ABSTRACT
The medical exception provides that conduct that would normally be unlawful is lawful if performed by a qualified medical practitioner. This is quite a responsibility for a profession to have, and it is imperative that it is used wisely. This exception is contingent upon the act constituting ‘proper medical treatment’; a term which, as others in this collection have highlighted, is fraught with complexity. 1 I do not propose to revisit these arguments here, as they are more than adequately dealt with by those others. Rather, in this chapter I shall explore the question of how English law has determined what decisions should properly be decided by medical professionals. As we shall see, there has been a significant change of approach by the courts from the 1980s and early 1990s (the ‘old’ cases), where medical discretion was allowed to run riot, to decisions made from the mid-1990s onwards (the ‘new’ cases), which are more patient oriented. The change in emphasis has implications for the notion of proper medical treatment and, indeed, the medical exception because when the law designates an act to constitute proper medical treatment there are at least two consequences which are relevant. First, that decisions with respect to that treatment should properly be made by the medical profession and its own standards. Second, a doctor exercising her clinical judgement in making decisions about proper medical treatment should benefit from the protection of the medical exception.
