The case of McCulloch and others (Appellants) v Forth Valley Health Board (Respondent) (Scotland) [2023] UKSC 26 is significant as it addresses the appropriate legal test when looking at what constitutes “reasonable alternative treatment”. The Supreme Court unanimously dismissed the appeal and found that the professional practice test set out in Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582 (“Bolam”) is the correct legal test in determining a doctor’s responsibility to discuss reasonable treatment options when obtaining a patient’s informed consent to treatment.
Background
The claim arose out of the death of Mr McCulloch (on 07.04.2012) aged 39 with cardiac tamponade. Mr McCulloch was admitted to Forth Valley Royal Hospital (FVRH) on 23.03.2012 after being acutely unwell with severe chest pain and worsening nausea and vomiting.
Dr Labinjoh (a consultant cardiologist) was asked to review an echocardiogram on 26.03.2012. Although pericarditis was a differential diagnosis, Dr Labinjoh considered that Mr McCulloch’s presentation did not fit with a standard diagnosis of pericarditis and that the care should continue under general medicine instead of cardiology. Mr McCulloch’s condition improved and he was discharged on 30.03.2012 on antibiotics.
Mr McCulloch was readmitted to FVRH on 01.04.2012 with complaints of chest pain, he was treated with intravenous fluids and antibiotics and admitted under the medical team. He underwent a repeat echocardiogram on 02.04.2012 and Dr Labinjoh was asked to assist in interpreting the echocardiogram. She did not know that he had been discharged and readmitted.
Dr Labinjoh’s interpretation of the echocardiogram was that it did not show any meaningful features suggestive of compromise or cardiac tamponade. She nevertheless visited him in the AAU on 03.04.2012 to assess his clinical presentation. He looked well and provided negative responses to her direct questioning on symptoms, including pain and breathlessness, which confirmed her interpretation of the echocardiogram that there were no convincing features of tamponade or pericardial constriction. Dr Labinjoh did not prescribe any medical treatment nor did she have a discussion with Mr McCulloch about the risks and benefits of non-steroidal anti-inflammatories (NSAID’s) She did not consider it was appropriate to do so as he was not in any pain and the diagnosis of pericarditis was not confirmed. She discussed pericardiocentesis as a treatment option but advised against it.
By 06.04.2012 Mr McCulloch’s condition had improved and he was discharged on antibiotics by a different consultant.
On 07.04.2012 Mr McCulloch, suffered a cardiac arrest at home and was taken to FVRH where he unfortunately died.
His Widow and other family members brought a claim against Forth Valley Health Board alleging that they were vicariously liable for Mr McCullough’s death, which they said was caused by Dr Labinjoh’s alleged negligence, alleging that
- on 3 April 2012 Dr Labinjoh should have advised Mr McCulloch of the option of treatment with a non-steroidal anti-inflammatory drug for pericarditis,
- had such advice been given, Mr McCulloch would have taken the NSAID,
- had he taken the NSAID, he would not have died
The medical experts in the matter agreed that that it was standard practice to prescribe NSAIDs to treat pericarditis; although there was no randomised control trial to confirm their effectiveness, in practice patients did seem to improve quite quickly. The experts did not agree on whether or not it was standard to prescribe NSAIDs to patients who do not have pain.
The Lord Ordinary and Inner House found that neither expert could be described as unreasonable or lacking in logical support. Further it was found that “the literature does not seem to support the assertion that NSAIDs have a benefit beyond pain relief.”
The court considered Bolitho and other similar cases and held that “the applicable test is whether the practice of the doctor which is in issue is supported by a reasonable or responsible body of professional opinion.”
The Lord Ordinary and Inner House further considered Montgomery v Lanarkshire Health Board [2015] UKSC 11 (“Montgomery”) and the issue of informed consent and found that Montgomery had no application in the case. It found that the Montgomery duty to advise on risks associated with a proposed course of action and in the absence of the proposed course of action, did not apply where a doctor has rejected a particular treatment because in their professional opinion, that treatment is not indicated in the circumstances. NSAIDs did not constitute a reasonable alternative treatment that required to be discussed with Mr McCulloch. Neither breach nor causation were made out. The Widow and family members appealed to the Supreme Court.
On appeal two issues needed to be determined by the Supreme Court
- What legal test should be applied to the assessment as to whether an alternative treatment is reasonable and needs to be discussed with the patient; and
- Whether the Inner House and Lord Ordinary erred in law in finding that the correct test for determining this is by the application of the professional practice test found in Hunter v Hanley [1955] 1 WLR 582 (“Hunter”) and Bolam.
The decision
The Supreme Court upheld the decision of the lower courts and found that the professional practice test found in Hunter and Bolam was the correct legal test to be applied to the question of what constitutes a reasonable alternative treatment. They further agreed that there was no breach under Montgomery as Dr Labimjoh did not consider NSAIDs were a reasonable treatment alternative in the absence of pain and a definitive diagnosis of pericarditis. No error of law was found in the lower court and the Appeal court did not go behind their decision.
The Supreme Court stated that the doctors had a duty to advise on alternative options that clinically they would consider possible options in the circumstances, but did not have to provide all possible alternatives. They could not, however, restrict the options given to those that they themselves considered to be most appropriate. The court stated that “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 Appeal was dismissed.
Comment
This case provides a reminder that the options which need to be presented to the patient are only those that the doctor considers, within their clinical judgement, to be reasonable options, even where the doctor is aware of other responsible bodies advocating for further alternatives. There is a discrepancy between what a doctor’s duties are when considering treatment options as opposed to their duties when discussing the risks of an injury in the course of recommended treatment. Breaches can arise from either, but different legal tests apply.
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