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This case review was co-authored by Rachel Westphal, Litigation Assistant, Cambridge.
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 judgment. Applying Montgomery, 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.
Background
This claim was brought by the family of Mr Neil McCulloch against Forth Valley Health Board. Mr McCulloch sadly died on 7 April 2012 following cardiac arrest. It was alleged that the consultant cardiologist who had reviewed Mr McCulloch following a readmission to hospital, should have discussed treatment with non-steroidal anti-inflammatory drug (NSAIDs) for pericarditis with him. It was alleged that if the consultant cardiologist had done so, Mr McCulloch would have taken NSAIDs and not died.
Mr McCulloch had previously been admitted to hospital for chest pain, nausea and vomiting and then discharged. After Mr McCulloch was readmitted, the consultant cardiologist was asked to review an echocardiogram and visited Mr McCulloch to determine if their interpretation of the echocardiogram matched the clinical picture. Mr McCulloch denied chest pain and there was no clear diagnosis of pericarditis. The consultant cardiologist did not find it reasonable to inform Mr McCulloch of NSAIDs as a treatment option considering the lack of pain and lack of a clear diagnosis of pericarditis. Mr McCulloch improved and was discharged; he sadly died the following day.
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.
Decision
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”. In the present case, the consultant cardiologist, utilising clinical judgment, did not view NSAIDs as reasonable due to Mr McCulloch’s lack of pain and lack of clear diagnosis of pericarditis. This was supported by a responsible body of medical opinion. Therefore, the Supreme Court held there was no breach of duty in not informing Mr McCulloch of NSAIDs as an option in light of Montgomery v Lanarkshire Health Board [2015].
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.” This is an application of Montgomery and avoids the “unwarranted extension” of Montgomery submitted by the appellants.
In paragraph 57 of the judgment the Court clarified the issue with a hypothetical example of a diagnosis with “ten possible treatment options”. The Court observed that if a doctor applies clinical judgment and considers only four of those ten options are reasonable, and this is supported by a responsible body of medical opinion, “the doctor is not negligent by failing to inform the patient about the other six treatments even though they are possible alternative treatments.”
Comment
Doctors must apply clinical judgment to determine which potential treatments are reasonable options to discuss with a patient and this should be supported by a responsible body of medical opinion. There is a duty to inform a patient of the reasonable treatment options that are available and the risks and benefits of each. Doctors cannot only inform a patient of treatments they prefer; discussion must be broadened to all reasonable treatment options. There is no duty to inform the patient of treatment options that are not considered reasonable upon exercise of clinical judgment and as supported by a responsible body of medical opinion.
We consider the Supreme Court has come to the correct decision, which reinforces the established law in the area of consent for medical treatment. The law has established the paramount importance of patient autonomy and choice, whilst recognising the difficult role clinicians play in informing patients of reasonable available options.
Related item: Should patients be informed of material risks involving technical decisions?
Healthcare
United Kingdom