17 July 2023

The Supreme Court has refused to extend the scope of consent as established in the landmark case of Montgomery and confirmed the appropriate test to be applied by healthcare practitioners when obtaining informed consent is the professional practice test.

Background

The family of the late Mr McCulloch alleged that the failure of a consultant cardiologist, Dr L, to advise Mr McCulloch of a treatment option of using non-steroidal anti-inflammatory drugs (NSAID) led to his death.

Mr McCulloch was admitted to hospital towards the end of March 2012 complaining of chest pain, nausea and vomiting. Dr L concluded that his presentation did not fit with a diagnosis of pericarditis. Mr McCulloch’s condition improved and he was discharged home a few days later with antibiotics. He was readmitted to hospital on 1 April complaining of chest pain. Against the background of further antibiotics, a nursing entry suggesting ‘Nil further chest pain’, an echocardiogram, and Mr McCulloch himself denying any further chest pain, Dr L concluded there was no need to prescribe any additional medical treatment. In particular, she did not consider it necessary to prescribe NSAIDs as Mr McCulloch was no longer experiencing chest pain and there was no clear diagnosis of pericarditis. Mr McCulloch was therefore discharged from hospital with antibiotics on 6 April 2021.

Unfortunately, the following day, Mr McCulloch suffered a cardiac arrest and died, his cause of death being linked to pericarditis. His family raised an action against Forth Valley Health Board alleging they were vicariously liable for Dr L’s actions. Their position was that Mr McCulloch’s death was caused by Dr L’s failure to inform Mr McCulloch that NSAIDs were a possible treatment option. It was alleged that, had he been so advised, he would have opted for this treatment and his death would have been avoided.

The available expert evidence suggested there was a responsible body of medical opinion that would not have informed Mr McCulloch of this treatment option in the clinical circumstances. The court at first instance therefore dismissed the claim and determined that Dr L had not breached her duty.  

The decision was upheld by both the Outer House and Inner House and Mr McCulloch’s family ultimately appealed to the Supreme Court.

Appeal decision

The Supreme Court was asked to consider the duty established by Montgomery v Lanarkshire Health Board [2015] UKSC11 (the leading case on consent), in particular, the duty for a healthcare practitioner 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.

The appellant submitted that what amounts to a reasonable alternative is a matter for the court whilst the respondent argued that this should be assessed by the professional practice test set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and the Scottish equivalent, Hunter v Hanley 1955 SC 200. Those cases provide that a practitioner will not have acted negligently in circumstances where the practitioner’s opinion was that the alternative treatment was not reasonable, and that opinion was supported by a responsible body of medical opinion.  

The Supreme Court rejected the appellant’s submissions for several reasons, including:  

(i)            consistency with what was said in Montgomery;

(ii)           consistency with the two stage test set out in in Duce V Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 [63-66];

(iii)          consistency with medical expertise and guidance;

(iv)          avoiding an unfortunate conflict in the doctor’s role involving doctors informing patients about a treatment that the doctor (and a responsible body of medical opinion) considers clinically inappropriate for the patient;

(v)           not bombarding the patient with information; and

(vi)          not making the law uncertain for doctors who have to apply it.

It was held that Dr L had not acted negligently as in her view prescribing NSAIDs was not reasonable for Mr McCulloch in his clinical circumstances. The Court also ultimately rejected the appellant’s position because doing otherwise would constitute an unwarranted extension of the law on the duty of care to inform (as laid down in Montgomery).

Implications of decision

This decision will no doubt come as a source of relief and clarity to healthcare practitioners and providers, insurers, clinical defence lawyers and medical defence organisations. Had this appeal been allowed, it would inevitably have created practical difficulties for healthcare practitioners by having to explain possible treatments for patients which neither the practitioner (nor a responsible body of medical opinion) considers reasonable for that patient. The effect of this decision should (as the Court suggests) also benefit the patient population who can make a focussed and considered choice as to which treatment to proceed with in the specific set of circumstances.

For more information, please contact:

Sophie Lennox, Solicitor: sle@bto.co.uk / 0131 222 2939