McCulloch and others v Forth Valley Health Board (Scotland)

A doctor must identify reasonable alternative treatments by exercising clinical judgment in accordance with the professional practice test. An assessment supported by a responsible body of medical opinion ordinarily satisfies that test, subject to the court’s power to reject an opinion incapable of withstanding logical analysis.

Once the reasonable alternatives have been identified, the doctor must inform the patient of all of them, together with their advantages, disadvantages and material risks. The doctor need not discuss every possible treatment, including one reasonably assessed as clinically inappropriate. This approach preserves the distinction between professional assessment and the patient’s autonomous choice among clinically reasonable options.

The widow and other relatives of Neil McCulloch sought damages from Forth Valley Health Board for his death from cardiac tamponade. They alleged that a consultant cardiologist should have advised him that a non-steroidal anti-inflammatory drug was an alternative treatment for possible pericarditis.

The Lord Ordinary dismissed that aspect of the claim in [2020] CSOH 40. He found that the cardiologist did not regard the treatment as appropriate and that her judgment was supported by a responsible body of medical opinion. The Inner House upheld his decision in [2021] CSIH 21.

The central issue was whether the professional practice test governed the identification of reasonable alternative treatments, or whether the court should determine reasonableness by reference to the individual patient’s circumstances, objectives and values.

1. The appeal was dismissed. Lord Hamblen and Lord Burrows delivered the unanimous judgment, with which Lord Reed, Lord Hodge and Lord Kitchin agreed.

2. The professional practice test derived from Hunter v Hanley and Bolam determines which alternative treatments are reasonable, meaning clinically appropriate or suitable. The identification of those treatments is an exercise of professional skill and judgment. A doctor satisfies the standard where the assessment is supported by a responsible body of medical opinion, subject to the qualification in Bolitho that an opinion may exceptionally be rejected if it cannot withstand logical analysis.

3. The cardiologist reasonably assessed NSAIDs as inappropriate because the patient had no relevant pain and there was no clear diagnosis of pericarditis. That assessment was supported by a responsible body of medical opinion and was neither unreasonable nor illogical. The proposed medication was therefore not a reasonable alternative which she had to discuss.

4. This conclusion applies, rather than restricts, Montgomery [2015] UKSC 11. The doctor’s clinical role is to identify reasonable alternatives by professional judgment. The advisory role then requires the doctor to inform the patient of every reasonable alternative, including no treatment where clinically reasonable, and to explain the respective advantages, disadvantages and material risks. The patient then chooses among the reasonable options.

5. The court rejected an additional patient-specific filter after the reasonable alternatives have been identified. Unless the patient specifically requests more or less information, all such alternatives must be disclosed. It also rejected a duty to mention a treatment which the doctor reasonably considers clinically inappropriate merely because another responsible body of medical opinion might regard it as reasonable.

6. The alternative approach would require discussion of clinically inappropriate options, risk overwhelming patients with information, create uncertainty and encourage defensive medicine. As there was no breach of duty, the questions concerning causation did not arise and the court expressed no view on them.

1. United Kingdom Supreme Court: In [2023] UKSC 26, unanimously dismissed the appeal and upheld the conclusion that the professional practice test governed the identification of reasonable alternative treatments.
2. Inner House of the Court of Session: In [2021] CSIH 21, 2021 SLT 695, upheld the Lord Ordinary’s decision that the cardiologist was not negligent in failing to discuss NSAIDs as an alternative treatment.
3. Outer House of the Court of Session: In [2020] CSOH 40, the Lord Ordinary held that the cardiologist’s decision was supported by responsible medical opinion and that no reasonable alternative treatment requiring discussion had been established.