Recent Judgement by the Supreme Court of the United Kingdom, regarding the duties of doctors to discuss alternative treatments with patients and what legal test should be applied to assess whether an alternative treatment is reasonable.
On 12 July 2023, the Supreme Court of the United Kingdom gave a judgement with a comprehensive analysis of the principles outlining medical negligence and the legal test for establishing negligence by a doctor in diagnosis or treatment. The main issue in this appeal, a Scottish case which went before the Supreme Court of the United Kingdom, is what legal test should be applied to the assessment of whether an alternative treatment is reasonable and requires discussion with the patient.
The Facts of the Case
The widow and other family members of Mr Neil McCulloch brought a claim against the respondent, Forth Valley Health Board, for damages for negligently causing his death on 7 April 2012. It is alleged that his death was caused by the negligence of Dr Labinjoh, a consultant cardiologist, for whose acts and omissions the respondent is vicariously liable. In particular, it is alleged that (i) on 3 April 2012 Dr Labinjoh should have advised Mr McCulloch of the option of treatment with a non-steroidal anti-inflammatory drug (“NSAID”) (such as ibuprofen) for pericarditis, (ii) had such advice been given, Mr McCulloch would have taken the NSAID, (iii) had he taken the NSAID, he would not have died. The cause of death was recorded as idiopathic pericarditis, which is inflammation of the pericardial sac of the heart.
On 3 April, Dr Labinjoh visited Mr McCulloch after she was asked to assist in the interpretation of Mr McCulloch’s third echocardiogram, unaware that Mr McCulloch had been discharged and re-admitted. As she was assessing whether his clinical presentation was consistent with her interpretation of the echocardiogram, and in response to her specific questions, he denied experiencing any chest pain, palpitations, or shortness of breath.
During her examination, Dr. Labinjoh made a note of her observations and remarked that his clinical presentation contradicts pericardial constriction. She did not regard it as necessary or appropriate to prescribe NSAIDs due to the fact that Mr McCulloch was not in pain at the time she saw him (and there was no clear diagnosis of pericarditis). If he had complained of pain, she would have most likely prescribed an NSAID like ibuprofen. She did not prescribe NSAIDs because she did not, in her professional judgement, regard it as appropriate to do so. On the evening of 6 April, Mr McCulloch was discharged with the decision of other consultants, and on 7 April he suffered a cardiac arrest at home and was taken to FVRH and died in the emergency room.
The First Instance Judgement
The Inner House and the Lord Ordinary in Scotland held that Dr. Labinjoh was not negligent in not discussing with Mr McCulloch the option of prescription of NSAIDs, and that the professional practice test applies. This is the legal test for establishing negligence by a doctor in diagnosis or treatment, and it is whether the doctor has acted in accordance with a practice accepted as proper by a responsible body of medical opinion. This legal test was laid down by McNair J in the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (“Bolam”) and is consistent with what Lord President Clyde said in the leading case of Hunter v Hanley 1955 SC 200 (“Hunter v Hanley”).
The Court held that whether an alternative treatment is reasonable or not, it is determined by the exercise of professional skill and judgement. If a potential treatment is deemed to be unreasonable by the professional practice test, the treatment does not have to be addressed with the patient.
The appellants contend that this ruling is wrong in law. On the one hand, they accept that whether the doctor should know of the existence of an alternative treatment is governed by the professional practice test. On the other hand, they submit that whether the alternative treatments so identified are reasonable depends on the circumstances, objectives and values of the individual patient and cannot be judged simply by the view of the doctor offering the treatment even though that view is supported by a responsible body of medical opinion.
The appellants argued that the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430 (“Montgomery”) applies, where the Supreme Court decided that the professional practice test did not apply to a doctor’s advisory role ‘in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved’. The performance of this advisory role is not a matter of purely professional judgement because respect must be shown for the right of patients to decide on the risks to their health which they are willing to run.
Lord Ordinary rejected the appellants’ argument that Montgomery meant that Dr Labinjoh was under a duty to discuss with Mr McCulloch the option of using NSAIDs to reduce the size of the pericardial effusion, in addition to discussing its risks and benefits in circumstances where, in her professional judgement, she did not regard it as appropriate to do so. Specifically, Lord Ordinary stated that ‘Montgomery…does not go so far as to impose upon the doctor an obligation to disclose and discuss alternatives that he or she does not, in the exercise of professional judgement, regard as reasonable’.
The Decision and the Ratio Decidendi
The Supreme Court decided that the correct legal test to be applied is indeed the professional practice test found in Hunter and Bolam. Therefore, the lower courts made no error of law and there is no basis to reverse their ruling on evidence that Dr. Labinjoh was not negligent. Furthermore, the Supreme Court emphasised the importance of avoiding bombarding the patient with information, stating that ‘to require a doctor to outline the risks of all possible alternative treatments, even those considered not to be reasonable, is unlikely to be in the patient’s best interest and may impair good decision making’. In conclusion, the appeal was dismissed and Dr. Labinjoh was found not negligent.
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