- A recent case in the Supreme Court (McCulloch v Forth Valley Health Board, 2023 S.L.T. 72 (“McCulloch”)) has clarified the legal test to be applied to a doctor’s advisory role in telling a patient about treatment options.
The “professional practice test”
- The legal test for establishing negligence by a doctor in diagnosis or treatment is whether the doctor has acted in accordance with a practice accepted as proper by a responsible body of medical opinion. For short this is referred to as the “professional practice test”.
- A doctor however does not only diagnose and treat but also has an advisory role.
A doctor’s advisory role
- In an earlier case in the Supreme Court in 2015 (known as the Montgomery case) it was held that a doctor had an advisory role which was not a matter of purely professional judgment because respect must be shown for the right of patients to decide on the risks to their health which they were willing to run. The court held:
“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore 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.”
- There was therefore a difference between the role of a doctor in diagnosis and treatment, which rests entirely on professional skill and judgment, and the doctor’s advisory role where the doctor must also take into account the patient’s right to decide on the risks to her health which she is willing to run.
The question in the McCulloch case
- A key question in the McCulloch case was what legal test should be applied to the assessment as to whether an alternative treatment is reasonable and requires to be discussed with the patient.
- Essentially, it was argued that the duty to take reasonable care to ensure that the patient is aware “of any reasonable alternative or variant treatments” means all such treatments and that what constitutes a reasonable alternative treatment is to be determined by the court, unshackled from the “professional practice test”.
- But the Supreme Court held that the correct legal test was indeed the “professional practice test” as applies for establishing negligence by a doctor in diagnosis or treatment. It is not some more extensive test. Expressed in general terms the distinctions here can seem somewhat slippery. But the Court helpfully gave a hypothetical example by way of illustration (paragraphing supplied):
“A hypothetical example may help to explain, in more detail, how we regard the law as working.
A doctor will first seek to provide a diagnosis (which may initially be a provisional diagnosis) having, for example, examined the patient, conducted tests, and having had discussions with the patient.
Let us then say that, in respect of that diagnosis, there are ten possible treatment options and that there is a responsible body of medical opinion that would regard each of the ten as possible treatment options.
Let us then say that the doctor, exercising his or her clinical judgment, and supported by a responsible body of medical opinion, decides that only four of them are reasonable.
The doctor is not negligent by failing to inform the patient about the other six even though they are possible alternative treatments. The narrowing down from possible alternative treatments to reasonable alternative treatments is an exercise of clinical judgment to which the professional practice test should be applied.
The duty of reasonable care would then require the doctor to inform the patient not only of the treatment option that the doctor is recommending but also of the other three reasonable alternative treatment options (plus no treatment if that is a reasonable alternative option) indicating their respective advantages and disadvantages and the material risks involved in such treatment options.
It is important to stress that it is not being suggested that the doctor can simply inform the patient about the treatment option or options that the doctor himself or herself prefers. Rather the doctor’s duty of care … is to inform the patient of all reasonable treatment options applying the professional practice test.”
Summary
The case provides further clarity as to the extent of the “informed consent” test in the 2015 Montgomery case which requires doctors to advise patients about the risks and benefits of all reasonable alternative treatments available to that patient, in addition to the recommended treatment option.
The court recognised the importance of the skill and judgment of the medical practitioner treating the individual patient, and said:
“.… deciding what are the reasonable alternative treatments is an exercise of professional skill and judgment.”
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neilly: email Paul@mitchells-roberton.co.uk