Gillian Lolic: McCulloch v Forth Valley Health Board – Montgomery preserved
The Supreme Court has handed down its decision in the appeal of McCulloch & Ors v Forth Valley Health Board  UKSC 26. The court was asked to decide on the extent to which a doctor is required, under a duty of care owed to a patient, to inform the patient about possible alternative treatments to the one that is being recommended. Drummond Miller LLP acted for pursuers in the Supreme court appeal. Gillian Lolic analyses the case and its implications.
Neil McCulloch died on 7 April 2012 shortly after admission to Forth Valley Royal Hospital (FVRH), having suffered a cardiac arrest at home. The cause of death was pericarditis and pericardial effusion. (Inflammation of the sac surrounding the heart and a build up of fluid inside the sac)
In the weeks prior, Mr McCulloch had been a patient of FVRH. He had initially attended with vomiting, and severe chest pain. Tests showed abnormalities compatible with pericarditis. He was also noted to have pericardial effusion. He was treated as an inpatient on two separate occasions, with a working diagnosis of pericarditis. He was under the care of a medical team, with assistance from a cardiologist, Dr Labinjoh.
During both of his stays in hospital, Dr Labinjoh met with Mr McCulloch after reviewing his test results. On his second admission she discussed the option of an invasive medical procedure (pericardiocentesis) involving using a needle to draw out the excess fluid but she could not recommend it as the risks outweighed the benefits. She did not discuss any other treatment options with him. In particular, she did not discuss the possibility of prescribing non-steroidal anti-inflammatory medication (NSAIDs) such as ibuprofen, because she did not consider Mr McCulloch’s symptoms to be in-keeping with a standard diagnosis of pericarditis.
Mr McCulloch died the day after being discharged from hospital. The cause of death was linked to the pericarditis he had suffered from whilst an inpatient.
His family brought a medical negligence claim against the Health Board on several grounds, but most importantly, Dr Labinjoh’s alleged failure to discuss reasonable alternative treatments for his pericarditis. They alleged that if this treatment had been discussed with him, he would have taken an NSAID and would not have died.
The case – lower courts
It was agreed at the court of first instance that the standard treatment for pericarditis was NSAIDs (i.e. Ibuprofen). Dr Labinjoh’s position, however, was that she did not discuss the option of NSAIDs as, at the time of his later admission to hospital, she did not consider Mr McCulloch’s symptoms to be in keeping with a diagnosis of pericarditis. Mr McCulloch was not in pain and her practice was only to prescribe NSAIDs for pericarditis when pain was reported. Her actions/decision-making was supported by the expert cardiology witness for the Health Board.
The pursuers argued that NSAIDs were a reasonable alternative treatment which ought to have been discussed with the patient, in line with the previous authoritative decision on consent, Montgomery v Lanarkshire Health Board  UKSC 11. The Defenders argued that the decision on what were reasonable alternative treatments and what should be discussed with the patient came down to the skill and judgment of the doctor, and that their duty of care should be governed by the “professional practice test” of negligence in Hunter v Hanley 1955 SC 200.
Both the Outer House and Inner House agreed with the Defenders and the pursuers appealed to the Supreme court.
At the Supreme court, arguments were restricted to which legal test should be used to determine what are reasonable alternative treatments and the extent to which a doctor requires to discuss possible alternative treatments with a patient.
For the family it was argued that the doctor is under a duty to take reasonable care to disclose all reasonable alternative treatments, this ought to take into account a range of factors including but not limited to:
- Alternative treatments that a reasonable person in the patient’s position would be likely to attach significance to in the context of making his or her decision
- Alternative treatments that the particular patient would be likely to attach significance to in the context of making such decision
- Alternative treatments that the doctor appreciates, or should appreciate, a responsible body of medical opinion would consider reasonable even though the doctor reasonably elects to recommend a different course of action.
For the Health Board it was argued that the assessment of reasonable alternative treatments is an exercise of professional skill and judgement and is to be judged by the standard Hunter v Hanley test; therefore. if a doctor is aware of a treatment but opts not to discuss it with the patient, so long as a body of reasonable medical professionals would also have decided not to discuss it, she is under no duty to do so.
The court held that in making a decision about what treatment options to discuss with the patient, a doctor is using their expertise and professional skill and judgement and that, therefore, the professional practice test as set out in Hunter v Hanley applies. However, paragraph 58 of the court’s decision states:
“It is important to stress that it is not being suggested that the doctor can simply inform the patient about the treatment option or options that the doctor himself or herself prefers. Rather the doctor’s duty of care, in line with Montgomery, is to inform the patient of all reasonable treatment options applying the professional practice test.”
They held, therefore, that Dr Labinjoh, in exercising her professional expertise, skill and judgment, had decided that NSAIDs were not a reasonable treatment option - and she was supported in this opinion by a reasonable body of medical practitioners. She was not, therefore, negligent in failing to discuss this treatment option with Mr McCulloch. If however she had considered them to be a reasonable treatment, but preferred another course of treatment, then, failing to discuss NSAIDs with him would have been negligent.
Although at face value this decision appears to support a more “doctor-centred” approach than a “patient-centred” approach, this case should not be viewed as a dilution of Montgomery.
The court emphasised that the reasoning behind their decision lay with a desire to ensure the current-patient centred test laid down in the case of Montgomery was neither watered down, nor over-extended. They expressly stated that: “Viewed through the lens of a reasonable alternative treatment, the approach we favour is saying that, in Montgomery, not only should the pursuer have been informed of the risk of vaginal delivery but she should also have been informed of the reasonable alternative treatment of caesarean section”
The court expressly stated that the Montgomery decision is being upheld and not modified in any way by this decision.
Going forward, it would appear that the questions that should now be asked in any case based on an alleged lack of patient consent are:
- What were the reasonable alternative treatment options that ought to have been disclosed given the particular circumstances of the patient? [McCulloch/Hunter v Hanley]
- If a reasonable treatment option was not discussed, is there a body of medical professionals who also would not have discussed said treatment? [McCulloch/Hunter v Hanley]
- If there is such a body, then can that body of practice be dismissed as unreasonable/illogical? [Bolitho]
- Were there any material risks of injury inherent in any of these treatments (or lack thereof) that ought to have been disclosed given the particular circumstances of the patient? [Montgomery]
Although the Supreme court’s decision was clearly not the outcome that we had sought. However, it is hoped that this case now brings clarity to both medical and legal practitioners as to the nature and extent of the duty on a medical professional to advise a patient about reasonable treatment options and the risks associated with them.
Gillian Lolic is an associate at Drummond Miller