McCulloch and others v Forth Valley Health Board (Scotland) [2023] UKSC 26

The Supreme Court decided that a doctor need not tell a patient about a treatment which the doctor does not consider a reasonable option, if a responsible body of medical opinion would agree. Whether an alternative is reasonable is governed by the professional practice test used for diagnosis and treatment, not by the court-imposed duty to warn of material risks. The Court therefore dismissed an appeal by the family of a man who died after a cardiologist did not mention anti-inflammatory drugs she did not regard as appropriate.

The claim

Neil McCulloch died in April 2012 after fluid around his heart compressed it, a condition called cardiac tamponade. His family sued Forth Valley Health Board. They argued that the consultant cardiologist should have discussed an anti-inflammatory drug such as ibuprofen, that he would have taken it, and that it would have prevented his death.

The treatment on 3 April

Mr McCulloch had been in hospital with chest pain and other symptoms. The records referred to inflammation around the heart, although the cardiologist who reviewed his scans was not convinced that this explained his presentation.

On 3 April he told the cardiologist that he was not in pain. Her examination and review of his scan did not suggest that the fluid should be drained. She did not regard anti-inflammatory drugs as appropriate in the absence of pain or a clear diagnosis. She neither prescribed one nor discussed one with him.

What the experts and the lower courts said

The experts agreed that these drugs were commonly used for pericarditis. They disagreed about their benefit for this patient. One expert supported a prescription to address inflammation. Another considered the benefit uncertain in the absence of pain and identified reasons for caution in light of the patient’s other symptoms.

The trial judge found both professional views capable of logical support. The Inner House upheld his decision. The family argued that, even if the consultant could reasonably decide against prescribing the drug, the decision whether to try it belonged to the patient.

The two standards of care

For diagnosis and treatment, a doctor is not negligent if he or she acts in accordance with a practice accepted as proper by a responsible body of medical opinion. The Court called this the professional practice test. It was laid down in Bolam and is consistent with the Scottish case of Hunter v Hanley. Bolitho adds that, in a rare case, a court may reject an opinion incapable of withstanding logical analysis.

Montgomery held that this test does not apply to the doctor’s advisory role. Respect for the patient’s right to decide which health risks to run requires the doctor to take reasonable care to ensure that the patient knows of material risks in any recommended treatment and of any reasonable alternative or variant treatments. The courts set that standard. It may go beyond what a responsible body of medical opinion would regard as proper.

Why the Supreme Court applied the professional practice test

Lord Hamblen and Lord Burrows, with whom Lord Reed, Lord Hodge and Lord Kitchin agreed, held that identifying reasonable alternatives is itself an exercise of professional skill and judgment. It belongs with the doctor’s role in considering treatment options, which Montgomery distinguished from the later role of discussing recommended treatment, reasonable alternatives and risks. The same division appears in Duce: what risks the doctor knew or should have known is a professional question; whether a known risk is material and must be explained is for the court. Which treatments are reasonable — described as clinically appropriate or clinically suitable — is likewise a professional question, closely linked to the risks of those treatments. Only once they have been identified must the doctor explain them and their material risks.

The Court used this illustration. Suppose ten treatments are possible and a responsible body would regard each as a possible option, but the doctor, supported by a responsible body, judges only four reasonable. The doctor is not negligent for failing to mention the other six. The duty is not confined to the doctor’s preferred option. The patient must be told of all the reasonable options, and of no treatment if that too is reasonable, including their advantages, disadvantages and material risks.

The Court rejected an additional filter, raised by the British Medical Association, under which a doctor might tell a less interested patient about fewer of the reasonable alternatives. Discussion may expand or restrict what is clinically reasonable. Once that range is identified, however, the patient should be told of all of them. A patient may ask for more or less information, but that is not the default position.

Application to Dr Labinjoh

Dr Labinjoh did not regard NSAIDs as a reasonable option because Mr McCulloch had no relevant pain and there was no clear diagnosis of pericarditis. Dr Bloomfield’s evidence showed that a responsible body of medical opinion supported her, and the lower courts had found that opinion neither unreasonable nor illogical. There was therefore no breach of the duty to inform recognised in Montgomery, and no basis for going behind the finding that she was not negligent. The family’s real complaint, as the Lord Ordinary had analysed it, was about her clinical assessment, not about a failure to discuss an alternative she had judged reasonable.

Verdict: The Supreme Court unanimously dismissed the family’s appeal. A responsible body of medical opinion supported the cardiologist’s assessment that anti-inflammatory treatment was not a reasonable option for this patient. There was no breach of the duty to discuss alternatives. The Court therefore did not decide whether taking the drug would have prevented his death.

Source: McCulloch and others v Forth Valley Health Board (Scotland) [2023] UKSC 26