What the doctor said: Charles Foster looks at developments in patient autonomy & causation
- Explores caselaw on causation in clinical negligence, notably the Chester exception, Montgomery and Duce.
Nobody doubts that autonomy is a vital principle in medical ethics and law. But autonomy cannot do all the necessary ethical and legal work on its own. It needs to be helped by other principles. Judicial attempts to assert the importance of autonomy risk distorting the law. That is precisely what happened in the House of Lords case of Chester v Afshar [2004] UKHL 41, and it is precisely what many commentators (wrongly) thought happened in the Supreme Court case of Montgomery v Lanarkshire Health Board [2015] UKSC 11.
In Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 the Court of Appeal did its best to mitigate the damage done to the law of causation by Chester (and made it clear that it thought that Chester was wrongly decided), and illustrated that Montgomery is really not as tectonic
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