John-Paul Swoboda and Christopher Fleming consider the Supreme Court’s decision clarifying the correct test to apply when considering what treatment options a doctor is under a duty to discuss with a patient.
Montgomery represented a seismic shift in the law in respect of medical consent. The decision was emblematic of a move away from deference to the medical profession and towards patient empowerment. The Supreme Court’s decision in McCullough[1], settles that the legal test to be applied when considering whether an alternative treatment is to be brought to the patient’s attention is Bolam, not Montgomery. As we discuss below, the consequence is that where a medical professional’s decision not to discuss a form of treatment is supported by a responsible body of medical opinion, they will not be negligent in failing to so discuss that form of treatment. In other words, McCulloch represents a tempering of the decision in Montgomery.
The facts
Mr McCullough presented to the Defendant complaining of chest pains. He was prescribed antibiotics and discharged home. A couple days later, he was readmitted complaining of a reoccurrence of chest pain. He was again given antibiotics and was seen by the consultant cardiologist who noted that he denied having any continued chest pain. She chose not to prescribe non-steroidal anti-inflammatory drugs (NSAIDs) such as ibuprofen. Mr McCullough was discharged home and died from a cardiac arrest the following day.
His widow brought an action against the Trust alleging that the cardiologist had negligently failed to discuss using NSAIDs as a possible treatment option. She alleged that if this had been offered to Mr McCullough, he would have taken a NSAID and would not have died.
The lower courts accepted the Defendant’s evidence that there was a responsible body of medical opinion which supported the consultant cardiologist’s approach not to suggest NSAID and found that the Defendant had therefore not been negligent. The Claimant appealed on the grounds that the court had applied the wrong legal test, and that following Montgomery the Bolam test was not relevant in determining what alternative treatments ought to be discussed with the patient.
The Decision
The Supreme Court refused the appeal. In a judgment given by Lord Hamblen and Lord Burrows (with whom the other Lords agreed) the Supreme Court held that the correct test for determining whether alternative treatment is reasonable and requires to be discussed with a patient is the professional practice test (i.e., the Bolam test).
Hamblen and Burrows judged that determining reasonable alternative treatments is a question of professional skill and judgment and ought not to be undermined by a legal test that overrides professional judgment. The Appellant’s proposed approach would constitute a significant and unwarranted extension of Montgomery. Further the decision was consistent with the Court of Appeal’s decision in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 in which (Hamblen LJ as he then was) held that when considering disclosure of risk, the question of which risks are associated with a medical procedure is a question of professional skill and judgment (to which Bolam applies), even though the question of whether a patient should be informed of a risk is a question of materiality (to which Montgomery applies).
It was further said by Hamblen and Burrows that their decision was consistent with medical professional expertise and guidance (as submitted by the BMA and GMC in their capacity as interveners), which supported the view that the discussion of treatment options turned on clinical judgment, learning and experience, and was therefore an exercise of professional skill and judgment. They highlighted that there would be an ‘unfortunate conflict in the doctor’s role’ if they were required to inform the patient of treatments they did not consider reasonable. Such an approach would lead to the patient being ‘bombarded’ with information, which would be unlikely to be in the patient’s best interest and could impair good decision making. If materiality, rather than Bolam was applied it could lead to uncertainty in the medical profession and render their task complex and confusing.
However, once a doctor, applying the professional practice test, has determined the range of reasonable alternative treatments, the patient should be informed of all of them.
Discussion
The full effect of this decision is such that a doctor will not be liable for failing to discuss a possible treatment option where there is a body of medical opinion that does not consider that treatment to be a reasonable alternative, even if there is a body of medical opinion that holds a polar opposite view (i.e. that the possible alternative treatment is a reasonable form of treatment).
The full force of Bolam therefore applies to claims involving an alleged failure to offer alternative treatment. If a defendant can find a doctor to support the contention that the treatment option was not reasonable that will generally suffice to defeat the claim. It will only be where the opinion is Bolitho illogical, or does not represent a respectable body of opinion that such a defence can be defeated. As the House of Lords stated in Bolitho,such an occurrence will be rare. Accordingly, there can be little doubt that this decision makes claims relating to failure to disclosure alternative treatments harder to prosecute and easier to defend.
The Supreme Court Montgomery at §82noted the distinction between two types of decision medical professionals make: “ [there is] …a fundamental distinction between, on the one hand, the doctor’s role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.” The fundamental distinction is between a decision which is one of professional judgment (to which Bolam applies) and one which is not (to which Montgomery applies). From this passage it can be inferred that the Supreme Court in Montgomery considered that “treatment options” was a Bolam question but that “possible alternatives” was a Montgomery question. Yet the Supreme Court in McCulloch has found that there that is no place for a Montgomery question when considering alternative treatments.
This apparent tension between Montgomery and McCulloch may however be explicable. Hamblen and Burrows in McCulloch sought to demonstrate that there is only a Bolam question in respect of alternative treatments by providing the following analogy. There may be ten possible treatments but if only four are reasonable a doctor cannot be expected to inform the patient of the six unreasonable treatment options. Self-evidently the question of whether a treatment option is reasonable is a question of professional judgment, ergo a Bolam question. The example demonstrates that the question of what is reasonable (the professional judgment question) comes after what is possible (the Montgomery question) in respect of alternative treatments, hence the application of Bolam. However, with disclosure of risk, the question of which risks may reasonably manifest (the Bolam question) comes before the question of whether those risks should be discussed with the patient (the Montgomery question), such that the ultimate issue is one of materiality and not professional judgment, hence the application of Montgomery.
[1] We very recently wrote about the Court of Appeal’s decision in Bilal v St George’s University Hospital. One of the questions that arose in that case was the extent to which a doctor is under a duty to inform patients about alternative possible treatments.
Clinical Negligence Law 