Invitation to treat? Supreme Court clarifies the professional practice test

In McCulloch and others (Appellants) v Forth Valley Health Board (Respondent) (Scotland) [2023] UKSC 26, the Supreme Court considered which legal test should be applied to the assessment of whether an alternative treatment was reasonable and should be discussed with a patient.

The legal test for establishing negligence by a doctor in diagnosis or treatment is whether the doctor has acted in accordance with a practice accepted as proper by a responsible body of medical opinion. This will be referred to for shorthand as the “professional practice test”, as set down by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (“Bolam”). The test is consistent with Hunter v Hanley 1955 SC 200 (“Hunter v Hanley”). A qualification to this test is found in Bolitho v City and Hackney Health Authority [1998] AC 232 (“Bolitho”): a court may, on rare occasions, reject the professional opinion if it is incapable of withstanding logical analysis.

The appeal considered whether the Inner House and Lord Ordinary erred in law in holding that a doctor’s decision on whether an alternative treatment was reasonable and required to be discussed with the patient should be determined by the application of the professional practice test. The court therefore needed to consider the following: does a doctor fall below the required standard of reasonable care by failing to make a patient aware of an alternative treatment?

The background

Mr McCulloch, age 39, was admitted to the Forth Valley Royal Hospital on 23^rd March 2012; he was presenting with severe pleuritic chest pains, nausea, and vomiting. Dr Labinjoh, a Consultant Cardiologist, was asked to review an echocardiogram that had been performed on Mr McCulloch. In her opinion, his presenting condition did not fit with that of pericarditis (inflammation of the heart lining). His condition subsequently improved, and he was discharged home on antibiotics on 30^th March. The plan was for Mr McCulloch to be reviewed within four weeks, with a repeat echocardiogram and chest x-ray to be arranged in advance of the consultation.

The immediate discharge letter recorded the diagnosis as acute viral myo/pericarditis with secondary bacterial lower respiratory tract infection. Mr McCulloch’s chest pains returned two days later. He was readmitted to the hospital by ambulance and given intravenous fluids and antibiotics. He complained of central pleuritic chest pain, similar to the previous admission. On 2^nd April, Mr McCulloch was transferred from Accident and Emergency to the Acute Admissions Unit, whereby a repeat echocardiogram was instructed. On the same day, the nursing entry recorded “nil further chest pain”.

Dr Labinjoh’s second involvement was on 3^rd. April. The Lord Ordinary accepted her evidence that she was not asked to review Mr McCulloch but to assist with the interpretation of his third echocardiogram. She stated that she was not responsible for his overall care and had been unaware that he had been discharged and readmitted, as this had not been mentioned to her and his medical records had a continuous appearance. Dr Labinjoh also did not consider that the third echocardiogram which she was reviewing differed from the first two in a way that would give rise to any concerns. When she saw Mr McCulloch, he appeared to have improved, and he denied having any chest pain, palpitations, breathlessness on exertion or when lying flat. He had been able to make eye contact and engage in conversation. Dr Labinjoh therefore did not consider that  Mr McCulloch needed any additional treatment. Moreover, she did not consider it appropriate in her professional judgement to prescribe non-steroidal anti-inflammatory drugs (“NSAIDs”), such as ibuprofen, because Mr McCulloch was not in pain and there was no clear diagnosis of pericarditis. On 6^th April he was discharged home on antibiotics. Sadly, on 7^th April, Mr McCulloch died at home, having suffered a cardiac arrest at around 2pm.

The proceedings

The issues arose in the context of a claim brought by McCulloch’s widow and other family members. They brought an action against Forth Valley Health Board, for damages for negligently causing his death. Specifically, they alleged that (i) on 3^rd April 2012, Dr Labinjoh should have advised Mr McCulloch of the option of treatment with an NSAID (such as ibuprofen) for pericarditis, (ii) had such advice been given, Mr McCulloch would have taken the NSAID, (iii) had he taken the NSAID, he would not have died. The expert evidence indicated that although some doctors would have prescribed NSAIDs to Mr McCulloch, there was also a responsible body of medical opinion that would have supported Dr Labinjoh’s actions.

The Inner House and the Lord Ordinary held that the professional practice test applied. The Appellants argued that this was wrong in law and submitted that whether the identified treatments were reasonable depended on the circumstances, objectives, and values of the individual patient and could not be judged simply by the view of the doctor offering the treatment even though that view was supported by a responsible body of medical opinion.

The key issue on appeal was what legal test should be applied to the assessment as to whether an alternative treatment was reasonable and required to be discussed with the patient. Specifically, did the doctor in this case fall below the required standard of reasonable care by failing to make the 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?

Outcome on Appeal

The Court unanimously dismissed the appeal, and held that the correct legal test was the professional practice test as applied by the lower courts (and as set out in Hunter v Hanley and Bolam).

The key components of the Judgment are as follows:

• Dr Labinjoh had taken the view that prescribing NSAID’s was not a reasonable alternative treatment because Mr McCulloch had no relevant pain, and there was no clear diagnosis of pericarditis. As that view was supported by a responsible body of medical opinion, there was no breach of the duty of care to inform required by Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015].
• The identification of reasonable alternative treatments (i.e., clinically appropriate treatments) should be treated in the same way as the identification of risk in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307, [2018] PIQR P18.
• Once the reasonable alternative treatments had been identified – applying the professional practice test – the doctor was then under a duty of care to inform the patient of those reasonable alternative treatments and of the material risks of those alternative treatments.
• An unfortunate conflict would arise if the Court were to reject the professional practice test in determining reasonable alternative treatments: the law would require a doctor to inform a patient about an alternative medical treatment which the doctor exercising professional skill and judgement, and supported by a responsible body of medical opinion, would not consider to be reasonable treatment.
• In view of the Court’s conclusion that Dr Labinjoh was not in breach of a duty of care in not informing the patient about possible alternative treatment by NSAIDs, the questions on causation did not arise.

How much is too much?

The judgment also provides a warning against overloading patients with too many options. The court held that a doctor’s duty was not fulfilled by “bombarding” the patient with every possible treatment for every possible diagnosis. If it obstructed patient understanding, providing too much information might be as unhelpful as providing too little.

Two possible qualifications of the application of the professional practice test in the context of reasonable alternative treatments

Paragraphs [79]-[81] of the judgment are worth especial reflection. There were two qualifications to the professional practice test that were raised in submissions, although the second was in fact withdrawn by the respondent in oral submissions. They are as follows:

• The first qualification, raised by the British Medical Association, was whether there should be an additional filter turning on whether it was reasonable for a doctor to inform the patient of all reasonable alternative treatments. The Court held that once the doctor, applying the professional practice test, had a range of reasonable alternative treatments, the patient should be informed of all of them. It would cause uncertainty if the doctor had to qualify which reasonable alternative treatments the patient should be informed about by asking which of the reasonable alternatives it was reasonable for that particular patient to be informed about. A patient might request more or lesser information, but this point concerned the default position, i.e. circumstances where the patient does not make any such requests.
• The second possible qualification was whether the doctor was under a duty of care to inform the patient of a possible alternative treatment that, applying the professional practice test, he or she did not regard as a reasonable alternative treatment but where the doctor was aware (or perhaps ought to be aware) that there was a responsible body of medical opinion that did regard that alternative treatment as reasonable. The Court rejected this qualification and held that provided the doctor’s assessment of what was and what was not a reasonable alternative treatment was supported by a responsible body of medical opinion, the doctor would not be liable for a failure to inform a patient of other possible alternative treatments.

Conclusion

This appeal was a tragic case indeed, but it provides welcome clarification on the position on alternative treatments. The qualifications at [79]-[81] are somewhat confusing at first blush. However, it is clear from this decision that the professional practice test has prevailed. The case also provides a useful refresher on core principles underpinning the medico-legal field. So – if you are a clinical negligence lawyer, should you find some quiet time to sit and have a read of the judgment in full? I would encourage practitioners to sit and read it twice.