The test of availability of medical treatment

Abstract

In Montgomery v Lanarkshire Health Board, the Supreme Court declared that patients are entitled to choose among all available treatments. But, who decides what is ‘available’? Doctors rely upon evidence-based medicine (EBM) – a complex epistemology that generates normative recommendations – for determining treatment availability. EBM is required to be applied through exercise of the treating doctor’s clinical judgement, which inescapably involves some value judgements. EBM attempts to accommodate patient values through shared decision-making (SDM). However, SDM remains contingent upon EBM for its starting points, and this contingency provokes a charge of epistemic injustice because it privileges the treating doctor’s judgement over conflicting views. Such a charge was implicit in Montgomery. The Court responded by adopting a strategy that retains reliance on clinical judgement, yet attempts to restrict the treating doctor’s privilege by admitting other professional views. This strategy permits the induction of a three-step test for availability of treatment, which is theoretically appealing but challenges the practical organisation of the medical profession.