ORIGINAL ARTICLE Fallacy or Functionality: Law and Policy of Patient Treatment Choice in the NHS Maria K. Sheppard Ó Springer Science+Business Media New York 2014 Abstract It has been claimed that beneath the government rhetoric of patient choice, no real choice exists either in law or in National Health Service (NHS) policy (Whiteman in Health Care Anal 21:146–170, 2013). Thus, choice is con- sidered to be a fallacy in that patients are not able to demand specific treatment, but are only able to express preferences amongst the available options. This article argues that, rather than considering choice only in terms of patient autonomy or consumer rights, choice ought to be seen as serving other functions: Choice serves as a mechanism of destabilisation, i.e., as a lever for change. This is apparent at the level of patient and doctor, and at the level of patient and health authority, but even more so, at the level of government. Patient choice, rather than benefiting the individual, can have effects on a wider scale. It encourages change and reform in healthcare practices and in the NHS institutions. Keywords Patient choice Á National Health Service (NHS) Á Fallacy Á Functionality Á Destabilisation Introduction In her paper, ‘The fallacy of choice in the common law and National Health Service (NHS) policy’, Whiteman [107, p. 167] asserts that the language of patient choice in the NHS is ambiguous and that choice, as a term, ought to be abandoned. The definitions and interpretation of patient choice itself were confusingly linked with other concepts which themselves were open to interpretation, such as autonomy and consent. Although healthcare law generally safeguarded negative patient choice, subject to the assessment of capacity, it did not encompass positive choice or M. K. Sheppard (&) Department of Law, Queen Mary University of London, Mile End Road, London E1 4NS, UK e-mail: maria.sheppard@qmul.ac.uk 123 Health Care Anal DOI 10.1007/s10728-014-0275-6