Healthcare – Duty to inform patients of alternative treatment options

McCulloch and Others v Forth Valley Health Board 2023 UKSC 26

A decision of the UK Supreme Court on doctors' duties to inform patients of alternative treatment options and, key guidance arising from the decision will likely be welcomed by medical professionals.

Background

Mr McCulloch died following a cardiac arrest at home, having been discharged from Forth Valley Royal Hospital (FVRH) a few days earlier.

His family brought a claim against Forth Valley Health Board on the basis of negligent treatment of Mr McCulloch by Dr Labinjoh, consultant cardiologist. The family claimed that Dr Labinjoh should have advised Mr McCulloch of the option of treatment with non-steroidal anti-inflammatory drugs (NSAIDs) for pericarditis. They claimed that, if such advice had been given, he would have taken the NSAIDs; and that had he taken the NSAIDs, he would not have died.

Mr McCulloch was admitted to FVRH on 23 March 2012 with chest pains and worsening nausea. Tests showed abnormalities matching a diagnosis of pericarditis. His condition worsened. On 26 March 2012, Dr Labinjoh was asked to review an echocardiogram and took the view that his presentation did not "fit with a diagnosis of pericarditis". During the next few days Mr McCulloch's condition improved and on 30 March he was discharged home, with antibiotics, to be reviewed 4 weeks later.

He was readmitted on 1 April 2012, with the same symptoms of chest pain. The following day, he had a repeat echocardiogram. Dr Labinjoh's evidence was that she was not, at any time, the consultant responsible for Mr McCulloch's care, but was asked to assist. She reviewed the repeat echocardiogram and visited Mr McCulloch on 3 April 2012 to assess whether her interpretation of the results was consistent with his clinical presentation. Mr McCulloch denied any chest pain, palpitations, or breathlessness. Dr Labinjoh did not prescribe any medical treatment and did not have a discussion with Mr McCulloch about the risks and benefits of a prescription of NSAIDs. She did discuss other treatments. Mr McCulloch was not in pain. In her professional opinion it was not necessary, or appropriate, to prescribe NSAIDs.

On 6 April, Mr McCulloch had improved and was to be discharged. There was a brief call to Dr Labinjoh, who was in Edinburgh about to perform surgery. She was unable to review Mr McCulloch, and said the decision to discharge would need to be made by the responsible consultant. Mr McCulloch was discharged on 6 April 2012 and the following day, suffered a cardiac arrest. He later died in A&E.

Issues for the Supreme Court

At first instance and on appeal, the Court of Session (Scotland's highest civil court) held that the duty which had been set out in Montgomery v Lanarkshire Health Board, does not require a doctor to discuss a treatment with a patient if, (i) in the doctor's professional skill and judgment, that treatment is not a reasonable option in the circumstances, and (ii) that view is supported by a responsible body of medical opinion.

Two main issues arose on appeal to the Supreme Court:

1. What legal test should be applied to the assessment of whether an alternative treatment is reasonable and should be discussed with the patient; and
2. Did the Scottish courts 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 v Friern Hospital Management Committee.

Outcome

The Supreme Court confirmed unanimously that for question (1), the correct legal test is the professional practice test as found in the Scottish case of Hunter v Hanley and the English case of Bolam. A doctor is required to inform a patient of reasonable alternative treatments. If the doctor takes the view that a particular treatment is not a reasonable alternative treatment for that patient, and that view is supported by a responsible body of medical opinion, the doctor will not be negligent in not informing that patient of that alternative treatment.

In the current case, Dr Labinjoh had taken the view that NSAIDs were not a reasonable alternative treatment because Mr McCulloch had no pain. A view supported by a responsible body of medical opinion. Dr Labinjoh did not breach her duty of care to inform Mr McCulloch of the NSAID treatment, and thus, was not negligent.

In answer to question (2), the Supreme Court agreed with the Scottish courts, and dismissed the appeal.

The court did not comment on whether the death would have been prevented if Mr McCulloch had been prescribed NSAIDs. The court took the view that Dr Labinjoh was not in breach of her duty of care in not informing him of possible alternative treatment by NSAIDs. Causation did not need to be considered further.

Comment

The case provides much needed clarity as to the extent of the application of the 'informed consent' test in Montgomery, which requires doctors to advise patients about the risks and benefits of all reasonable treatment options available to that patient, in addition to the recommended treatment option. The court recognised the importance of the skill and judgment of the medical practitioner treating the individual patient, and noted this "ought not to be undermined by a legal test that overrides professional judgment… deciding what are the reasonable alternative treatment is an exercise of professional skill and judgment. That is why…. It is appropriate to refer synonymously to reasonable alternative treatments or to "clinically appropriate" or "clinically suitable" alternative treatments".

This decision makes clear that the duty to inform set out in Montgomery is here to stay; but this is balanced with the professional skill and judgment of the doctor. It is not a blanket requirement for doctors to inform patients of all potential treatments available.

While doctors are held to their duties of care to patients, there is recognition of their particular expertise, and that treating practitioners are likely best placed to decide what treatment options are reasonable.

The decision provides greater clarity to medical practitioners on their duties to advise patients of reasonable alternative treatments.