Alex RKIn a decision handed down with considerable speed (the hearing being on 10-11 May 2023, and judgment being delivered on 12 July 2023), the Supreme Court has made clear in McCulloch and others v Forth Valley Health Board [2023] UKSC 26 that the “professional practice test” (i.e. whether the doctor has acted in accordance with a practice accepted as proper by a responsible body of medical opinion) applies to the assessment of whether an alternative treatment is reasonable and requires to be discussed with the patient.
As Lords Hamblen and Burrows (with whom the other three Supreme Court Justices agreed) set out at the start of the judgment, in Montgomery v Lanarkshire Health Board [2015] UKSC 11:
this 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” (para 82). The performance of this advisory role is 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 are willing to run. “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” (para 87). The courts are therefore imposing a standard of reasonable care in respect of a doctor’s advisory role that may go beyond what would be considered proper by a responsible body of medical opinion.
Before the Supreme Court, the appellants (the widow and other family members of Mr McCulloch challenged a decision of the Scottish courts that the professional practice test applied to determining whether an alternative treatment was reasonable. They accepted that whether the doctor should know of the existence of an alternative treatment was governed by the professional practice test. However, they submitted (as summarised at paragraph 4) 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.
Lords Burrows and Hamblen had little hesitation in rejecting the appeal and – somewhat unusually, but helpfully – noted that:
57. 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.
58. 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, in line with Montgomery, is to inform the patient of all reasonable treatment options applying the professional practice test.
Lords Burrows and Hamblen gave a number of reasons for reaching their conclusion, namely (1) consistency with Montgomery; (2) consistency with Duce (a Court of Appeal decision applying Montgomery); (3) consistency with medical professional expertise and guidance; (4) avoiding an unfortunate conflict in the doctor’s role (which would arise if they were required to inform a patient about an option they properly considered to be unreasonable); (5) avoiding bombarding the patient with information; and (6) avoiding uncertainty. In respect of the latter, the Justices expressed their concerns of acceding to the appellants’ approach would be ” would be defensive medicine with the doctor advising on all possible alternative treatment options,
however numerous or clinically inappropriate they may be.”
Comment
Whilst perhaps not entirely surprising as a decision, following both the decision of the Scottish courts and a decision of the Court of Appeal in June 2023 which appears to have been determined without awareness that this case was being heard (see here at paragraph 66), the judgment is both very clear and emphatic.
There will no doubt be a range of views expressed about this judgment, in which the word autonomy will doubtless feature heavily. One way of reading the judgment is to see it as the Supreme Court recognising that autonomy within the medical context is not simply a question of information-giving by medical professionals, but represents a joint exercise between the medical professional as the expert (one hopes) in the medicine, and the patient (or, if they lack capacity, those able to contribute on their behalf) as the expert in themselves.
