Landmark Result for The British Medical Association

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The facts of the case

Mr McCulloch was admitted to the Forth Valley Royal Hospital in March 2012 with chest pains and some other difficulties. Dr. Labinjoh, a consultant cardiologist, made an assessment that his presentation did not fit with the standard diagnosis of pericarditis (an inflammation close to the heart) and whilst he did receive treatment, the doctor concluded that prescribing anti-inflammatory medication would not be suitable as he did not display further symptoms of chest pain or receive a definite diagnosis of pericarditis. Mr McCulloch was discharged home, and a day later, he suffered a cardiac arrest from which he died.

The widow of Mr McCulloch claims that Dr. Labinjoh neglected her duty of care by not informing Mr McCulloch about the possibility of using anti-inflammatories as an alternative treatment. It is alleged that had he been made aware of this alternative treatment option, he would have taken that option and would not have died.

The arguments

The question in McCulloch was whether the doctor had been negligent. The legal test for establishing a doctor’s negligence is whether the doctor had acted in accordance with proper practice as set out by a professional body of medical opinion (called the Bolam test). One caveat to that was set out by the Supreme Court in 2015 (in the case of Montgomery) which ruled that, when a doctor is discussing possible treatments with patients in order to obtain their informed consent, the doctor must ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative treatments. However, it did not spell out how to determine what alternative treatments should be considered ‘reasonable’ or not, or who decides that.

The crux of the matter in this case consequently revolved around how a doctor is to decide if an alternative treatment, other than the one they recommend, should be considered “reasonable” and discussed with the patient.

The Appellants (Mrs McCulloch and others) argued that the assessment of what treatments are reasonable should not be confined to the doctor’s opinion alone and that a patient’s circumstances, goals, and values should be part of the discussion. They also argued that, if it came to it, it was for the courts to ultimately determine what the reasonable alternative treatments are, instead of a body of medical opinion. The Respondent (the hospital) argued for the status quo, that the assessment should be based on the current Bolam test (based on medical opinion), as qualified by the obligation set out in Montgomery.

Capital Law intervened in the proceedings on the BMA’s behalf, alongside the General Medical Council, to make written representations based on the BMA’s understanding of the current body of medical expertise and guidance, how doctors currently understand the rules in Bolam and Montgomery, as well as the (likely undesirable) effect this decision could have on medical practitioners should it be allowed.

The Court’s decision

The Supreme Court unanimously agreed that whether a treatment is considered a reasonable alternative should be an exercise of professional skill and judgment, as set out by a professional body of medical opinion (the Bolam test).

The Court had concerns over the Appellants’ arguments on the basis of their inconsistency with established legal tests (Montgomery), the need for consistency with medical expertise and guidance (which directly relates to the BMA’s intervention), the need to avoid obliging doctors to discuss treatment options which they considered inappropriate, the need to avoid bombarding patients with information and multiple treatment options, and avoiding uncertainty in the law for doctors.

As a result, the Court rejected the Appellants’ submissions, and that what the Appellants were asking for was an unwarranted extension of the law that was laid down in Montgomery.

The Court found that, because there was no clear diagnosis of pericarditis, and that this was supported by a responsible body of medical opinion, Dr. Labinjoh had not been negligent in her view that prescribing anti-inflammatories for Mr McCulloch was not a reasonable treatment option and was therefore not negligent by not informing Mr McCulloch of this option.

Both the BMA and Capital Law are delighted with this result, which eases the burden on doctors in their day-to-day activities.

To find out more about our public law services please contact Tod Davies at Capital Law,