McCulloch: the meaning of “reasonable alternative treatment”
The Supreme Court’s decision in McCulloch v Forth Valley Health Board [2023] UKSC 26 provides an important clarification of the law relating to a doctor’s obligation to obtain a patient’s informed consent to treatment. The Court unanimously held that whether a treatment is a reasonable alternative is to be determined by application of the professional practice test (i.e. Bolam, as qualified by Bolitho). The Court therefore confirmed that:
- A doctor cannot simply inform a patient about the treatment option or options that the doctor himself or herself prefers.
- Instead, once a range of reasonable treatments have been identified, absent any indication from the patient to the contrary, the doctor must explain all of those alternatives (and the risks involved) to the patient. However, the doctor is not obliged to tell a patient about treatments which the doctor does not consider to be reasonable, to be judged by applying the professional practice test.
- A doctor is not obliged to tell a patient about treatments that the doctor does not consider reasonable (applying the professional practice test), even where the doctor is aware of an alternative body of opinion which considers the treatment to be reasonable.
This casenote is intended to summarise the key factual background and the reasoning being the Court’s decision.
The facts
The Supreme Court held that the professional practice test applies to a doctor’s assessment of whether a treatment is reasonable (i.e. clinically appropriate).
Mr McCulloch was admitted to the Forth Valley Regional Hospital (“FVRH”) on 1 April 2012, with central pleuritic chest pain (having been discharged a few days previously following treatment for similar complaints). His diagnosis was uncertain: he had been discharged with a diagnosis of acute viral myo/pericarditis, but his presentation was complex and was not typical of acute pericarditis.
During his admission he was seen by a highly experienced Consultant Cardiologist, for the purposes of reviewing an echocardiogram that had been performed. She felt the echocardiogram gave no cause for concern but took the opportunity to discuss his condition with him. Mr McCulloch denied any chest pain, palpitations, or breathlessness, appeared well and engaged in conversation.
Of central relevance to the appeal was that the Cardiologist did not discuss with Mr McCulloch the possibility of giving him a non-steroidal anti-inflammatory drug (“NSAID”) such as ibuprofen. She did not do so because he was not in pain when she saw him, and there was no clear diagnosis of pericarditis. Had he complained of pain, she would have given him ibuprofen, but in the absence of pain did not consider NSAIDs to be clinically indicated.
Mr McCulloch appeared to improve and was discharged on the evening of 6 April 2012 without any further input from the Cardiologist. Sadly, he suffered a cardiac arrest at home the following day, as a result of which he died.
The decisions below
At first instance, Mr McCulloch made wide ranging allegations of negligence. The only surviving allegation by the time the matter reached the Supreme Court was a contention that the cardiologist acted in breach of duty in not discussing NSAIDs with Mr McCulloch; and that had she done, he would have accepted them and would have survived. That argument failed both before the Lord Ordinary and on appeal to the Inner House.
The Lord Ordinary accepted that it was standard practice to prescribe NSAIDs to treat pericarditis: they were effective in relieving pain by reducing inflammation, although their effectiveness in treating the underlying pericarditis (as opposed to chest pain) was uncertain. However, that standard practice must be seen in the context that pericarditis typically presents with pain, whereas Mr McCulloch did not have any pain. The Lord Ordinary heard evidence from three cardiologists, and held that the cardiologist’s opinion that NSAIDs were not indicated in the absence of pain was supported by a responsible body of medical opinion, although there was another responsible body which took a different view.
Both the Lord Ordinary and the Inner House each held that whether a treatment was a reasonable alternative was to be assessed by applying the professional practice test (i.e. Bolam, as qualified by Bolitho). In light of the expert evidence, the cardiologist’s decision not to offer NSAIDs to Mr McCulloch was supported by a responsible body of professional opinion. The claim therefore failed, and the Appellants appealed to the Supreme Court.
Issue for the Supreme Court
In Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430 the Court decided that the Bolam test did not apply to the doctor’s role in “discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved”. That advisory role was not a matter of purely professional judgment because respect must be shown for the right of patients to decide what risks they are willing to take. In Montgomery the Court had held that “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”.
The issue which arose in McCulloch was that of the legal test to be applied to the assessment of whether an alternative treatment is reasonable and so needs to be discussed with the patient. The Appellants contended that this assessment was to be undertaken unshackled from Bolam, and by reference to the circumstances, objectives and values of the individual patient. The Respondent contended that this was to be assessed by reference to Bolam, as qualified by Bolitho (“the professional practice test”).
Decision
The Supreme Court held that the professional practice test applies to a doctor’s assessment of whether a treatment is reasonable.
On the facts, the reason the cardiologist did not prescribe NSAIDs was not that she regarded them as a reasonable treatment but decided against it because of risks not discussed with Mr McCulloch, but because, she did not in her professional judgment, regard it as appropriate to offer them. Her professional judgment was supported by expert evidence which was both reasonable and logical. Accordingly she had discharged her duty.
The Court reached this conclusion for a number of reasons (references in square brackets to paragraphs of the decision):
- This approach is wholly consistent with Montgomery, which sought to draw a line between matters which were issues of professional skill or judgment and those which were not. Deciding whether a particular treatment is reasonable is a matter of professional judgment, which ought not to be undermined by a legal test which overrides professional judgment [59]. The Appellants’ approach would blur the clear line drawn in Montgomery between when the doctor’s role is, and is not, a matter of professional skill and judgment [60]. It would have amounted to a significant and unwarranted extension of Montgomery [61].
- It is consistent with the approach in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307. In Duce, Hamblen LJ (as he then was) set out a two-stage test in respect of the disclosure of risks of treatment in the following terms:
“(1) What risks associated with an operation were or should have been known to the medical professional in question. That is a matter falling within the expertise of medical professionals…
(2) Whether the patient should have been told about such risks by reference to whether they were material. That is a matter for the Court to determine …. This issue is not therefore the subject of the Bolam test and not something that can be determined by reference to expert evidence alone…”
In the context of the duty to disclose the risks involved in a medical treatment, the determination of the extent and nature of those risks is a matter of professional judgment governed by the professional practice test. Whilst the Appellants accepted that the identification of treatment options fell into the first stage of Duce, they contended that the duty to inform of reasonable treatments fell into the second stage.
The Supreme Court rejected this submission [65-6]. All matters of professional skill and judgment, to which the professional practice test should be applied, fall within the first stage of the Duce test. The identification of reasonable treatment options is properly a matter of professional skill and judgment.
3. The outcome is consistent with medical professional expertise and guidance, the Court having received interventions from the General Medical Council and the British Medical Association. Their interventions had emphasised the importance of clinical judgment in determining reasonable alternative treatment options [67-70]. Further, it was unlikely to be in a patient’s best interests to bombard them with information about possible alternative treatments (and their risks) which the doctor did not consider reasonable. A filtering of information given to the patient is important [73].
4. This approach avoided a conflict in the doctor’s role. On the Appellants’ construction, the law would require a doctor to inform a patient about a medical treatment which the doctor did not consider to be clinically suitable. The Court considered this would be an unfortunate development [71].
5. Uncertainty is avoided. It is of considerable importance that doctors should be able to understand (a) when they have and advisory role and (b) what that requires of them. The Appellants approach would have led to considerable uncertainty.
As to the scope of the duty to inform, the Court was clear that where a doctor identifies reasonable alternative treatments the patient should be informed of all of them. A doctor cannot simply tell the patient about the treatment option which the doctor prefers [58]. Unless the patient expressly asked for less information, there was no basis on which a doctor should perform an additional filter about which treatments a patient is told about [80]. This is consistent with the second stage in Duce as the Court explained at [66] that
“Once it has been decided what are the reasonable alternative treatments, by applying the professional practice test, the doctor is then under a duty of care to inform the patient of those reasonable alternative treatments and of the material risks of such alternative treatments.”
The Court also addressed the important issue of the duty on a doctor where they are aware of a different practice by others in the profession. Where the doctor does not consider a treatment to be reasonable but is aware (or ought to be aware) of a different view held by an alternative (responsible) body of medical opinion there is no duty on the doctor to discuss that alternative view with the patient. Provided that the doctor’s decision that the treatment is not reasonable satisfies the professional practice test, the doctor has no duty to tell the patient of the views of that alternative body of opinion [81].
Causation
A considerable portion of the parties’ submissions on appeal addressed causation, the Appellants contending that the Court was entitled to infer that Mr McCulloch would have lived if NSAIDs had been prescribed. The determination of those issues will have to wait for another a day, the Court concluding that on its findings “the questions on causation… do not arise and we prefer to say nothing about them” [82].
