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Supreme Court decision on the issue of informed consent

12 July 2023

Vicki Swanton considers the implications of today's important Supreme Court decision in McCulloch and others (Appellants) v Forth Valley Health Board (Respondent) (Scotland) which concerns the issue of informed consent.

Are you informed?

What is required by a healthcare practitioner to establish that informed consent has been obtained from a patient?

The context

In Montgomery v Lanarkshire Health Board [2015] UKSC 11 ('Montgomery') the Supreme Court held that a doctor "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." 

In today's appeal, ("McCulloch") the Supreme Court was asked to decide the question; What test should be applied when assessing whether an alternative treatment is reasonable and requires to be discussed with the patient?

More specifically, did the doctor in this case fall below the required standard of reasonable care by failing to make a patient aware of an alternative treatment in a situation where the doctor's opinion was that the alternative treatment was not reasonable and that opinion was supported by a responsible body of medical opinion?

It was also asked whether the courts below erred in their approach to the issue of causation.

The Facts

Mr Neil McCulloch died on 7 April 2012 at Forth Valley Royal Hospital, having suffered a cardiac arrest at home. The appellants were Mr McCulloch's widow and other relatives. They claim that his death was caused by the negligence of Dr Catherine Labinjoh, a consultant cardiologist employed by the respondent, the Forth Valley Health Board. Among other things, the appellants allege that, in line with the duty in Montgomery, Dr Labinjoh was required to discuss the option of using non-steroidal anti-inflammatory drugs with Mr McCulloch.

The lower courts applied the Bolam standard and held that the duty in Montgomery does not require a doctor to discuss a course of treatment with their patient if the doctor has concluded, applying their professional skill and judgment, that it is not a reasonable option in the circumstances of the case and the doctor's view is supported by a responsible body of medical opinion. They also held that, even if negligence had been established, the claim would still have failed because the appellants had not proven on the balance of probabilities that it caused Mr McCulloch's death. 

The Supreme Court unanimously dismissed the appeal 

The Supreme Court concluded that the correct test for establishing what is 'reasonable alternative treatment' is the professional practice test i.e. the Bolam standard. As a result of not finding breach the issue of causation was not addressed.

The Judges recognised the need to balance the rights of patients with the practical challenges for healthcare practitioners. Patients should not be bombarded with information (much of which could be irrelevant) which was a real risk if all possible treatment modalities had to be shared with them at every stage in their treatment.

Likewise, healthcare practitioners should only have to offer those treatment options that are consistent with their medical expertise, knowledge and guidance. Whilst some commentators have suggested this limit on what has to be offered to a patient is a return to a paternalistic approach in healthcare, there is a need for balance.

The message from the Supreme Court is therefore; Healthcare practitioners still have to explain the material risks of the treatment options available tailored to the particular patient they are proposing to treat but do not have to spend time setting out options and such risks for treatments that are not clinically appropriate for that individual.

This decision means clarity for patients, healthcare practitioners and those that advise them.

It is hoped that this clear signposting will assist in the area of consent to treatment debates in which factual disputes typically dominate. Helpfully, this decision puts a 'relevance' check on the consenting process for patient and healthcare practitioner. As a result, if a treatment decision and outcome becomes contested, factual and expert input will be relevant.

For further information, please contact Vicki Swanton

Further reading

Briefing Note: Powell v University Hospitals Sussex NHS Foundation Trust


Further Reading