him, that he may … put himself in such a situation as to enable him to undergo the operation’.

  8. See also Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64CA where Donaldson, LJ likened consent to a ‘flak jacket’ for doctors.

  9. See also General Medical Council (GMC), Seeking Patients’ Consent: the Ethical Considerations (1999) Note the statement ‘… take appropriate steps to find out what patients want to know and ought [my emphasis] to know about their condition and its treatment.’

  10. Lord Templeman. See also Lord Diplock at 895 and 898.

  11. Mrs Sidaway alleged that the neurosurgeon (Mr Falconer—deceased) whilst having warned her of possible damage to the cervical nerve roots, had failed to warn her of possible damage to the cervical cord itself.

  12. See also [56, p. 123]. ‘… this judicial deference to medical opinion is partly due to the complexity of the medical evidence, but might also be explained by a sense of professional solidarity, and by the high regard in which the medical profession has conventionally been held.’

  13. It is notable that Morland J found that a failure to give a risk warning (impotence in this case) could be considered ‘neither reasonable nor responsible.’ Judicial views were shifting.

  14. In Bolitho their Lordships defined the requirement for any professional opinion, including a body of opinion, to ‘withstand logical analysis’. That analysis is judicial analysis.

  15. Lord Hoffman acknowledges the ‘political and economic' consequences of litigation on the NHS perhaps implying that there is the potential shift in causation rules dependent upon whether the cases emanate from the public or private health care sectors.

  16. Priaulx recognises that bodily integrity can be considered a basic physiological need, and the ‘critical importance of bodily integrity to one’s sense of self.

  17. Note the somewhat paradoxical decision where during the time C was refusing consent to a caesarean section she was challenged as lacking capacity, yet once the courts became aware that C had changed her mind in favour of consent, her competency to consent was no longer in doubt.

  18. A multi-factorial situation that included the effects of injury and medication, a lack of credible information apropos the consequences of treatment alternatives and extrinsic family (maternal) pressures making Ms T’s decision ‘less than independent and voluntary.’

  19. It should be noted that as of July 2010 this document is replaced by ‘Treatment and care towards the end of life: good practice in decision making’ (London: GMC, 2010), p. 88.

  20. There is a semantic argument to be had that treatment is at variance with management and that ANH is no more than management.

  21. See headnote.

  22. Known informally as ‘The Darzi report’, after Lord Darzi of Denham who was commissioned to undertake this review by the Government of the day.

  23. Note that this document is applicable to the NHS in England only. HCP’s, their representative bodies, patient groups and the media had eventually protested strongly enough for the Health and Social Care Bill to be delayed. A listening exercise under the auspices of an NHS Future Forum has reported: http://www.healthandcare.dh.gov.uk/category/conversations/futureforum. Accessed 13th June 2011 at 15.00 and the Government responded with http://www.healthandcare.dh.gov.uk/government-response-to-nhs-future-forum. Accessed 14th June 2011 at 14.00; see also http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_127444. For Health Bill amendments see DH Briefing notes on amendments to the Health and Social Care Bill (London, DH, June 2011).

  24. An NHS Commissioning Board will be responsible for commissioning dentistry, community pharmacy and ophthalmic services, as well as national specialised services such as transplantation.

  25. The history and development of the NHS is well detailed elsewhere. A number of texts, often written by medical professionals of some repute, detail the history of the NHS, its politics and the role and regulation of (medical) health professionals. See: Irvine, D., The Doctors’ Tale Professionalism and Public Trust (Oxford: Radcliffe Medical Press Ltd., 2003) 247 pp.

  26. Given the release in July 2010 of Equity and excellence: Liberating the NHS [23], it remains to be seen how devolving ‘power and responsibility … to GPs and their practice teams working in consortia’ in a primary care commissioning format will influence the concept of patient choice.

  27. See also GMC, Treatment and care towards the end of life (2010). Detailed professional guidance on the complex issues that arise at the end of life/near end of life (including resource constraints) that also emphasises involvement of the patient, their partners/family/carers and the health care team in decision-making.

  28. GMC publications carry this phrase as a tagline.

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Acknowledgments

I am grateful to Professor Margot Brazier, Dr. José Miola, Dr. Anne-Maree Farrell, Dr. Rebecca Bennett and Dr. John Coggan for their comments and thoughts on drafts of this paper. Also grateful thanks to two anonymous reviewers for their helpful commentaries and Ms Barbara Long for her patient input. All errors remain my responsibility.

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  1. Bioethics and Medical Jurisprudence, CSEP/ISEI Department of Law, University of Manchester, 16 Barnfield Road East, Davenport, Stockport, SK3 8TT, UK

    Ingrid Whiteman

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Whiteman, I. The Fallacy of Choice in the Common Law and NHS Policy. Health Care Anal 21, 146–170 (2013). https://doi.org/10.1007/s10728-011-0198-4

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