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McCulloch v Forth Valley Health Board [2023] UKSC 26 - does “doctor know best”?

Should the doctor decide on a reasonable alternative for the patient, or does the patient have autonomy to decide which variants are appropriate?

The Supreme Court’s judgment in McCulloch v Forth Valley Health Board [2023] will come as some welcome relief to defendants looking for more certainty in a post-Montgomery v Lanarkshire Health Board [2015] UKSC 11 landscape.

The issue of consent since Montgomery has focused largely on moving away from the trite principle of “doctor knows best”. Montgomery held that a doctor was under a duty to take reasonable care to ensure that a patient was aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments. The test of whether a risk is “material “is both objective and subjective and relates to what a reasonable person in the patient’s position would consider significant, or, whether the doctor should be aware a particular patient would attach significance to the risk, respectively.

The issue of what is a reasonable alternative or variant treatment has faced much court scrutiny. Is it for the doctor to decide what is a reasonable alternative for the patient, or does the patient have autonomy to decide which variants are appropriate themselves? For instance, if a novel treatment is used by a minority body of opinion but a clinician does not consider it reasonable and does not inform the patient, can that clinician rely on a Bolam defence to determine what is and is not reasonable, or does that in effect take us back to the “doctor knows best” approach that was left behind in the wake of Montgomery?

In Bayley v George Eliot Hospital NHS Trust [2017] EWHC 3398 the court was asked to consider whether the claimant was entitled to be made aware of treatment available outside the UK. The court held the treatment that the claimant alleged should have been counselled was not commonly published in the UK and was “nowhere near being accepted practice” and “a long way off being appropriate”. The alternative treatment must not just bepossible”.

In Malik v St George’s University Hospitals NHS Foundation Trust [2021] EWHC 1913, the High Court applied a Bolam approach and it was determined that it was appropriate not to offer available alternative treatments which a responsible body would have concluded were not reasonable in the circumstances.

The Court of Appeal in Bilal & Malik (administrators of the estate of Mlik deceased) v St George’s University Hospital NHS Foundation Trust [2023] EWCA Civ 605 held that “reasonable in respect of the assessment of alternative or variant treatments encapsulates the Bolam approach” but retained the subjective element insofar asit is for the court to judge the materiality of the risk inherent in any proposed alternative treatment, applying the test of whether a reasonable person in the patient's position would be likely to attach significance to the risk". 

The Supreme Court’s latest judgment in McCulloch provides a definite position. In this case it was alleged that there had been failure to discuss treatment with non-steroidal anti-inflammatory drugs (NSAID) for a presentation of suspected pericarditis in the absence of pain. It was accepted that the deceased would have survived with NSAID treatment. Expert opinion on the use of NSAIDs was split but, as it was accepted by the lower courts that a responsible body of opinion would not treat the presentation with NSAIDS, the defendant had a successful Bolam defence.

On appeal the Supreme Court held that, as in Malik and Bilal, the appropriate approach is a matter for clinical judgment. Whilst a doctor cannot only counsel a patient about treatments the doctor prefers and must identify a range of treatments and inform the patient of the options, they are not obligated to counsel in relation to any of the treatments that they do not consider to be reasonable. Whether the decision not to inform of a treatment that the doctor does not consider reasonable, even if there is a body of clinicians that would deem it reasonable, falls to be determined by application of the Bolam test.

Perhaps doctor does still know best…

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