Informed Consent: What Is The Test For Reasonable Alternative Or Variant Treatments?

• Published date: 11 July 2023
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: Gatehouse Chambers
• Author: Mr Aneurin Moloney

The Supreme Court in Montgomery imposed (or perhaps clarified) a duty to ensure that any patient is aware of the material risks involved in any recommended treatment. They also extended the duty to obtain informed consent to informing the patient of "any reasonable alternative or variant treatments."

In Bilal v St George's University Hospitals NHS Trust [2023] EWCA Civ 605, a question was raised over the meaning of 'reasonable alternative or variant treatments'. Specifically, is 'reasonable' in this context to be judged in the same way as other aspects of medical negligence i.e., the Bolam test? Or is it to be judged from the patient's perspective?

In practical terms, what does a claimant need to prove in order to succeed in a claim based on a reasonable alternative treatment allegation:

• Is it; 'that no responsible body of doctors would fail to have offered that treatment to the patient?'
• Is it effectively the inverse; 'that at least a responsible body of doctors would not regard it as improper to have offered the treatment to the patient'.
• Or is it somewhere in between, with reasonable in the consent context being different from the standard of treatment context?

The Facts and First Instance Decision

Bilal was a complex case concerning a poor outcome from 2 spinal surgeries. It involved both traditional clinical negligence allegations concerning the diagnosis of the nature of post-operative pain, and informed consent allegations which included a failure to discuss or recommend alternative treatments to surgery, such as pain management or injections.

The Claimant lost on all aspects of the claim at trial. HHJ Blair KC (sitting as a Deputy High Court Judge) made clear that much of the case turned on a factual dispute over the nature of post-operative pain. In dismissing the alternative treatment allegation, he said:

"I consider that a responsible and respectable body of skilled spinal surgeons would have reasonably concluded that there were no reasonable alternative treatments available" on the basis of the patient's reported symptoms.

As to causation, he found that the patient would have proceeded to surgery even if he had been advised of other treatment options.

The Appeal

The Claimant appealed on 3 grounds. It was contended that HHJ Blair KC was wrong:

• To have held that it was reasonable to have offered revision surgery when the surgeon was unaware of the duration of pain.
• To have held that the patient was aware of reasonable alternative treatments.
• ...