14 July 2023

Alix Walker, head of the Clinical Negligence Department looks at medical consent law in the recent court of appeal case of McCulloch and others v Forth Valley Health Board (2023).

The law has been clear for several years following the case of Montgomery v Lanarkshire Health Board (2015) in that a patient has the right to understand what a recommended treatment entails in terms of risks and what other treatment options may be available so that they can make an informed decision on whether to proceed with a treatment that has been recommended.

This case also determined what “reasonable alternatives” or “variations in treatments” meant.

In the recent case of McCulloch, the Supreme Court were asked to consider a dispute over whether a particular treatment was a “reasonable alternative”.

To do this they had to consider (a) what legal test should be applied to the assessment on whether an alternative treatment is reasonable (which needs to be discussed with the patient) and (b) whether a doctor’s decision on whether an alternative treatment was reasonable and required patient discussion was determined by the application of the well-established clinical negligence Bolam test.

The Bolam test is the legal test that clinicians will not be negligent in failing to inform a patient of treatment options if their opinion was that a treatment option was not reasonable, and their decision would be supported by a responsible body of medical opinion.

Considering established law the Court in McCulloch found that the right test on whether a treatment was a reasonable alternative is indeed the application of the Bolam test (the “professional practice test”) confirming;

• A doctor cannot only tell a patient of treatment options that they may prefer;
• Once a range of treatment options has been identified the doctor must explain all of those alternatives and the associated risks;
• The doctor is not obliged to tell a patient of treatment options they consider not to be reasonable (when applying the Bolam principles);
• There is no obligation to tell the patient about treatment options the doctor does not consider reasonable even if the doctor considers there may be other doctors who would consider the alternatives as appropriate treatment options.

The Court therefore refused to extend the scope of the professional practice test (Bolam).