Dear All,

The UKSC handed down judgment in today (12 July 2023): /McCulloch v
Forth Valley Health Board /[2023] UKSC 26 making clear that Montgomery
does not require more than reasonable care and skill in the Bolam form,
for deciding on whether to inform a patient about alternative
treatments. In effect, decisions and information about alternative
treatments are said to be matters of clinical care and skill. The pros
and cons of this position might be debated of course. Below is some
information on the decision.

https://www.supremecourt.uk/cases/uksc-2021-0149.html

The case is a reconsideration and amendment of Montgomery and cases
after (in particular, Duce). The court set out the reasonable care
starting point, and the potential extension beyong that for information
about reasonable alternative treatments, with the ambiguity, reading
between the lines, as basically, when does the normal test in reasonable
care give way:

2. In the case of Montgomery v Lanarkshire Health Board [2015] UKSC
11, [2015]
AC 1430 (“Montgomery”) this court decided that the professional practice
test did not
apply to a doctor’s advisory role “in discussing with the patient any
recommended
treatment and possible alternatives, and the risks of injury which may
be involved”
(para 82). The performance of this advisory role is not a matter of
purely professional
judgment because respect must be shown for the right of patients to
decide on the
risks to their health which they are willing to run. “The doctor is
therefore under a duty
to take reasonable care to ensure that the patient is aware of any
material risks
involved in any recommended treatment, and of any reasonable alternative
or variant
treatments” (para 87). The courts are therefore imposing a standard of
reasonable
care in respect of a doctor’s advisory role that may go beyond what would be
considered proper by a responsible body of medical opinion.

The UKSC summarised the case and facts neatly enough:

4. The Inner House and the Lord Ordinary held that the professional
practice test
applies. Whether an alternative treatment is reasonable depends upon the
exercise of
professional skill and judgment and a treatment which, applying the
professional
practice test, is considered not to be reasonable does not have to be
discussed with
the patient. The appellants contend that this is wrong in law. They
accept that whether
the doctor should know of the existence of an alternative treatment is
governed by the
professional practice test. In contrast, they submit that whether the
alternative
treatments so identified are reasonable depends 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 though that view is supported by a
responsible body of
medical opinion. If the appellants are correct as to the applicable
legal test then
further issues arise in relation to causation.

5. These issues arise in the context of a claim brought by the widow and
other
family members of Mr Neil McCulloch against the respondent, Forth Valley
Health
Board, for damages for negligently causing his death on 7 April 2012. It
is alleged that
his death was caused by the negligence of Dr Labinjoh, a consultant
cardiologist, for
whose acts and omissions the respondent is vicariously liable. In
particular, it is alleged
that (i) on 3 April 2012 Dr Labinjoh should have advised Mr McCulloch of
the option of
treatment with a non-steroidal anti-inflammatory drug (“NSAID”) (such as
ibuprofen)
for pericarditis, (ii) had such advice been given, Mr McCulloch would
have taken the
NSAID, (iii) had he taken the NSAID, he would not have died.

The UKSC gave the grounds:

43. The two principal issues, as articulated by the parties, which arise
on this appeal are:

(1) What legal test should be applied to the assessment as to whether an
alternative treatment is reasonable and requires to be discussed with
the patient?

(2) In particular, did the Inner House and Lord Ordinary err in law in
holding that a doctor’s decision on whether an alternative treatment was
reasonable and required to be discussed with the patient is determined
by the application of the professional practice test found in Hunter v
Hanley and Bolam?

And from answered them firmly by saying it was the normal test in Bolam
etc., see [56] to the end. They explain in some detail, but it boils
down to it being the most practical test. It seems to me to be a
boundary setting issue between clinical care, and the separate duty to
obtain consent (phrased as a duty to inform, which might also be an
attempt to constrain Montgomery). For that reason, one of the
explainations given in a quite full attempt to justify their reasoning
might be important:

59. In line with the distinction drawn in Montgomery at para 83 (see
para 48 above), 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 a legal test that overrides
professional judgment. In other words, deciding what are the reasonable
alternative treatments is an exercise of professional skill and
judgment. That is why, as submitted by Una Doherty KC, counsel for the
respondent, it is appropriate to refer synonymously to reasonable
alternative treatments or to “clinically appropriate” or “clinically
suitable” alternative treatments

All best wishes,

Matt

--
Professor of Civil and Criminal Law
Director of the Institute of European and Comparative Law
Faculty of Law, University of Oxford
matthew.dyson@law.ox.ac.uk
Global Professor of Law, London Law Programme at the University of Notre Dame in England
Associate Member of 6KBW College Hill

Matthew Dyson, Explaining Tort and Crime (CUP, 2022), available here:
https://www.cambridge.org/gb/academic/subjects/law/private-law/explaining-tort-and-crime-legal-development-across-laws-and-legal-systems-18502020?format=HB