This article is published as part of Capsticks’ Insurance Review 2023.

Informed consent

Following the Supreme Court decision in Montgomery (2015) a doctor is “under a duty to take reasonable care to ensure the patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments…”

What must a doctor tell patients about reasonable alternative treatments - when a particular treatment is not discussed?

In McCulloch and others (Appellants) v Forth Valley Health Board (Respondents) [2023] UKSC 26, the Supreme Court considered what is a reasonable alternative.

The appellant’s late husband was admitted to hospital complaining of chest pains, nausea and vomiting. Whilst in hospital his condition improved. When seen by Dr Labinjoh (consultant cardiologist) he looked much better and denied having any chest pain. Dr Labinjoh saw no reason to prescribe any additional medical treatment. In particular she did not regard it as appropriate to prescribe NSAIDs because Mr McCulloch was not in pain at the time and there was no clear diagnosis of pericarditis. Three days later he was discharged home, but the next day he suffered a fatal cardiac arrest.

It was alleged that Dr Labinjoh was in breach of her duty of care by failing to inform the deceased that NSAIDs were a possible treatment option for him. If he had been given that advice, he would have taken the NSAIDs and would not have died.

The Supreme Court determined that Dr Labinjoh was not obliged to inform the deceased that NSAIDs were a treatment option as her view, that these were not a reasonable treatment option in the circumstances, was supported by a responsible body of medical opinion (the ‘Bolam’ test).

What must a doctor tell patients about reasonable alternative treatments - when the only treatment is the treatment recommended?

In Bilal and Malik v St George’s University Hospitals NHS Trust (2023) the Court of Appeal was asked to consider the interplay between the decisions in Bolam (1957) and Montgomery.

The late Mr Malik underwent spinal surgery to relieve compression of his left T10 nerve root. The claim was based solely on the issue of informed consent. Sadly Mr Malik suffered serious (non-negligent) neurological injury. There was a factual dispute regarding the type and duration of Mr Malik’s pre-operative pain and whether the surgeon should have discussed alternatives other than surgery, which he recommended. It was further alleged that had the surgeon discussed alternatives, Mr Malik would have declined surgery.

The trial judge held that the surgeon’s view that there was no other reasonably available treatment to address Mr Malik’s pain, was not negligent. As a result, he was under no obligation to advise about treatment he did not consider appropriate.

The Court of Appeal confirmed that the Supreme Court in Montgomery draws a distinction between two aspects of a clinician’s role. Bolam is applicable to the assessment of treatment options (i.e. they are for the doctor to assess). Montgomery is relevant to assessment of what risks should be explained to the patient because they are material to them (and for the court to decide).

Comment

The decisions are a welcome confirmation of how Montgomery should be applied in practice and demonstrate that there is still a role for clinical judgment in the assessment of treatment options.

However, a doctor cannot simply inform a patient about the treatment option(s) the doctor prefers. The information given (or not) must be ‘Bolam compliant’ i.e. supported by a responsible body of medical opinion.

For the consent process to be ‘Montgomery compliant’ the doctor must also consider the material risks of any proposed treatment and that assessment should be based on risks that are material to the patient. It remains essential that the discussion of risk issues and alternative treatments is fully documented.

Article 2 inquest not required simply because an individual is placed in a care or nursing home or a hospital

In R (Maguire) v HM Senior Coroner for Blackpool and Fylde [2023] UKSC 20, the Supreme Court upheld the coroner’s decision that an expanded conclusion, as required by the Article 2 of the European Convention on Human Rights, was not required in the case of Jacqueline Maguire, (a care home resident) who sadly died in hospital in 2017. Jacqueline had been under a deprivation of liberty safeguards standard authorisation. The Court determined that neither the systems duty nor the operational duty on the state mandating an Article 2 inquest had been engaged. Key findings included:

Systems duty

• This operates at a high level in the context of healthcare services, is relatively easily satisfied, and only in rare cases will it be found to have been breached.
• Individual lapses (even those which are negligent) do not generally constitute a failure of that duty.

Operational duty

• Placing an individual in a care or nursing home or hospital does not mean that the state assumes responsibility for all aspects of their physical health nor does it guarantee the adequacy of healthcare.
• It applies in a graduated way depending on the level of risk.

Comment

This decision is helpful confirmation of the high threshold adopted by the courts for there to have been an arguable breach of Article 2 in a healthcare setting. For further information read our insight on the case. It has been reported in the press that Jacqueline’s mother intends appealing to the European Court of Human Rights.

Insurance Review 2023

This article is part of Capsticks' Insurance Review 2023.

Read the other articles featured in this publication below:

• Spotlight on three appeal court decisions
• Appeal decisions pending
• Fundamental Dishonesty – ‘good days and bad days’ defence rejected
• Two important changes to the fixed recoverable costs regime
• Defendants’ ability to recover their costs from claimants extended
• Pre inquest admissions fatal to defendant’s case
• Personal Injury Discount Rate (PIDR) review update

Get in touch

Aiming to be the firm of choice for medical malpractice and general liability insurers, we advise and support on all aspect of claims and inquests.

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Ed Mellor or Sarah Bryant or Cheryl Blundell.