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    Responsiveness and the Role of Rights in Medical Law: Lessons from Montgomery†

    Arvind, T T and McMahon, Aisling (2020) Responsiveness and the Role of Rights in Medical Law: Lessons from Montgomery†. Medical Law Review, 28 (3). pp. 445-477. ISSN 1464-3790

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    Over time, medical law has moved away from paternalism in favour of an approach grounded in patients’ rights. Using Montgomery v Lanarkshire Health Board (2015) as a case study, we offer a deeper analysis of this emerging approach. We argue that patients’ rights should be evaluated in terms of their contribution to making medical law more socially responsive, by developing it to give effect to social needs and aspirations pertaining to health care. Although rights can play an important role in achieving social responsiveness, they also carry the risk of entrenching approaches unrepresentative of patients’ actual needs and empirical realities. This is evident in Montgomery, where the law, despite being derived from General Medical Council (GMC) guidance, has effects that differ significantly from the GMC’s goals. Drawing on socio-legal literature, we outline a new approach for guiding the use of rights in medical law focused on the functional consequences of rights in facilitating patients’ aspirations, and the capacity of rights to respond to social and institutional contexts in which medical interaction occurs. We conclude by showing how this approach, applied to informed consent, would produce a different and arguably a superior duty, providing a sounder basis for responding to patient needs.

    Item Type: Article
    Keywords: Autonomy; Informed Consent; Institutional Effects; Montgomery; Risk Disclosure; Rights;
    Academic Unit: Assisting Living & Learning,ALL institute
    Faculty of Social Sciences > Law
    Item ID: 16383
    Identification Number:
    Depositing User: Aisling McMahon
    Date Deposited: 03 Aug 2022 07:46
    Journal or Publication Title: Medical Law Review
    Refereed: Yes
    Use Licence: This item is available under a Creative Commons Attribution Non Commercial Share Alike Licence (CC BY-NC-SA). Details of this licence are available here

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