McCulloch & Ors v Forth Valley Health Board (Scotland) [2023] UKSC 26

The widow and family of Mr McCulloch sued for negligence after his death from cardiac tamponade, claiming his doctor should have advised him about NSAID treatment for pericarditis. The Supreme Court held that the professional practice test (Bolam/Hunter v Hanley) applies when determining what constitutes a reasonable alternative treatment requiring discussion with patients.

Facts

Mr Neil McCulloch died on 7 April 2012 from cardiac tamponade caused by idiopathic pericarditis and pericardial effusion. He had been admitted to Forth Valley Royal Hospital on multiple occasions in the preceding weeks. Dr Labinjoh, a consultant cardiologist, reviewed him on 3 April 2012 but did not prescribe NSAIDs as Mr McCulloch reported no pain and there was no clear diagnosis of pericarditis. The appellants (his widow and family) alleged Dr Labinjoh was negligent in failing to advise Mr McCulloch of NSAID treatment as an alternative option.

Medical Background

NSAIDs were commonly prescribed for pericarditis to relieve pain by reducing inflammation. Expert evidence was divided on whether NSAIDs should be prescribed to patients not in pain. Dr Bloomfield (respondent’s expert) considered there was no established benefit beyond pain relief and noted Mr McCulloch’s history of gastric upset as a contra-indication.

Issues

The principal issues were:

1. What legal test should apply to assess whether an alternative treatment is reasonable and requires discussion with the patient?
2. Did the lower courts err in applying the professional practice test from Hunter v Hanley and Bolam?

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Hamblen and Lord Burrows delivered the leading judgment.

The Professional Practice Test

The Court held that the professional practice test (Bolam/Hunter v Hanley) applies to determining what constitutes a reasonable alternative treatment. This is because identifying clinically appropriate treatments is an exercise of professional skill and judgment.

“The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.”

The Court explained that Montgomery established a duty to inform patients of material risks and reasonable alternatives, but determining what treatments are clinically reasonable remains a matter of professional judgment.

Two-Stage Analysis

Following Duce v Worcestershire Acute Hospitals NHS Trust, the Court confirmed a two-stage approach:

1. Identification of reasonable alternative treatments (applying the professional practice test)
2. The duty to inform the patient of those reasonable alternatives and their material risks (court-imposed standard)

“The identification of which treatments are reasonable alternatives (ie clinically appropriate) is as much a matter falling within medical expertise and professional judgment, and hence governed by the professional practice test, as the identification of risks associated with any treatment.”

Rejection of Appellants’ Argument

The Court rejected the argument that accepting the professional practice test would hollow out Montgomery’s protection of patient autonomy, stating this would constitute an unwarranted extension of that decision.

Implications

This judgment clarifies the scope of Montgomery v Lanarkshire Health Board by confirming that while patients have a right to be informed of reasonable treatment options, what constitutes a ‘reasonable’ option is determined by professional medical standards rather than by the court independently. This prevents uncertainty for medical practitioners and avoids requiring doctors to advise on treatments they consider clinically inappropriate. The decision maintains the distinction between the doctor’s clinical role (subject to Bolam) and advisory role (subject to Montgomery) while preventing an unworkable expansion of disclosure obligations.

Verdict: Appeal dismissed. The Supreme Court held that the professional practice test (Bolam/Hunter v Hanley) applies to determining what constitutes a reasonable alternative treatment. Dr Labinjoh was not in breach of duty as her decision not to prescribe NSAIDs was supported by a responsible body of medical opinion.

Source: McCulloch & Ors v Forth Valley Health Board (Scotland) [2023] UKSC 26