FROM SIDAWAY TO PEARCE AND BEYOND: IS THE LEGAL REGULATION OF CONSENT ANY BETTER FOLLOWING A QUARTER OF A CENTURY OF JUDICIALn SCRUTINY?

摘要

In 1987, following a period of increasing judicial activity, Margaret Brazier published her insightful article on the legal regulation of consent: Patient autonomy and consent to treatment: the role of the law? In her article, she exposed the flaws in the law following the House of Lords case of Sidaway. She considered the strengths and weaknesses of the alternative standards of disclosure: the professional or Bolam standard, the reasonable patient standard, and the particular patient standard. After noting that all of these standards have their problems, she suggested that the best way forward was for a national law and ethics commission to explore the issues before revising the law by legislation. Almost a quarter of a century following her article, Professor Brazier's criticisms remain aposite. In this article, I explain her view of the law in 1987 and then I examine the current law through the lens of her article and conclude that her recommendations still have strength.