Patient No Longer? What Next in Healthcare Law?

Abstract

A series of Supreme Court decisions since 2013 have revisited the fundamental principles of healthcare and medical law established during the 1980s in which the Bolam test became pre-eminent. These decisions represent a watershed and suggest that a reorientation is underway, in which the law is reducing the significance of the status of patients in favour of greater recognition of the human rights of health service users as citizens. Aintree (2013) suggests that respect for professional expertise probably remains intact, but its scope is expressly limited by Montgomery (2015). That case purports to bring the law’s understanding of patients into the modern era, although a close examination reveals that the analysis is deeply flawed. The Supreme Court Justices have shown an intent to give greater scope for human rights arguments, although the basis for this, as yet, lacks a clear rationale or coherence. Montgomery claims to be a radical departure from the previous orthodoxy and suggests a need to revisit many earlier cases. The human rights turn not only alters the doctrines that underpin the law affecting healthcare, but also provides a basis for the courts to assert jurisdiction. While the European Court of Human Rights has developed jurisprudence that defers to a margin of appreciation for democratic legislatures, Nicklinson (2014) shows the UK Supreme Court asserting its authority over Parliament and may indicate that the boundaries of healthcare law are being redrawn. A v N CCG (2017) seems to continue some features of the traditional approach, but R (A & B) v Sec State for Health (2017) confirms Article 8 of the ECHR as a limiting factor, while Doogan (2014) seems to limit its scope in healthcare law (in favour of being able to balance human rights issues through employment law). Together, these developments may represent a profound shift in the constitution of healthcare law.