The Limits of Litigation: An Interview-Based Analysis of the Limits of Case Law in Developing Patients’ Autonomy-Based Rights in Medical Practice

Abstract There is a widespread perception among academics, doctors and patients that the common law can effectively drive the development and incorporation of patients’ autonomy-based rights into medical practice. However, there is reason to doubt that this is correct. We present a critical analysis of this view, prompted by themes that emerged from interviews with n=31 lawyers and n=24 doctors as part of a larger interdisciplinary study. We focus on the limitations of case law in driving autonomy-respecting clinical practice. Part I examines how the development and impact of decided cases is dominated by practical and economic considerations. It also considers the lack of understanding of case law among clinicians and the extent to which this limits its ability to drive change. Part II sets out our reasons for treating these limitations as a cause for concern. In Part III, we conclude by considering different levers for supporting case law in creating or confirming autonomy-respecting norms in medical practice, suggesting ways in which these might be developed further. We argue that clinical negligence litigation is important as a guide to clinical practice and a means of enforcing autonomy-based patient rights but that it cannot be relied upon to drive changes in practice. Both professional guidance and legislation can augment case law but, for them to be effective, proper communication between doctors and legislators, courts, lawyers and insurance organizations is essential.