Medical models and legal categories: an English perspective

Medical paternalism has been criticised for its denial of patients' rights. Though defended on grounds of patient welfare, it can also be detrimental to that interest. English law has predominantly endorsed medical paternalism, and the criticism of this stance has centered on patients' rights. But within established legal categories there is very little scope for analysis based on the rights of patients, the assertion of which may, in any event, not be conducive to the maximisation of their welfare. This article is primarily concerned with cases arising from the hospital setting, the source of most medical litigation. Its purpose is to argue that an approach grounded in the doctor's responsibility for the patient's welfare, but which affords due respect for patients' rights, accords with legal principle.