Invitation To Treat? Supreme Court Clarifies The Professional Practice Test

• Law Firm: Gatehouse Chambers
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trials & Appeals & Compensation, Professional Negligence
• Author: Ms Charlotte Wilk
• Published date: 25 September 2023

In McCulloch and others (Appellants) v Forth Valley Health Board (Respondent) (Scotland) [2023] UKSC 26, the Supreme Court considered which legal test should be applied to the assessment of whether an alternative treatment was reasonable and should be discussed with a patient.

The legal test for establishing negligence by a doctor in diagnosis or treatment is whether the doctor has acted in accordance with a practice accepted as proper by a responsible body of medical opinion. This will be referred to for shorthand as the "professional practice test", as set down by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 ("Bolam"). The test is consistent with Hunter v Hanley 1955 SC 200 ("Hunter v Hanley"). A qualification to this test is found in Bolitho v City and Hackney Health Authority [1998] AC 232 ("Bolitho"): a court may, on rare occasions, reject the professional opinion if it is incapable of withstanding logical analysis.

The appeal considered whether the Inner House and Lord Ordinary erred in law in holding that a doctor's decision on whether an alternative treatment was reasonable and required to be discussed with the patient should be determined by the application of the professional practice test. The court therefore needed to consider the following: does a doctor fall below the required standard of reasonable care by failing to make a patient aware of an alternative treatment?

The background

Mr McCulloch, age 39, was admitted to the Forth Valley Royal Hospital on 23^rd March 2012; he was presenting with severe pleuritic chest pains, nausea, and vomiting. Dr Labinjoh, a Consultant Cardiologist, was asked to review an echocardiogram that had been performed on Mr McCulloch. In her opinion, his presenting condition did not fit with that of pericarditis (inflammation of the heart lining). His condition subsequently improved, and he was discharged home on antibiotics on 30^th March. The plan was for Mr McCulloch to be reviewed within four weeks, with a repeat echocardiogram and chest x-ray to be arranged in advance of the consultation.

The immediate discharge letter recorded the diagnosis as acute viral myo/pericarditis with secondary bacterial lower respiratory tract infection. Mr McCulloch's chest pains returned two days later. He was readmitted to the hospital by ambulance and given intravenous fluids and antibiotics. He complained of central pleuritic chest pain, similar to the previous admission. On 2^nd April, Mr McCulloch...