Reaffirming the Professional Practice Test: Insights from McCulloch & Ors v Forth Valley Health Board [2023] UKSC 26

Introduction

The case of McCulloch & Ors v Forth Valley Health Board (Scotland) ([2023] UKSC 26) presents a significant examination of the legal standards applied to medical negligence, specifically relating to the duty of care doctors owe to their patients in informing them of reasonable alternative treatments. This commentary delves into the background of the case, the court's judgment, the legal reasoning applied, and the broader implications for medical negligence law.

Summary of the Judgment

The appellant family of Mr. Neil McCulloch brought a negligence claim against Forth Valley Health Board, alleging that the consultant cardiologist, Dr. Labinjoh, failed to inform Mr. McCulloch of an alternative treatment option—prescription of non-steroidal anti-inflammatory drugs (NSAIDs)—which they contended could have prevented his death from cardiac tamponade following discharge from hospital.

The key legal issue centered on whether the failure to inform Mr. McCulloch of the NSAID treatment constituted a breach of duty under the professional practice test established in cases like Bolam v Friern Hospital Management Committee and Hunter v Hanley.

The United Kingdom Supreme Court upheld the decisions of the lower courts, affirming that the professional practice test remains the appropriate legal standard for determining whether a doctor's failure to inform about a reasonable alternative treatment amounts to negligence. The court dismissed the appellants' argument for expanding the duty of care beyond the established professional standards.

Analysis

Precedents Cited

The judgment extensively references landmark cases that have shaped the understanding of medical negligence:

Bolam v Friern Hospital Management Committee [1957]: Established the "professional practice test," determining negligence based on whether a doctor's actions align with a responsible body of medical opinion.
Hunter v Hanley [1955]: Reinforced the Bolam test within Scottish law, emphasizing the role of professional opinion in medical negligence cases.
Bolitho v City and Hackney Health Authority [1998]: Introduced the notion that a court may reject a professional opinion if it lacks logical support, adding a layer of judicial scrutiny to the Bolam test.
Montgomery v Lanarkshire Health Board [2015]: Marked a significant shift by emphasizing patient autonomy and the duty of doctors to inform patients of material risks and reasonable alternatives, thereby slightly expanding the duty of care beyond strict professional judgment.
Duce v Worcestershire Acute Hospitals NHS Trust [2018]: Applied the Montgomery principles to delineate the two-stage test for duty of care in informing patients about risks and reasonable alternatives.

Legal Reasoning

The Supreme Court's reasoning centered on maintaining the balance between respecting medical professional judgment and upholding patient autonomy as established in Montgomery. The court concluded that:

The determination of what constitutes a reasonable alternative treatment is inherently an exercise of professional skill and judgment, falling under the professional practice test as per Bolam and Hunter.
Mandating courts to define reasonable alternatives independently would undermine medical expertise, create uncertainty in medical practice, and potentially lead to defensive medicine.
The duty to inform, as expanded in Montgomery, does not extend to requiring doctors to disclose alternative treatments they do not consider reasonable, provided such decisions are supported by a responsible body of medical opinion.

Thus, the court affirmed that lower courts correctly applied the professional practice test in assessing Dr. Labinjoh's actions.

Impact

This judgment reinforces the primacy of professional discretion in medical decision-making while acknowledging the importance of patient autonomy. Key impacts include:

Legal Clarity: Reinforces the existing framework for assessing medical negligence, avoiding ambiguity in the duty of care regarding alternative treatments.
Medical Practice: Protects doctors from liability when they make informed decisions about reasonable treatment options, provided these decisions align with professional standards.
Patient Rights: Continues to uphold the principles of Montgomery by ensuring patients are informed of material risks and reasonable alternatives, but within the boundaries of professional judgment.
Future Litigation: Limits the scope for expanding negligence claims beyond established professional standards, potentially reducing the incidence of litigation based on disagreements over professional medical judgments.

Complex Concepts Simplified

Professional Practice Test

The professional practice test assesses whether a doctor's actions align with standards accepted by a responsible body of medical professionals. If a doctor's conduct is supported by such a body, it is generally deemed not negligent, even if there is dissenting medical opinion.

Material Risk

A material risk is a risk that a reasonable person in the patient's position would likely consider significant or that the doctor should reasonably be aware the patient would consider significant. Disclosure of material risks is essential for informed consent.

Duty of Care

In medical negligence, duty of care refers to the obligation of the healthcare professional to adhere to a standard of reasonable care while performing any acts that could foreseeably harm patients.

Two-Stage Test (Duce)

The two-stage test involves:

Identifying what risks should be known to the medical professional.
Determining whether these risks are material and should be communicated to the patient.

Conclusion

The Supreme Court's decision in McCulloch & Ors v Forth Valley Health Board reaffirms the enduring relevance of the professional practice test in evaluating medical negligence claims related to the disclosure of reasonable alternative treatments. By upholding the judgments of the lower courts, the Supreme Court has cemented the balance between medical expertise and patient autonomy, ensuring that doctors can exercise professional judgment without undue legal interference, provided their decisions align with accepted medical standards. This case underscores the importance of collaborative dialogue between patients and healthcare providers, within the bounds of professional discretion, to uphold both ethical and legal standards in medical practice.