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McCulloch and Others v Forth Valley Health Board [2023]: Bolam is back in the game for consent

18 August 2023. Published by James Davies, Senior Associate and Emily Snow, Trainee Solicitor

Bolam is well and truly back in the game for consent! The Supreme Court’s decision in McCulloch confirms that the Bolam test should be applied when considering whether alternative treatment options should be discussed with a patient.

Where we were

So, let's remind ourselves as to how we got here. A time that appears a long distant memory for doctors and insurers alike, when in line with Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, doctors had a limited duty to disclose anything to their patients about treatment options, as long as they were supported by a responsible body of medical professionals, i.e, the “professional practice test”.

Montgomery v Lanarkshire Health Board [2015] was a landmark case on the issue of informed consent.  The ruling established that a patient should be informed about anything they want to know in terms of alternative treatments – not just what a doctor deems necessary to reveal.  The case introduced a patient-based standard of care, whereby a doctor should discuss with their 

patient the material risks of treatment, and any reasonable alternative or variant treatment options (including no treatment).  This represented a significant move away from the professional practice test and towards a more patient-centred approach.

Whereas consent was once considered a supporting act to many clinical negligence claims, all of a sudden, consent became the star of the show!

McCulloch – what happened?

Mr McCulloch died of cardiac arrest following numerous hospital admissions for nausea, vomiting and chest pain. The day before his death, a consultant cardiologist discharged Mr McCulloch on the basis that his condition was not life-threatening.  A claim was brought by Mr McCulloch's widow and relatives, who made wide-ranging allegations of negligence against the doctor.  The key allegation was whether the doctor's decision not to administer non-steroidal anti-inflammatory drugs (“NSAIDs”), or to discuss that option with the Claimant, was negligent.  Medical evidence was heard by three cardiologists, and at first instance it was held that the cardiologist’s decision not to offer NSAIDs to Mr McCulloch was supported by a responsible body of professional opinion.  The Claimant's claim therefore failed.

On appeal, the Supreme Court held that the professional practice test (Bolam) applies to a doctor’s assessment of whether a treatment is reasonable.  It was found that the doctor's decision not to prescribe NSAIDs was reasonable because, in her professional judgment, she did not regard it as appropriate to offer them.  When supported by reasonable and logical expert evidence, the doctor had effectively discharged the duty to discuss all risks and alternative treatments, as established in Montgomery.

Impact on Defendants and Insurers

In McCulloch it was unanimously held that a “reasonable alternative” treatment (as described in Montgomery) should be considered using the professional practice test, rather than a purely patient-led approach.   It was held that a doctor should identify a range of reasonable treatments and explain these to the patient – however they are under no obligation to inform the patient about options they do not consider reasonable (even when they have knowledge of an alternative body of opinion which may deem the treatment 'reasonable'.)  

So, what does this mean? For one, McCulloch has essentially removed the uncertainty for doctors about feeling obliged to advise of all possible treatments. This has to be a good thing. Patients are reliant on the expertise of doctors to guide them on their treatment options. Claimant lawyers may disagree, but being inundated with options which could be unreasonable in the circumstances arguably puts too much onus on the patient.

This ruling has come as a welcome relief to medical professionals and their indemnity providers, with the Court emphasising the importance of professional skill and judgment when considering reasonable treatment options.  This approach was supported by the General Medical Council and British Medical Association, who both intervened in the appeal.  The judgment confirmed it is for the doctor to decide what constitutes a reasonable treatment option, not the court.

Whilst this decision is unlikely to take us back to the pre-Montgomery era, when it comes to clinical negligence claims, the Supreme Court has levelled the playing field for doctors facing allegations of inadequate consent. 

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