Supreme Court refuses to extend scope of Montgomery duty of care to inform of risks

The Supreme Court has issued its decision in McCulloch and others (Appellants) v Forth Valley Health Board (Respondent) (Scotland) [2023] UKSC. The court was asked to consider the duty established in Montgomery v Lanarkshire Health Board [2015] UKSC 11, that a doctor must "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 appellant argued that the assessment of what amounts to a reasonable alternative is a matter for the court. The respondent argued that the question of whether a possible treatment is a reasonable alternative should be assessed by the professional practice test.

Mr McCulloch died in April 2012 after suffering a cardiac arrest. He had reported chest pain and received treatment at Forth Valley Hospital. His treating doctor, Dr Labinjoh, concluded his presentation did not fit with pericarditis. He was discharged a few days later, but was then readmitted with chest pain. Dr Labinjoh saw him the following day, when he stated he did not have chest pain. She decided not to offer or prescribe non-steroidal inflammatory drugs (“NSAIDs”). Sadly, the day after he was discharged he died from a cardiac arrest. His widow and family brought a claim against Forth Valley Health Board alleging the treating doctor breached her duty of care by failing to inform Mr McCulloch that NSAIDs were a possible treatment option. 

The expert evidence was that while some doctors would have prescribed NSAIDs, a responsible body of medical opinion would have supported the decision not to do so. At first instance it was held that the doctor was not negligent in failing to inform Mr McCulloch about the possible treatment option of NSAIDs. That was upheld on appeal. The Supreme Court has now upheld that again.

The case is of significance as the Supreme Court were asked to consider the appropriate test for assessing whether an alternative treatment option ought to have been discussed with a patient. 

The Supreme Court, affirming the decision of the court below, held that the correct test was the so-called ‘professional practice test’ as set out in the key cases of Bolam v Friern Hospital Management Committee (1957) 1 WLR and Hunter v Hanley 1955 SC 200. A doctor will not be negligent in failing to inform the patient of a treatment option if the doctor’s opinion that the treatment option is not reasonable is supported by a reasonable body of medical opinion. 

Importantly, the Supreme Court made clear that it is not for the court to determine what were the reasonable treatment options that a patient should be informed of. That is a matter of professional practice. It provided a number of explanations for that approach, including its consistency with the current case law and particularly Montgomery; consistency with good practice encompassed in medical expertise and guidance; to ensure that doctors are not required to discuss alternatives which they consider are clinically inappropriate; to avoid placing them in a position of conflict or uncertainty about the application of the law; and to avoid the risk of patients needing to be flooded with information.

The Supreme Court’s decision will bring relief to the medical profession. Had the appeal been successful it would have reflected a significant extension of the scope of Montgomery. Doctors would be placed under even more pressure than they currently are, being required to provide patients with a complete analysis of all treatment options in any particular case. The BMA and GMC were both represented as interveners due to their concerns about the potential impact of the appeal. The decision provides clarity to the interpretation of Montgomery, which will also be welcomed by practitioners in this field.