Law, Ethics and Medical Decision-Making for Information Disclosure: A Moral Diagnosis

i. Context

Alongside diagnosis and treatment, information disclosure is a fundamental legal duty owed to the doctor to the patient in the medical relationship. This duty is based on a long-standing moral responsibility that a doctor owes to the patient, and as a professional to society. The doctor must act within the patient's best therapeutic interests, and not cause them harm, when providing information before, during, and after treatment.

This duty exists irrespective of whether the patient is consenting to a treatment. Failure to ensure adequate information disclosure fails to respect the dignity and autonomy of a a patient, and denies them the opportunity to make autonomous choices; which can ultimately lead to patient harm. These failures have been only too well evidence in a number of high profile scandels (Alder-Hey, Britol Inquiry) which has shaken trust in the moral and technical expertise of the medical profession, and has subsequently let to political and academic calls for strong ethical regulation.

ii. My Thesis:

Information disclosure, as one of the primary duties of medical practitioners, offers an excellent vignette of forms of ethical and legal standard-setting. These standards have manifested within the law of negligence, and particularly, in relation to the information that patient's need to make an informed consent to treatment. The current law (Montgomery v Lanarkshire Health Board [2015] UKSC 11) requires doctors to disclose an objective content of so patients can understand the risks and benefits of treatment, as well as information patients may want to know.

Currently, the law has the potential to overload patient's with information, and encourage doctors to adopt defensive practices. The law (Chester v Afshar [2004] UKHL 41) has also altered the medical relationship requiring doctors to disclose information exclusively for informed consent. My PhD tracks changes in the law of negligence and ethical gudiance in five stages: between 1950 to present.

I have undertaken an exhaustive review of sociological studies on disclosure practices, patient information need, and communication, to build a in-depth picture of information disclosure practices during these five periods. The thesis identifies correlation between law, decision-making processes and communication outcomes. In doing so, the thesis identifies several overarching conceptual problems with previous and current law.

iii. Monograph:

The fellowship will allow me to write a Monograph which sets out how the different legal and ethical standards relating to information disclosure and how these have affected decision-making in practice. The Monograph will have substantive legal and policy impact; as it will identify the conceptual and practice problems with various standards of disclosure within the law of negligence.

This will be of interest to domestic legislators and lawyers as well as common-law jurisdictions who had adopted similar standards. The Monograph will also be of interest to medical practitioners, medical regulators and insurers, who are seeking to reduce the risk of liability; as it will provide informed real-world guidance on how to make decision's about material information.

iv. Papers I will publish two papers from my thesis:

1. An ethical paper: which will discuss the different conceptualisation of legitimate and illegitimate control within models of autonomy for informed consent. (Target: J Med Ethics)

2. A Legal Analysis: The Montgomery judgement has opened the litigation floodgates; in the last 7-years there have been 70 reported cases. These cases have muddled the legal duties and standards of practitioners. My paper will produce the first conceptually coherent synoptic review of case-law. iv. Workshops

I will host three workshops at the BMA, RCS and Cardiff Law School, to train doctors how to effectively disclose information. This will build my network to recruit for the proposed study.