McCulloch v Forth Valley Health Board

Whether an alternative treatment is reasonable, so that a doctor must tell the patient about it under Montgomery, is decided by the professional practice test, not by what the patient would want to know.

Citation
[2023] UKSC 26
Court
Supreme Court
Year
2023
Subject
Medical Law and Ethics
Topic
Clinical negligence, informed consent and wrongful birth

Facts

Mr McCulloch was admitted to hospital with chest pain, and was seen by a cardiologist, who did not consider that it was appropriate to prescribe non steroidal anti inflammatory drugs, because she did not think that he had pericarditis, and so did not discuss them with him. He later died of a cardiac arrest. His family claimed that she had been negligent in failing to tell him about the option of anti inflammatory drugs, as a reasonable alternative treatment, under the duty set out in Montgomery.

Legal principle

The Supreme Court dismissed the appeal. Lord Hamblen and Lord Burrows said that the question of what are the reasonable alternative treatments, which must be disclosed to the patient under Montgomery, is to be determined by applying the professional practice test in Bolam, so that a doctor is not negligent in failing to inform the patient of an alternative treatment if a responsible body of medical opinion would not regard it as reasonable. Once the reasonable alternatives have been identified, the doctor must inform the patient of them and of their material risks, applying the patient centred test in Montgomery. The cardiologist had not been negligent.

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