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McCulloch v Forth Valley Health Board [2023] UKSC 26, the Supreme Court clarifies the meaning of ‘reasonable alternative treatment’

The Supreme Court today handed down an important decision in McCulloch v Forth Valley Health Board concerning a doctor’s duty to obtain a patient’s informed consent to treatment, which clarifies the meaning of the words “reasonable alternative or variant treatments” in Montgomery v Lanarkshire Health Board [2015] UKSC 11.

The Court was faced with a dispute as to whether a particular treatment is a “reasonable alternative” is a matter of professional skill and judgment to be assessed by applying the Bolam test, or whether it is a matter to be determined unshackled from Bolam, and by reference to the circumstances, objectives and values of the individual patient.

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:

  1. A doctor cannot simply inform a patient about the treatment option or options that the doctor himself or herself prefers.
  2. 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 (i.e. clinically appropriate), to be judged by applying the professional practice test.
  3. 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.


An article containing a detailed review of the decision is available here.

David Myhill, with Ewen Campbell and led by Una Doherty KC appeared for the successful Respondent.


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