Has Montgomery administered the last rites to therapeutic privilege? A diagnosis and a prognosis

Speaker: Professor Rachael Mulheron (Queen Mary University of London)
Chair: The Rt. Hon. Lord Justice Jackson (Royal Courts of Justice)
Admission: Free
Accreditation: This event is accredited with 1 CPD hour with the SRA and BSB
Series: Current Legal Problems 2016-17

About the lecture

In broad terms, the defence of therapeutic privilege excuses a medical practitioner from having to make the sort of disclosure about the risks associated with a medical treatment or procedure which the law would otherwise require, because it is reasonably considered that such disclosure would harm the patient’s health or welfare.

Where is operates successfully, therapeutic privilege is a complete defence.  Hence, it is a very important issue, for doctors (and their insurers) and patients alike.

The problem is that the defence has suffered from an almost complete lack of judicial discussion or delineation in England and Wales to date.  Indeed, it must rank as one of the most ‘obscure’ defences in this jurisdiction. The recent Supreme Court decision in Montgomery v Lanarkshire Health Board (Scotland), delivered in March 2015, endorses the existence of the defence, but does little to clarify its scope or its ingredients – and in fact, may have implicitly obliterated the defence, in any event.

The purpose of this lecture is three-fold.  First, the lecture will outline those limited circumstances in which therapeutic privilege has actually worked in English jurisprudence to date. Secondly, the impact of Montgomery on the operation of the defence will be analysed.  Thirdly, the lecture will challenge the English judiciary either to adopt some workable version of the defence (and two versions will be proposed for consideration) or to expressly abolish it altogether.

It does little for the clarity of Tort jurisprudence, if a complete defence to an allegation of negligence is a defence ‘in name only’.  Some improvement in this area is desperately required, for the sake of medical practitioners, and for those who advise them.

About the speaker

Rachael Mulheron is a Professor at the Department of Law, Queen Mary University of London, where she has taught since 2004. Her principal fields of academic research concerns Class Actions jurisprudence, and Tort law.

Rachael has assisted various law reform commissions, government departments, and law firms, on collective redress-related matters, and publishes regularly in that area, and in numerous areas of tort-related litigation. She is author of the recently-published Principles of Tort Law (Cambridge University Press, 2016).

In 2009, Rachael was appointed as a member of the Civil Justice Council of England and Wales, the jurisdiction’s law reform civil justice body, and in that capacity, has chaired, or participated in, several working parties relating to collective actions, third party funding, and contingency fee law reform. Prior to her academic career, Rachael practised as a litigation solicitor in Brisbane, Australia.

About Current Legal Problems

The Current Legal Problems annual lecture series was established over sixty years ago. The lectures are public, delivered on a weekly basis and chaired by members of the judiciary.

The Current Legal Problems (CLP) annual volume is published on behalf of UCL Laws by Oxford University Press, and features scholarly articles that offer a critical analysis of important current legal issues.

It covers all areas of legal sponsorship and features a wide range of methodological approaches to law. With its emphasis on contemporary developments, CLP is a major point of reference for legal scholarship.

Find out more about CLP on the Oxford University Press website