Related Sector: Health & Social Care
Following the highly publicised Supreme Court case of McCulloch and others v Forth Valley Health Board  UKSC 26, Bond Solon trainer and subject matter expert, Max Duddles discusses the legal principles that medical practitioners should be aware of when preparing treatment options for patients.
How far does this case go in clarifying the residual tension regarding informed consent between Montgomery and Bolam? Read on to find out.
In Montgomery v Lanarkshire Health Board (2015) UKSC 11, the Supreme Court made two significant findings:
- That “the 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”.
- That the test of materiality is “whether in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should be aware that the particular patient would be likely to attach significance to it”.
This decision reversed part of the decision in Bolam v Friern Hospital Management Committee (1957) 1 WLR 583 - finding that a medical professional acting in accordance with a practice accepted as proper by a responsible body of medical personnel skilled in that art is not a sufficient defence to medical negligence.
Doctors and other clinicians, however, remained uncertain about what they should and should not be discussing with patients, and in what depth.
Backlash following Montgomery (2015)
The Court of Appeal in Duce v Worcestershire Acute Hospitals NHS Trust (2018) EWCA Civ 1307, endeavoured to give guidance as to the extent of the obligations imposed by the Montgomery case. It came down to two simple considerations:
1) What risks associated with an operation were or should have been known to the medical professional, which is a matter falling within the expertise of medical professionals and therefore subject to the Bolam test.
2) Whether the patient should have been told about such risks by reference to whether they were material. This was a matter for the Court to determine and falls outside of the scope of Bolam.
This test was endorsed the following year in Hazel Kennedy v Dr Jonathan Frankel (2019) EWHC 106 (QB).
Meanwhile, the real-world effects of the decision in Montgomery were extreme. Damages settlements in cases against the NHS, where a failure to provide information and obtain informed consent was at the heart of the claim, rose from £28 million per annum on 2015 to £62 million per annum in 2019 (“The effect of the Montgomery judgment on settled claims against the NHS due to failure to inform before giving consent to treatment”, March 2020 – DS Wald, JP Bestwich, P Kelly – Quarterly Journal of Medicine).
This, more than doubling of the number of successful settled claims arose because, put simply, such cases were now easier for the patient to win. As a result, trusts and professional bodies issued detailed guidance to clinicians, which resulted in many professionals taking a “belt and braces” approach of trying to inform the patient of every conceivable risk. However, they still feared that the one time they forgot to mention one specific risk might come back to bite them.
2023 medical negligence cases
The last few months have seen the legal landscape shift again in two new cases.
Bilal and Malik v St George’s University Hospital NHS Trust (2023) EWCA Civ 605
This was an appeal by the children of Mr Malik (who had died due to complications caused by his condition) that his surgeon, Mr Minhas, had been negligent in failing to obtain properly informed consent to spinal surgery. It was agreed that the surgery itself, though properly performed, had led to serious neurological injury. The claim revolved around whether Mr Malik should have been informed of alternative treatments and, if this had happened, if he would have chosen one of them instead of the surgery.
At the heart of the case was a disagreement regarding the information Mr Malik had given to Mr Minhas. Mr Minhas’ notes showed that Mr Malik complained of intercostal pain, something he, and his family, denied. It was the hospital’s case that this complaint led Mr Minhas to conclude that there was no alternative to surgery, and he therefore advised Mr Malik to have it.
It was accepted by the Hospital that Mr Minhas had not asked how long the intercostal pain had been present. Mr Minhas’ own notes recorded no such question. In the High Court, the Hospital successfully argued that Mr Minhas had no need to make such an enquiry as the presence and intensity of the intercostal pain were sufficient to make surgery the only viable option.
On appeal, the case advanced by Mr Malik’s family changed to arguing that, post-Montgomery, it was part of Mr Minhas’ duty to enquire as to the duration of pain and, without that knowledge, Mr Malik was not properly advised as to the pros and cons of the surgery. It was also argued that Mr Minhas may have been able to formulate some alternative treatments had he asked the question.
One of the rules in cases such as these is that parties should not be able to change their argument and, essentially “have another go”. The Hospital contented that this was exactly what was going on and the Court of Appeal Judges agreed with them, essentially resulting in the appeal being dismissed.
The main “takeaway” from this case is found in paragraph 66 of the Court of Appeal judgment.
“…it is for the doctor to assess what the reasonable alternatives are; it is for the court to judge the materiality of the risk inherent in the proposed treatment, applying the test of whether a reasonable person in the patient’s position would be likely to attach significance to the risk.”
McCulloch and others v Forth Valley Health Board (2023) UKSC 26
July 2023 saw, to quote President of the Supreme Court, Lord Read, “one of the most important medical negligence cases in a long time” settle any remaining arguments as to where Bolam and Montgomery sit in the legal landscape.
This claim was brought by the deceased Mr McCulloch’s family. The main issue in dispute was whether a cardiologist attending on Mr McCulloch the day before his death had failed in his duty (as defined by Montgomery) by not discussing the use of non-steroidal and anti-inflammatory drugs. The doctor in question had concluded that such drugs were not a viable treatment option given the patient’s presentation.
The argument came down to what should appear on the “menu” of treatment options made available to the patient. Mr McCulloch’s family argued that it was not for the clinician to “filter” the options into viable and non-viable, as to do so would be to ignore Montgomery and move back towards Bolam.
The Health Board argued that the only person who could properly assess the clinically appropriate treatment options was the medical professional attending on Mr McCulloch.
The Court found in favour of the Health Board, holding that, although the medical professional must still obtain “informed consent”, it was that professional’s responsibility to identify the reasonable alternative treatments and prepare a “menu” of option for the patient accordingly.
In future disputes of this nature, Bolam’s “professional practice” test should be applied to the medical professional’s “menu” of reasonable alternatives. This means that if a reasonable body of medical opinion agreed with it, then the claim would fail. The role of the court is to determine any evidential disputes, such as whether, as in Balil and Malik v St George’s, the medical professional has carried out a rigorous enough examination to enable them to identify all the reasonable alternatives.
It follows that, as per Montgomery, there still must be a thorough, and thoroughly documented, discussion between the medical professional and the patient as part of the process of obtaining informed consent. However, as per Bolam, the selection of treatment options lies with the medical professional, who is protected, if a reasonable body of medical opinion agrees with their selection.
Author: Max Duddles
This article was first published on 22 August 2023