by Karan Ahluwalia February-14-2024 in Healthcare Law
McCulloch -v- Forth Valley Health Board [2023]: Clarification by the UK Supreme Court on a medical practitioner’s responsibilities and obligations to inform patients of reasonable alternative or variant treatments.
The UK Supreme Court recently handed down a decision in the case of McCulloch -v- Forth Valley Health Board [2023] UKSC 26, in which it explored the issue of informed consent in relation to reasonable alternative treatments.
McCulloch is considered an important development since Montgomery -v- Lanarkshire Health Board [2015] UKSC 11, which for many in the UK represented a significant shift towards patient empowerment, and a move away from deference to the medical profession.
Although subtle differences apply between Montgomery and the Irish position on informed consent, as illustrated in Geoghegan -v- Harris [2000] 3 I.R. 536 and then considered in Fitzpatrick -v- White [2008] 2 I.R. 551, both ultimately emphasised the overarching importance of patient involvement when discussing treatment, and particularly the duty on a medical practitioner to give warnings of any material risk which are a “known or foreseeable complication” of any procedure properly carried out.
Facts of the Case: McCulloch -v- Forth Valley Health Board [2023] UKSC 26
In McCulloch, the Claimant, Mr McCulloch, who presented to the Defendant with chest pains, was prescribed antibiotics and discharged home. He was re-admitted following ongoing complaints of chest pains. Again, he was prescribed antibiotics and was later seen by a cardiologist who noted that he denied having any continued chest pains.
Using clinical judgment, the cardiologist decided not to prescribe non-steroidal anti-inflammatory drugs (NSAIDs) such as ibuprofen. The Claimant sadly died from a cardiac arrest the following day.
Initial Decision from the Inner House of the Court of Session
When considering this case, the Inner House of the Court of Session accepted the Defendant’s evidence that there was a responsible body of Cardiologists that supported the Cardiologist’s decision not to prescribe the Claimant with NSAIDs. As such, the Cardiologist was not found to be negligent having applied the Bolam Test (i.e. a peer review of a medical professional’s actions to determine whether or not the Cardiologist’s actions were negligent).
The Claimant appealed the decision on the basis that the Inner House of the Court of Session had failed to apply the test set out in Montgomery, namely whether there was a failure by the medical practitioner to take reasonable care to ensure that their patient is aware of any material risks involved in any recommended treatment, including any reasonable alternative or variant treatments. The Claimant contended that any reasonable alternative treatment was dependent on the “circumstances, objectives, and values” of the individual patient, and cannot be judged simply by the view of the doctor offering the treatment, even if that view was supported by a reasonable body of medical opinion.
Decision of the UK Supreme Court
In short, when considering what alternative treatment options, if any, should be brought to a patient’s attention, the UK Supreme Court held that the “professional practice test” should apply, i.e. that any particular treatment deemed reasonable was a matter for professional judgment (i.e. the application of the Bolam Test), and ought not to be undermined by a legal test that would override professional judgment.
The UK Supreme Court felt that taking the Claimant’s approach, who submitted that the duty to take reasonable care to ensure that the patient is aware of any reasonable alternative or variant treatments “should be determined by the court, unshackled from the professional practice test”, would simply blur the lines between when a medical practitioner’s role is or is not a matter for professional skill and/or judgment, and in turn result in a significant and unwarranted extension of Montgomery.
Regulatory Healthcare and its impact within McCulloch
In addition, the UK Supreme Court felt that the outcome was consistent with medical professional expertise and guidance, having received interventions from the General Medical Council and the British Medical Association, who supported the view that discussions surrounding treatment options were matters of clinical judgment, learning and experience, and therefore deemed to be an exercise of professional skill and/or judgment.
It was highlighted that there would an “unfortunate conflict in the doctor’s role” if practitioners were obliged to inform patients of treatments that they felt were not required. This would subsequently lead to a patient being “bombarded” with information overload that was unlikely to be in the patient’s best interest, and ultimately may affect crucial decision making, resulting in uncertainly for both the medical professionals and patients, making the overall task confusing and complex.
Furthermore, the Courts felt that this approach avoided uncertainty as the medical professional would understand (a) when they have an advisory role and (b) what that requires of them.
Discussion
The legal position in the UK following the Supreme Court decision in McCulloch means that medical practitioners are not negligent if they do not to discuss a form of alternative treatment, provided that their actions are supported by a responsible body of medical opinion, and provided that their decision making was not illogical.
Ireland
The principles set out in Geoghegan -v- Harris [2000] 3 I.R. 536, that were subsequently reinforced in Fitzpatrick -v- White [2008] 2 I.R. 551 remain good law within the Irish jurisdiction.
However, with informed consent continuing to be an issue in many clinical negligence claims, the issues that have arisen in Montgomery and now McCulloch within the UK courts may come before the courts in Ireland.
Therefore, similar to the UK Supreme Court, the Irish Courts may need to strike a balance between the importance of patients’ involvement and empowerment and ensuring that the medical profession can carry out their primary function, without the additional need of providing unnecessary information that will only hinder their role and increase the risk of information overload for patients.
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About the Author
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Karan Ahluwalia
Karan is an Associate in the healthcare team at Hayes Solicitors. Karan originally qualified in England and Wales and primarily advises clinical practitioners, hospitals, and indemnity bodies on the defence of clinical negligence claims.
Prior to joining Hayes, Karan worked for leading Chambers and Partners and Legal 500 ranked firms primarily in the field of catastrophic claimant clinical claims.