“Patient knows best” and the “paradigm” patient: the tensions of relative blame in a clinical context

In Montgomery v Lanarkshire Heath Board [2015] UKSC 11, Lord Reed and Lord Kerr considered that ‘patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices’ The Royal College of Surgeons described Montgomery as a ‘resolute move away from the more paternalistic traditional model of consent and towards a patient-centred perspective.’ In ordinary negligence claims, a defendant may raise the partial defence of contributory negligence: if the court is satisfied on a balance of probabilities, that the claimant has been blameworthy relative to the defendant’s conduct, the fault has contributed to the harm sustained and that it would be just and equitable to reduce damages, then damages may be reduced. Yet contributory negligence has rarely been successful in clinical negligence claims. Why is this? The pre-Montgomery paternalistic approach to the scope of the healthcare practitioner’s duty of care and the patient’s reliance on this led to a weighting of ‘relative fault’ towards the practitioner. Is this now changing? In Zeb v Frimley Health NHS Foundation Trust [2016] EWHC 134 arguments were heard about a patient’s failure to continue with a previous course of treatment and failure to give an accurate history to a treating practitioner. How far does the greater public understanding of the consequences of healthcare and lifestyle choices shape the expectations of the ‘paradigm’ claimant? To what extent can pre- and in-treatment ‘lifestyle’ choices, including exercise, diet and substance abuse, be considered to be causally potent blameworthy conduct leading to a reduction in damages? How do other jurisdictions approach this issue? This presentation aims to explore some of these topical issues