Rob Weir KC in Supreme Court Consent Case

Judgment was handed down today in McCulloch v Forth Valley Health Board [2023] UKSC 26, a case in which a doctor did not advise the deceased of the option of treatment with a non-steroidal anti-inflammatory drug for his pericarditis/pericardial effusion which, on the pursuers’ case, would have saved his life. As it was, four days later, he died of a complication of his pericarditis/pericardial effusion.

The doctor did not advise of this treatment option because she did not, in her professional judgment, regard it as appropriate to do so. In this, she was supported by a responsible body of medical opinion, albeit there was another responsible body of medical opinion which held that she should have discussed this treatment option.

The issue for the Supreme Court was whether, following Montgomery v Lanarkshire Health Board [2015] AC 1430, the relevant legal test for whether an alternative treatment is reasonable is to be governed by the Bolam test (as held by the Scottish courts at first instance and on appeal) or whether, as the pursuers contended, it was an issue for the court to determine, as was the disclosure of material risks of any reasonable treatment option.

The Supreme Court (joint judgment of Lord Hamblen and Lord Burrows) came down firmly in favour of the Bolam test applying with the result that the appeal was dismissed. One consequence of this is that whether a patient is informed about a treatment option may well turn on the views of the particular doctor who is treating the patient. Patient autonomy has bowed to doctor’s control.

Rob Weir KC led Lauren Sutherland KC of the Scottish Bar and was instructed by Drummond Miller LLP (Edinburgh) for the appellants/pursuers.

A copy of the judgment can be found here.

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