Bolam applies in informed consent cases – McCulloch and others v Forth Valley Health Board [2023] UKSC 26

The case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 delivered a landmark judgment that sought to move clinical treatment away from paternalism and towards a more patient-centred approach. Previously, in line with Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, a doctor was able to disclose almost nothing to their patients with regard to treatment options, as long as they were supported by a responsible body of medical professionals. The Supreme Court in Montgomery deemed this to be an unacceptable affront to patient and bodily autonomy and ruled that the practitioner 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”.

Since 2015, the Courts have grappled with issues surrounding informed consent and the application of Montgomery and whether the Bolam test still plays any role in the consenting process. In the case of McCulloch and others v Forth Valley Health Board [2023] UKSC 26, the Supreme Court has now provided certainty about who decides what treatment options should be given to a patient.

Background

On 2 April 2012, Mr McCulloch was re-admitted to Forth Valley Royal Hospital complaining of severe chest pain. Previous investigations had indicated possible pericarditis and pericardial effusion. Mr McCulloch was attended by a consultant cardiologist on 3 April, who ruled out tamponade and pericardial constriction. Mr McCulloch was discharged on 6 April, but died the following day as a result of cardiac arrest caused by cardiac tamponade related to pericarditis and pericardial effusion.

Mr McCulloch’s family brought a claim against the Health Board. The main issue in dispute was that the attending cardiologist had failed to comply with the duty set out in Montgomery by not discussing the option of using non-steroidal anti-inflammatory drugs. The claim failed in both the Outer and Inner Houses of the Court of Session. It was held that the duty does not require a doctor to discuss a treatment if the doctor has concluded that the treatment is not a reasonable option in the circumstances of the case.

The Appellants were granted permission to appeal this point of law to the Supreme Court in what President Lord Reed described as “one of the most important medical negligence cases in a long time”.

The Supreme Court decision

While it was clear that Montgomery had shifted the terrain of both medical practice and law by establishing the duty to obtain informed consent, it was less clear who should determine what reasonable alternative treatments should be disclosed to the patient. The key issue was whether the Court is the arbiter of reasonableness or whether the medical profession should determine the ‘menu’ of options to be discussed with the patient.

The Appellants submitted that the test was a Court-based one, with judges having responsibility to make an evaluation of the reasonable options upon hearing expert evidence at trial. Their position was that there should be no filtering by the clinician in establishing the menu of treatment options and a patient should be told all the alternative treatment options, as to do otherwise would be to ‘hollow out’ the patient-centred approach in Montgomery and see a shift back to Bolam paternalism.  By contrast, the Respondent submitted that the assessment of reasonable treatment options could only be an exercise of professional skill and judgment as governed by Bolam. As per Lord Boyd in AH v Greater Glasgow Health Board [2018] CSOH 57, all treatments that were ‘clinically appropriate’ and could objectively treat the condition diagnosed, should be disclosed to the patient and not only the clinician’s recommended course of treatment.

The Court unanimously found in favour of the Respondent and dismissed the appeal. The Court held that, when obtaining informed consent, it is for the doctor to decide on the ‘menu’ of the reasonable alternative treatment options by applying clinical and professional judgment – this is the “Professional Practice Test”.  Once the ‘menu’ of clinically appropriate alternatives has been determined, a doctor must provide a patient with all of those options and will then still need to explain the comparative risks and benefits of each of the reasonable options ‘on the table’, thus allowing the patient to then assess the materiality of the risks explained.  The Supreme Court held that a doctor does not need to advise a patient of each and every alternative treatment option available as doing so would bombard the patient with information.

Comment

The Supreme Court has now resolved the residual tension between Montgomery and Bolam and has removed the uncertainty for clinicians about feeling obliged to advise of all possible treatments, including more doubtful fringe options, so resulting in patients being inundated with options which could be unreasonable in the circumstances.

When a Court comes to apply the “Professional Practice Test” and review whether informed consent was obtained, the doctor’s professional clinical judgment and discretion, when determing the reasonable alternative options, must be supported by a responsible body of medical opinion which will be borne out in the expert evidence.

In June 2023, the Court of Appeal handed down an important judgment in the case of Sidra Bilal & Hassaan Aziz Malik (Administrators on behalf of the estate of Mukhtar Malik, deceased) v St George’s University Hospitals NHS Foundation Trust [2023] EWCA Civ 605 where Bevan Brittan represented the Defendant NHS Trust. The Court of Appeal handed down judgment before McCulloch was heard in the Supreme Court and Lady Justice Davies took the view that the Bolam test is still applicable in cases of informed consent where it is alleged that alternative treatments should have been considered.

It is reassuring that the Court of Appeal and the Supreme Court are in agreement when it comes to the roles of the patient and the doctor in the consenting process. The Supreme Court’s decision reinforces the position that obtaining informed consent is a discussion and a process between the doctor and the patient, who both have important roles to play. The Supreme Court has not rejected Montgomery but its application has been clarified which will be a welcome development for many.

This article was co-written by Geordie Milne, Trainee Solicitor.