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Information about alternative treatments: The approach to determining breach of duty

  • Madden, Bill
  • Cockburn, Tina
Publication Date
Aug 01, 2023
Queensland University of Technology ePrints Archive
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The question addressed by this article required the recent attention of the Supreme Court of the United Kingdom, (the Court) in the matter of McCulloch & Ors v Forth Valley Health Board,1 on appeal from a Scottish Court of Sessions appellate decision. The single judgment of the Court (Lord Hamblen & Lord Burrows, with whom Reed, Hodge and Kitchin LJJ agreed) began with two succinct observations. Firstly, the legal test (in the United Kingdom) 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. Referred to in a shorthand way as the “professional practice test”, it was clearly laid down in the jury directions of McNair J in Bolam v Friern Hospital Management Committee. Secondly, in the case of Montgomery v Lanarkshire Health Board6 the Supreme Court decided that the professional practice test did not apply to a doctor’s advisory role “in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved”. The doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. <br/>Those two propositions appear clear enough, though there are of course some differences of approach in the various Australian jurisdictions which will be discussed later. The question which arose in McCulloch was what legal test should be applied to the assessment as to whether an alternative treatment is reasonable and required to be discussed with the patient. More specifically, did the doctor fall below the required standard of reasonable care by failing to make a patient aware of an alternative treatment in a situation where the doctor’s opinion was that the alternative treatment was not reasonable, and that opinion was supported by a responsible body of medical opinion. The question arose in the context of a claim brought by the widow and other family members of Mr Neil McCulloch against Forth Valley Health Board for damages for negligently causing his death on 7 April 2012. It was alleged that his death was caused by the negligence of Dr Labinjoh, a consultant cardiologist, who it was said should have advised Mr McCulloch of the option of treatment with a non-steroidal anti-inflammatory drug (NSAID), such as ibuprofen, for pericarditis. As regards causation, it was alleged that had such advice been given, Mr McCulloch would have taken the NSAID, and had he taken the NSAID he would not have died.

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