Introduction
Recent years have witnessed significant developments in medical negligence jurisprudence. In 2015, the Supreme Court in Montgomery v Lanarkshire Health Board Footnote 1 famously departed from the House of Lords decision in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital Footnote 2 by ruling that the professional practice test set out in Bolam v Friern Hospital Management Committee Footnote 3 no longer applied to the doctor's duty to give advice to the patient. In particular, the Supreme Court in Montgomery held as follows:
The doctor is … under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.Footnote 4
While it is clearly settled in Montgomery that the doctor must disclose reasonable alternative treatments to the patient,Footnote 5 the question arises as to ‘whether an alternative can be reasonable even when many, but not all, medical professionals believe that there is no obvious advantage to adopting it’.Footnote 6 As was rightly predicted then, ‘the breadth of any reasonable alternatives will undoubtedly provide the battleground for much future litigation’.Footnote 7 Almost a decade later, the Supreme Court in McCulloch v Forth Valley Health Board Footnote 8 finally had the opportunity to lay down the applicable legal test in assessing the reasonableness of alternative treatments that the doctor must disclose to the patient.
1. Summary of the case
The facts of McCulloch are as follows. Mr McCulloch, aged 39, died after suffering a cardiac arrest at his home.Footnote 9 His widow and other family members brought a claim in medical negligence against Forth Valley Health Board, alleging that a consultant cardiologist (Dr Labinjoh) was negligent in failing to advise Mr McCulloch of the option of treating him with non-steroidal anti-inflammatory drugs.Footnote 10 In Dr Labinjoh's view, the prescription of non-steroidal anti-inflammatory drugs was not a reasonable alternative treatment as there was no clear diagnosis of pericarditis and Mr McCulloch was not in pain.Footnote 11 Importantly, the expert witnesses had differing views as to whether it was reasonable to prescribe non-steroidal anti-inflammatory drugs to a patient who was not in pain.Footnote 12 In particular, while the medical expert for Mr McCulloch's widow and other family members (Dr Flapan) ‘regarded it as usual practice to prescribe [non-steroidal anti-inflammatory drugs] to a patient who was not in pain because treatment of the inflammation would reduce the size of the pericardial effusion’,Footnote 13 the medical expert for Forth Valley Health Board (Dr Bloomfield) ‘did not consider that there was any benefit from [non-steroidal anti-inflammatory drugs] if they were not required for pain relief’.Footnote 14
Both the Outer House and the Inner House of the Court of Session held that the professional practice test set out in Bolam should be applied in assessing the reasonableness of alternative treatments that the doctor must disclose to the patient, agreeing with Lord Boyd's decision in AH v Greater Glasgow Health Board Footnote 15 that ‘a doctor was not under a duty to advise the patient of an alternative treatment if it was not considered by the doctor to be a reasonable alternative’.Footnote 16 On the facts of McCulloch, given that Dr Bloomfield's opinion, which was ‘neither unreasonable nor illogical’, supported Dr Labinjoh's view that the prescription of non-steroidal anti-inflammatory drugs was not a reasonable alternative treatment, Dr Labinjoh was not negligent in failing to advise Mr McCulloch of that option.Footnote 17 Dissatisfied, Mr McCulloch's widow and other family members appealed to the Supreme Court.
In a unanimous judgment given by Lord Hamblen and Lord Burrows (with whom Lord Reed, Lord Hodge and Lord Kitchin agreed), the Supreme Court dismissed the appeal and agreed with both the Outer House and the Inner House of the Court of Session that ‘the professional practice test … is the correct legal test in determining what are the reasonable treatment options that a doctor has a duty of reasonable care to inform a patient about’.Footnote 18 In other words, this means that a doctor will not be negligent if the doctor does not advise the patient of an alternative treatment which in the doctor's view is not reasonable provided that the doctor's view is ‘supported by a responsible body of medical opinion’.Footnote 19 The Supreme Court gave six reasons in support of the professional practice test. First, the professional practice test is consistent with its earlier decision in Montgomery.Footnote 20 Second, the professional practice test is consistent with the Court of Appeal decision in Duce v Worcestershire Acute Hospitals NHS Trust.Footnote 21 Third, the professional practice test is consistent with the submissions made by the General Medical Council and the British Medical Association (both of which intervened in McCulloch) about ‘the importance of clinical judgment in determining reasonable alternative treatment options’.Footnote 22 Fourth, the professional practice test prevents ‘an unfortunate conflict in the exercise of a doctor's role’ by not requiring the doctor to advise the patient of an alternative treatment which in the doctor's view is not reasonable.Footnote 23 Fifth, the professional practice test prevents the doctor from ‘bombarding the patient with information’.Footnote 24 Sixth, the professional practice test avoids uncertainty and prevents the doctor's task from being ‘inappropriately complex and confusing’.Footnote 25
2. Commentary
While the Supreme Court's judgment in McCulloch is defensible and should be applauded for confirming the applicable legal test in assessing the reasonableness of alternative treatments that the doctor must disclose to the patient, there are two striking features about the judgment. First, the Supreme Court did not consider comparative case law from other common law jurisdictions. This is significant, as the test set out in Montgomery Footnote 26 appears to have been interpreted differently by Singapore's apex court (viz, the Singapore Court of Appeal) in Hii Chii Kok v Ooi Peng Jin London Lucien,Footnote 27 a decision which followed the footsteps of the UK in departing from the professional practice test set out in Bolam in respect of the doctor's duty to give advice to the patient.Footnote 28 Sundaresh Menon CJ, giving the unanimous judgment of the five-member coram of the Singapore Court of Appeal, cited verbatim the test set out in Montgomery Footnote 29 and interpreted it as follows:
Rejecting the Bolam test, the UK Supreme Court [in Montgomery] stated its preference for a variant of the test proposed in Lord Scarman's dissent in Sidaway … It added (or adopted) one refinement to that test, which was … that in addition to risks or alternative treatments which a reasonable patient in a similar position would wish to know of, the doctor was also expected to advise the patient as to risks or alternative treatments which the specific patient would in fact have wished to know of for reasons known, or which should have been known, to the doctor.Footnote 30
Based on this interpretation of Montgomery adopted by the Singapore Court of Appeal in Hii Chii Kok, the professional practice test set out in Bolam does not apply to the medical disclosure of both risks and alternative treatments. Instead, alternative treatments ‘which a reasonable patient in a similar position would wish to know of’ and ‘which the specific patient would in fact have wished to know of for reasons known, or which should have been known, to the doctor’ should be disclosed to the patient.Footnote 31 In a later part of its judgment in Hii Chii Kok, the Singapore Court of Appeal then went on to say that ‘[t]he option of non-treatment should also be communicated if it is an alternative that the reasonable patient, situated as the patient in question was, would regard as material’.Footnote 32 Once again, this suggests that the assessment of the reasonableness of alternative treatments (such as the option of non-treatment) should be undertaken from the patient's perspective. In this regard, the Singapore Court of Appeal's interpretation of Montgomery in Hii Chii Kok is contrary to that in AH,Footnote 33 a decision which was endorsed by both the Outer House and the Inner House of the Court of Session,Footnote 34 as well as the Supreme Court in McCulloch.Footnote 35 As mentioned above, Lord Boyd held in AH that ‘what would amount to reasonable alternatives in Montgomery is to be defined by the doctors rather than the patient’.Footnote 36 It is submitted, therefore, that the Supreme Court in McCulloch could have considered comparative case law from other common law jurisdictions, especially how Montgomery has been interpreted by courts in different jurisdictions (such as Singapore). Indeed, as was aptly observed, ‘Hii [Chii Kok] could be used to influence future interpretations of Montgomery’ even though ‘[t]he Singapore decision is not binding on UK courts’.Footnote 37
Apart from the absence of comparative case law from other common law jurisdictions, another striking feature about the Supreme Court's judgment in McCulloch is that it did not cite any academic writings, which are divided on the applicable legal test in assessing the reasonableness of alternative treatments that the doctor must disclose to the patient. On the one hand, some commentators are in favour of the professional practice test set out in Bolam. For instance, Amirthalingam takes the view that the reasonableness of alternative treatments should be determined by the doctor, who ‘may lawfully decide not to inform the patient of an existing alternative if it is considered unreasonable based on peer professional standards’.Footnote 38 According to Amirthalingam, ‘the duty to advise of treatment options should be governed by Bolam … as this is within the sphere of professional judgment. Respecting patient autonomy does not equate with freedom of choice for the patient’.Footnote 39 In a similar vein, Austin opines that ‘the views of the medical profession will continue to play a role in determining whether an alternative treatment amounted to a reasonable alternative’.Footnote 40
On the other hand, some commentators such as the learned authors of Mason and McCall Smith's Law and Medical Ethics have queried whether the applicability of the professional practice test set out in Bolam in respect of the medical disclosure of alternative treatments ‘aligns with the patient autonomy ethos of Montgomery’.Footnote 41 Notably, the result of applying the professional practice test to the medical disclosure of alternative treatments is ‘a divergence of approach between the requirement to disclose a “material risk” to a patient and that of disclosing a reasonable alternative treatment’.Footnote 42 By contrast, a single test that applies to the medical disclosure of both risks and alternative treatments, whereby ‘both would be judged in relation to what the patient would want to know, by reference to their particular characteristics’, promotes consistency and ‘adheres to the ethos of Montgomery: that there should be an individualistic, patient-centred approach to informed consent’.Footnote 43
As can be seen, there is a wealth of academic writing on the applicable legal test in assessing the reasonableness of alternative treatments that the doctor must disclose to the patient and it would have been desirable if the Supreme Court in McCulloch had considered such academic writings in its judgment. As Lord Burrows (who gave the judgment in McCulloch with Lord Hamblen) said in his Lionel Cohen Lecture 2021, ‘it has been abundantly clear to [him] how useful practical legal scholarship can be in helping to decide a case’.Footnote 44 For instance, in the recent Supreme Court decision in Paul v Royal Wolverhampton NHS Trust,Footnote 45 where the question that had to be determined was ‘whether a doctor, in providing medical services to a patient, … owes a duty to close members of the patient's family to take care to protect them against the risk of injury that they might suffer from the experience of witnessing the death or injury of their relative from an illness caused by the doctor's negligence’,Footnote 46 Lord Burrows revealed that he was ‘assisted by academic writings’ in preparing his dissenting judgment.Footnote 47 A similar point about academic writings was also made by Carr LJ in her Harris Society Annual Lecture 2023, during which she highlighted their importance in ‘helping [judges] to reach law that is conceptually, morally, and legally sound’.Footnote 48
Conclusion
McCulloch is a long-awaited judgment for those who were left uncertain about the applicable legal test in assessing the reasonableness of alternative treatments that the doctor must disclose to the patient after the Supreme Court handed down its landmark decision in Montgomery almost a decade ago. When all is said and done, doctors will probably heave a sigh of relief, as McCulloch has somewhat limited the expansion of liability on the part of doctors in medical negligence cases. Nevertheless, as history has shown, the twists and turns in medical negligence jurisprudence are likely to continue into the future. An issue which remains hitherto unresolved, for instance, is whether the doctor's duty to disclose alternative treatments to the patient extends to ‘treatments which are not funded by the [National Health Service] but might be available privately or overseas’.Footnote 49 One should certainly not rule out a possible threequel from the Supreme Court.
