McCulloch and others v Forth Valley Health Board [2023] UKSC 26
What is the correct legal test to be applied to the assessment as to whether an alternative treatment is reasonable and requires to be discussed with the patient?
McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and Lord President Clyde in the leading Scottish case of Hunter v Hanley 1955 SC 200 held that the legal test for establishing negligence by a doctor in diagnosis or treatment is whether a doctor has acted in accordance with a practice accepted as proper by a responsible body of medical opinion. A qualification of this test, as recognised in Bolitho v City and Hackney Health Authority [1988] AC 232 is that a court can reject the professional opinion if it is incapable of withstanding logical analysis. In the current appeal, the Supreme Court referred to this test as the “professional practice test”.
In the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430, the Supreme Court decided that the professional practice test did not apply to a doctor’s advisory role in discussing with a patient any recommended treatment and possible alternatives, and the risks of injury which may be involved. Rather, the doctor is under a duty to take reasonable care to ensure that a patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The standard of reasonable care in respect of a doctor’s advisory role may therefore impose a duty on a doctor which goes beyond what would be considered appropriate by a responsible body of medical opinion.
In McCulloch, the key issue for the Supreme Court concerned the legal test for assessing whether a doctor’s care had fallen short of the required standard when making a patient aware of an alternative treatment. Mr McCulloch had been admitted to hospital on 23 March 2012 and diagnosed with pericarditis. On 7 April 2012 he died, having suffered a cardiac arrest earlier that day. The key issue for the appeal was whether a decision not to administer non-steroidal anti-inflammatory drugs (“NSAIDs”), or to discuss that possibility with the claimant, was negligent. There was evidence of a responsible body of clinical opinion to the effect that it was not appropriate to discuss NSAIDs with the patient. Was that approach, consistent with the professional practice test but not with Montgomery, sufficient to meet the standard of care required. Put another way, is the standard applicable to discussions about different treatment options governed by Bolam or by Montgomery?
The Inner House and the Lord Ordinary had held that the professional practice test applied. The appellants argued that was wrong in law. The appellants accepted that the question whether a doctor should know an alternative treatment exists is governed by the professional practice test; but they argued that whether the alternative treatments are reasonable will depend on the circumstances, objectives and values of the individual patient and cannot be judged simply by the view of the doctor offering the treatment, even if that view is supported by a responsible body of medical opinion.
The Supreme Court disagreed, and held that the correct legal test is the professional practice test as applied by the lower courts. In its view, in line with the distinction drawn in Montgomery between the exercise of professional skill and judgment and the court-imposed duty of care to inform, the determination of what are reasonable alternative treatments clearly falls within the former and ought not to be undermined by the latter, a legal test that overrides professional judgment.
The Court (at para 57) gave a helpful hypothetical example to explain how the law operates:
“A doctor will first seek to provide a diagnosis (which may initially be a provisional diagnosis) having, for example, examined the patient, conducted tests, and having had discussions with the patient. Let us then say that, in respect of that diagnosis, there are ten possible treatment options and that there is a responsible body of medical opinion that would regard each of the ten as possible treatment options. Let us then say that the doctor, exercising his or her clinical judgment, and supported by a responsible body of medical opinion, decides that only four of them are reasonable. The doctor is not negligent by failing to inform the patient about the other six even though they are possible alternative treatments. The narrowing down from possible alternative treatments to reasonable alternative treatments is an exercise of clinical judgment to which the professional practice test should be applied. The duty of reasonable care would then require the doctor to inform the patient not only of the treatment option that the doctor is recommending but also of the other three reasonable alternative treatment options (plus no treatment if that is a reasonable alternative option) indicating their respective advantages and disadvantages and the material risks involved in such treatment options.”
The appeal was therefore dismissed.
Given the importance of the issues in this appeal, the General Medical Council (GMC) and British Medical Association (BMA) were given permission to intervene. Both the BMA and the GMC emphasised the importance of clinical judgment in determining reasonable alternative treatment options.
In its judgment (para 68), the Supreme Court specifically noted the BMA’s observation that:
“”The discussion of diagnosis, prognosis and treatment options (including the risks of such treatment options) is a matter which is heavily influenced by the doctor’s learning and experience, and to that extent is itself an exercise of professional skill and judgement”. Considering options for treatment “is a matter of professional skill and judgement rather than patient autonomy (and it is inherent in the exercise of a judgement of this sort that there will commonly be a range of different opinions as to what is or is not a clinically reasonable alternative treatment for the particular patient at a particular time).”
The Supreme Court’s view was that these observations provided strong support for the view that the determination of reasonable treatment options is a matter of medical expertise and professional skill and judgment.
Ben Collins KC and Sophie Beesley of Old Square Chambers, instructed by Capital Law, represented the BMA, the leading independent trade union and professional association for doctors and medical students in the UK.
