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.

Capital Law is delighted to have supported the British Medical Association (“BMA”) in the landmark case of McCulloch v Forth Valley Health Board [2023] UKSC 26, recently heard by the Supreme Court. Legal experts from Capital Law, including Tod Davies, Tom Jones, and Ellis Cumming, provided unwavering assistance to the BMA throughout this significant legal battle, and they are elated by the outcome.

This case centered on the delicate balance between a patient’s right to make informed choices about their medical treatment and a doctor’s duty to present viable alternative treatment options.

The Case in Brief
In March 2012, Mr. McCulloch was admitted to Forth Valley Royal Hospital with chest symptoms and other medical issues. Dr. Labinjoh, a consultant cardiologist, determined that Mr. McCulloch’s symptoms did not align with the standard diagnosis of pericarditis (an inflammation close to the heart). 

Consequently, the doctor opted not to prescribe anti-inflammatory medication as Mr. McCulloch showed no further chest pain symptoms and lacked a clear diagnosis. Tragically, Mr. McCulloch passed away from a cardiac arrest the following day after he was sent home.

Mrs. McCulloch, the widow of the deceased, alleged that Dr. Labinjoh breached her duty of care by failing to suggest anti-inflammatory treatment. She contended that had Mr. McCulloch been aware of this alternative treatment, he might have survived.

The Legal Arguments
At the heart of the McCulloch case was the question of medical negligence. The legal test for assessing a doctor’s negligence, known as the Bolam test, relies on whether the doctor’s actions align with accepted medical practices and opinions. However, a significant caveat was introduced by the Supreme Court in 2015 in the Montgomery case. This ruling stated that when a doctor discusses potential treatments with a patient to obtain their informed consent, the doctor must ensure that the patient is fully aware of any material risks associated with the recommended treatment, as well as any reasonable alternative treatments. However, the Montgomery ruling did not specify how or by whom the determination of “reasonable” alternative treatments should be made.

In McCulloch, the central question was how a doctor should determine whether a treatment other than their recommended option is “reasonable” and should be discussed with the patient.

Mrs. McCulloch and others argued that the patient’s individual circumstances, goals, and values should be taken into account when evaluating the reasonableness of treatment options. They also advocated for the courts, rather than medical opinion, to decide what constitutes a reasonable alternative treatment. In contrast, the Respondent (the hospital) maintained that the Bolam test, which relies on medical opinion, should continue to be the standard as per the Montgomery ruling.

Capital Law and the General Medical Council stepped in on behalf of the BMA, offering written representations grounded in the BMA’s understanding of prevailing medical expertise and guidance, how doctors currently interpret the Bolam and Montgomery tests, and the potentially adverse impact this decision could have on medical practitioners.

The Court’s Ruling
The Supreme Court reached a unanimous decision, affirming that determining the reasonableness of an alternative treatment requires professional skill and judgment, as established by a professional body of medical opinion (the Bolam test).

The Court expressed concerns regarding the Appellants’ arguments, primarily due to their inconsistency with established legal precedents (Montgomery), the necessity for consistency with medical expertise and guidance (directly related to the BMA’s involvement), the risk of compelling doctors to discuss inappropriate treatment options, the potential for overwhelming patients with excessive information and treatment choices, and the need to avert legal uncertainty for medical professionals.

Consequently, the Court rejected the Appellants’ arguments, deeming their request an unjustified expansion of the law as established in the Montgomery era.

The Court concluded that Dr. Labinjoh’s decision not to prescribe anti-inflammatory treatment for Mr. McCulloch and her failure to inform him of this option were not negligent actions. This judgment was supported by the absence of a clear pericarditis diagnosis and the alignment of her decisions with an accepted body of medical opinion.

The BMA and Capital Law applaud this decision, which serves to alleviate the daily burdens on doctors and uphold established legal principles in the medical field.

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.

More news

Trending news

Lawyer Dr Andreas Eustacchio has provided legal advice to ARGE Energy Königskreuz on their first cooperation in the context of
Paul, Weiss, Rifkind, Wharton & Garrison LLP has announced the addition of Maria-Leticia Ossa Daza as a partner in their
Allen & Overy (A&O) and Shearman & Sterling (Shearman) have announced the first partner promotions for their soon-to-be merged entity,
Andrew Johnston Andrew Johnston, Managing Partner Addleshaw Goddard is expanding its global presence by opening a new office in Madrid, led
AGM proudly announces the addition of Vanesa Alarcón Caparrós as a partner, who will lead the newly established Technology, Media,