Medical negligence: what the patient has to be told

The UK Supreme Court issued a judgement in the case of McCulloch & Ors-v-Forth Valley Health Board in July 2023 clarifying the correct legal test for establishing negligence by a doctor in diagnosis and treatment.

Normally, the Court would apply rules established in an existing body of law which had been set down over time and known as the “Professional Practice Test”. This test had been applied over a number of years, but it had been refined in 2015 in a case called Montgomery-v-Lanarkshire Health Board. In that case the Supreme Court decided that the Professional Practice Test did not apply to the doctors’ advisory role “in discussing with the patient any recommended treatment and possible alternatives and the risks of injury which may be involved”.

In short, the Montgomery case expanded the duty of care on the part of a doctor to ensure that the patient “was aware of all material risks involved in any recommended treatment and of any reasonable alternative or variant treatments”. This meant that the doctors in practice had to discuss alternative courses of treatment which might be available.

In the McCulloch case, Mr McCulloch sadly died of heart problems back in April 2012 following review by a cardiologist at Forth Valley Royal Hospital. That cardiologist, while not accepting negligence, did accept that treatment by antibiotics known as NSAIDs (non-steroidal anti-inflammatory drugs) was an alternative course of treatment for the patient’s particular condition and this had not been discussed with him. However, she did not think it a reasonable treatment for him as she did not think his symptoms were indicative of a standard diagnosis of pericarditis. It was simply the case that she had come to a professional view therefore that such treatment was not appropriate.

The issue in the case was whether or not the duty of care to inform a patient of alternative treatments (as determined by the Montgomery case) was the Professional Practice Test. In brief, the Court indicated that the Professional Practice Test derived from the case of Hunter-v-Hanley was the correct test in determining the reasonable treatment options in respect of which a doctor has a duty of reasonable care to inform a patient. The suggestion by the appellants (Mr McCulloch’s widow and other relatives) that the law be expanded to a duty which would involve the doctor advising about treatments that he or she did not actually consider appropriate for the particular patient was to take matters too far and therefore the Court found against the appellants and upheld the view of the lower courts – the Outer House of the Court of Session and the Inner House, which had both also found in favour of the Health Board.

The Supreme Court held that it was a matter of professional clinical judgement on the part of the clinician that was to be assessed by application of the existing legal tests. To take the duty to the level suggested by the appellants would not have assisted either the patient or the medical profession going forward.

The Supreme Court stressed however that “it is not being suggested that the doctor can simply inform the patient about the treatment option that the doctor prefers”. Therefore if the cardiologist had considered NSAIDs to be a reasonable treatment option (but she happened to prefer another) then omitting to mention them would have been negligent.

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