La parabola del consenso informato nell’esperienza giuridica inglese

Mario Serio

DOI: 10.69099/RCBI-2025-2-04-T9A

ABSTRACT

The traditional view of English private law aimed at placing a defensive shield in favour of professional categories when threatened with liability actions for professional malpractice has gone on for long for,e.g., barristers and medical doctors. As for the latter category one further element which the judiciary used to take account of, in an attempt to exonerate it from the upholding of actions for damages through negligence brought by the injured parties or their heirs, emerged: the necessity to preserve their autonomous choice of the appropriate therapeutic treatment. In particular, this trend made its way into the private law system in cases where the issue at stake was a medical conduct put into effect without the patient’s previous consent. As a matter of fact, the reasoning dating back to a decision of the High Court in 1957 (in the Bolam case) focused on the assumption that, whenever a doctor had acted according to an existing scientific opinion, whether prevailing or not, his/her conduct automatically barred whatever action for damages based on the complaint that the patient had not been made aware of the doctor’s choice.

Nor did the courts for a long time recognise that such a duty to inform could be established on the professional’s part. Gradually the harshness of this way of thinking began to be eroded via growing obiter and minority opinions in alike cases which signalled that leaving patients’ voices unheard would inevitably lead to patent injustice. The turning point was constituted by the UK Supreme Court‘s judgment in the 2015 Montgomery case.

In fact, the Court unanimously held (with the concurring opinion of its future President Lady Hale) that the patient’s self-determination is a fundamental value in the field of civil liability and,consequently, the doctor owed him/ her a duty of care whose breach made him civilly liable. This principle has been standing for just over a decade,even if with a few, minor adjustments by the Court itself.

The essay runs through this evolutionary judicial process, which has been backed by doctrinal views, and concludes that the more the patient’s will is given legal protection by imposing on medical practitioner’s the duty to seek an informed consent, the more the legal system is put in a condition to meet the patient’s demands and the societal expectations.