Healthcare Brief: latest decisions - July 2023

A roundup of recent court decisions relating to duty of care, the threshold for Article 2 engagement at inquest and the importance of pleading the specifics of a case.

Supreme Court confirm legal test when determining what alternative treatments must be discussed with a patient

McCulloch and others (Appellants) v Forth Valley Health Board (Respondent) (Scotland) [12.07.2023]

On 12 July 2023, the Supreme Court confirmed that the assessment of whether a possible treatment option is a reasonable one is a matter of clinical judgement. Applying Montgomery v Lanarkshire Health Board [2015], there is a duty of care to inform patients only of all reasonable treatments. 

The case concerned alleged negligence by a doctor who failed to inform a patient of an alternative treatment that the doctor did not consider reasonable, a view which was supported by a responsible body of medical opinion.

At issue was what legal test should be applied when determining what alternative treatments should be discussed with a patient and whether the professional practice test found in Hunter v Hanley [1955] and Bolam v Friern Hospital Management Committee [1957] was applicable. The case originated in Scotland and the Lord Ordinary at first instance and the Inner House on appeal both held that the professional practice test applied. The decision was appealed to the Supreme Court.

The Supreme Court unanimously dismissed the appeal. The professional practice test found in Hunter v Hanley and Bolam was held to be “the correct legal test in determining what are reasonable treatment options that a doctor has a duty of reasonable care to inform a patient about”. 

The doctor’s duty is to exercise clinical judgment to determine reasonable treatment options and as the Court observed at paragraph 58 of the judgment, to “inform the patient of all reasonable treatment options applying the professional practice test.” 

Contacts: Rob Tobin and Lyndsey Combe

Related item: Which alternative treatment options must a doctor discuss with a patient?

Supreme Court decision reinforces high threshold for Article 2 engagement at inquest

R (on the application of Maguire) (Appellant) v His Majesty’s Senior Coroner for Blackpool & Fylde and another (Respondents) [21.06.2023]

The Supreme Court decision reinforces the high threshold for Article 2 of the European Convention on Human Rights engagement at inquest as established by Fernandes and Parkinson in medical cases. As set out at paragraph 2 of the judgment Article 2 “provides, so far as is relevant, that “Everyone’s right to life shall be protected by law”.”

The issues arose from the very sad death of Jacqueline Maguire (referred to in the judgment at the request of her family as “Jackie”) who had Down’s Syndrome and associated severely compromised cognitive and communication abilities. She had lived for more than twenty years in a residential home for young adults. Jackie was under a deprivation of liberty safeguards (DoLS) order. She died following an illness and a series of subsequent failings in respect of her care.

It was contended by the appellant that the Coroner’s court should recognise the state’s positive obligations under Article 2 to “particularly vulnerable persons under the care of the state”. Alternatively, that there was sufficient evidence of systemic problems that the issue of Article 2 ought to be have been decided by the jury.

The Supreme Court held that the Coroner was correct in law in concluding that Article 2 was not engaged on the facts. Whilst Jackie was deprived of her liberty and lacked capacity, this on its own was insufficient to trigger Article 2 engagement. Although she was a vulnerable adult, the residential home did not assume responsibility for all of her physical health needs. The obligation was to provide access to health care if needed, for example by calling for an ambulance.

In respect of the systemic duty, the fact that there was an individual assessment of Jackie’s needs, her capacity and thereafter her best interests, confirmed that the “system under which they were working was appropriate and effective”. Maguire is also a reminder that a proportionality exercise should be exercised in relation to restraint.

Contact: Sarah Moore

Court of Appeal ruling highlights “importance of pleading the specifics of a case”

Sidra Bilal (1) & Hassaan Aziz Malik (Administrators on behalf of the Estate of Mukhtar Malik (Deceased) v St George's University Hospital NHS Foundation Trust [13.06.2023]

This case concerned an appeal following dismissal of the claimant’s claim for personal injury following elective spinal surgery. The claimant’s case was that that there had been failure by the defendant to obtain informed consent for spinal surgery, which although correctly performed had resulted in spinal cord injury and had he been informed of alternative treatments he would have chosen these in preference to surgery.

As set out at paragraph 24 of the judgment, on appeal the appellants’ contended the Judge was “wrong in law”:

  • “To hold that: a responsible body of competent and reasonable neurosurgeons would have offered Mr Malik revision surgery … in the absence or knowledge about the duration of his associated pain”.
  • “To hold that Mr Malik had been made aware of reasonable alternative treatments and had given informed consent” to the surgery.
  • “To hold that causation had not been proved”.

The appeal was dismissed on the basis that no case on the duration of the claimant’s pain had been pleaded and accordingly it would be unfair to the defendant, the Trust clinician and the Judge, for an appeal on that basis to be allowed. At paragraph 44 of the judgment, and with reference to Lombard North Central PLC v Automobile World (UK) Ltd [2010], "the importance of pleading the specifics of a case” was stressed.

Arguments based on Wisniewski v Central Manchester Health Authority [1998] in respect of the absence of a history of the duration of pain were rejected. An analysis of the way Montgomery may be applied was cited by Nicola Davies LJ; pending the Supreme Court judgment in the case of McCulloch v Forth Valley Health Board on the interplay between the Bolam principle and Montgomery. The judgment in McCulloch was handed down by the Supreme Court on 12 July 2023 (see above).

Contact: Kathryn Dwyer

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