Capital Law assisted the British Medical Association (“BMA”) in McCulloch v Forth Valley Health Board.

Capital Law assisted the British Medical Association (“BMA”) in McCulloch v Forth Valley Health Board.

British Medical Association Landmark Results

Capital Law thrilled to assist the British Medical Association (“BMA”) in McCulloch v Forth Valley Health Board [2023] UKSC 26, a recent Supreme Court case. Capital Law lawyers Tod Davies, Tom Jones, and Ellis Cumming supported the BMA throughout and are thrilled with this milestone decision.

This case involves balancing a patient’s right to informed medical treatment choice with a doctor’s obligation to provide alternative treatment alternatives.

The case facts
Mr. McCulloch was brought to Forth Valley Royal Hospital in March 2012 with chest symptoms and other issues. Dr. Labinjoh, a consultant cardiologist, determined that his presentation did not fit the standard diagnosis of pericarditis (an inflammation close to the heart). While he received treatment, the doctor decided that anti-inflammatory medication would not be appropriate because he did not show any further symptoms of chest pain or receive a diagnosis. After being sent home, Mr. McCulloch died of a cardiac arrest the next day.

Mr. McCulloch’s widow says Dr. Labinjoh breached her duty of care by not suggesting anti-inflammatories. If he had known about this alternate treatment, he may not have died.

The arguments
The question in McCulloch was whether the doctor was negligent. The legal test for determining a doctor’s negligence is whether the doctor acted in accordance with proper practice as defined by a professional body of medical opinion (known as the Bolam test). One caveat to that was established 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, as well as any reasonable alternative treatments. However, it did not specify how or who decides what alternative treatments are’reasonable’ or not.

The question in this case was how a doctor determines if a treatment other than the one they recommend is “reasonable” and should be discussed with the patient.

Mrs. McCulloch and others argued that a patient’s circumstances, goals, and values should be considered when determining what treatments are reasonable. They also argued that the courts, not medical opinion, should determine reasonable alternative treatments. The Respondent (the hospital) argued that the assessment should continue to use the Bolam test (based on medical opinion) as required by Montgomery.

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

The Court’s decision
The Supreme Court unanimously agreed that determining whether a treatment is a reasonable alternative requires professional skill and judgment, as determined by a professional body of medical opinion (the Bolam test).

The Court was concerned about the Appellants’ arguments due to 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 inappropriate treatment options, bombarding patients with information and multiple treatment options, and avoiding legal uncertainty for doctors.

Because of this, the Court rejected the Appellants’ arguments and determined that what they were requesting would be an unjustified extension of the Montgomery-era law.

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

The BMA and Capital Law applaud this result, which eases doctors’ daily workloads.

For more information on Capital Law public law services, contact Tod Davies at Capital Law,

For detailed information, as well as the picture copyright, please see the law firm’s original article here: Landmark Result for The British Medical Association.

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