Opinion: Duty to disclose - Hunter / Bolam welcomed back with open arms
Elizabeth Rose and Craig Christie assess the Supreme Court’s decision in McCulloch v Forth Valley Health Board and the impact of the decision on one’s consent to medical treatment.
The Supreme Court has finally answered the question on everyone’s lips since the landmark decision in Montgomery v Lanarkshire Health Board: what legal test should be applied to the assessment as to whether an alternative treatment is reasonable and requires to be discussed with a patient?
The answer, “the professional practice test” under Hunter/Bolam.
The case was an appeal from the Inner House concerning the death of Neil McCulloch who unfortunately suffered a cardiac arrest caused by cardiac tamponade. Between March and April 2012, Mr McCulloch was admitted to Forth Valley Royal Hospital numerous times with chest pain, nausea, and vomiting. After investigations of his symptoms, including three echocardiograms, the treating consultant, Dr Labinjoh, during a visit on the Acute Admissions Unit, noted his condition was improving and that he had no chest pain. She considered there was no clear diagnosis for pericarditis and therefore decided against prescribing non-steroidal anti-inflammatory drugs (“NSAIDs”). Mr McCulloch was later discharged and died a day later.
Mr McCulloch’s widow and family brought a claim for damages stating that, amongst other things, Dr Labinjoh had breached her duty of care under Montgomery to advise Mr McCulloch that NSAIDs were an alternative treatment. Had he been advised of this, he would have taken an NSAID and survived.
The health board argued that the applicable test was Hunter/Bolam and while some doctors would have advised of and prescribed NSAID in the circumstances, there was a reasonable body of medical opinion that supported Dr Labinjoh’s decision.
Surprisingly, the Supreme Court considered only two decisions in their assessment of the case: Montgomery and Duce v Worcestershire Acute Hospitals NHS Trust  PIQR P18.
In Montgomery, the Supreme Court made a “fundamental distinction” between a doctor’s role in 1) assessing potential investigatory or treatment options; and 2) their role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury involved. These were two separate duties of care where Hunter/Bolam applied to (1); and the test applicable to (2) was that stated in para. 87:
“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 court then noted the decision in Duce which confirmed this distinction. Here, the Court of Appeal confirmed that what risks are associated with a certain treatment is a matter for medical professionals; and whether the patient should be told about such risks is a matter for the court.
The justices held that the applicable legal test to determine what is a “reasonable alternative treatment” was the “professional practice test”. They outlined six reasons:
- It was consistent with the “fundamental distinction” made in Montgomery. The question of reasonable alternative treatments “clearly falls” within the doctor’s exercise of professional judgement;
- It was also consistent with Duce in that the consideration of reasonable alternative treatments is closely linked with a doctor’s assessment of the risks of a treatment;
- It was consistent with medical professional expertise and guidance. Both the General Medical Council and British Medical Association were clear that reasonable alternative treatments was purely for medical practitioners to determine;
- It avoids an “unfortunate conflict” in the doctor’s role in that it would otherwise require the doctor to inform a patient of an alternative treatment which they and a responsible body of medical opinion would consider to be unreasonable;
- It avoids bombarding the patient with information thus averting the impairment of “good decision making”; and
- It avoids making the law uncertain for doctors in applying it.
For these reasons, the family’s appeal was dismissed.
The duty to disclose has now gone from a patient-centric haven to having medical paternalism burst back on to the scene. Montgomery was designed to put decisions about medical treatment firmly back in the patient’s hands as a reflection of not only societal changes in the provision of medicine and access to information online, but also the fact that patients are regarded as, “persons holding rights, rather than passive recipients of the care of the medical profession”. It seems the Supreme Court now considers that patients still need to be partly passive…
For what was the most important “duty to disclose” case since Montgomery, the Supreme Court’s decision seems somewhat of a damp squib. There is barely any analysis of the principles behind the family’s submission. In contrast, the court in Montgomery, for instance, considered case law from other jurisdictions stretching back to the early 1980s which directly influenced the test it formulated.
Likewise, there is little to no consideration of the significance of a doctor’s duty to warn and how the dialogue between doctor and patient informs the discussion on alternative treatments. A key feature of Montgomery was the acknowledgement that the duty to disclose can be tailored depending on the patient. For instance, a doctor can withhold disclosure of a risk if, in their (non-medical) judgement, to do so would cause harm. Likewise, part of the materiality test asks whether: “the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to [the risk]”. Why can the same approach not be applied to reasonable alternative treatments? Because it would be too confusing for doctors, apparently. But all it would involve is the application of the materiality test to the question of reasonable alternative treatments with a few words changed. This is what the family argued for (see para. 75), but was quickly rejected with scant reasoning. And now, due to what is a policy-laden outlook, disclosure of reasonable alternative treatments is in the same position that disclosure of material risks was pre-Montgomery.
It is not difficult to understand the logic of the court’s decision on its face. But, if they looked deeper, they would have found an answer more harmonious with the spirit of Montgomery. Time will tell whether we see reasonable alternative treatments back in London.