Reasonable to whom?

In the landmark 2015 case of Montgomery v Lanarkshire Health Board [2015] UKSC 11; 2015 SCLR 315 the Supreme Court identified a new duty for doctors to perform: a duty to advise of reasonable alternative treatments. At a stroke, a new and demanding task was added to professional lives and, if it could be proved that a patient’s outcome would have been altered by the information, a new liability.

The law remains that the burden of an act of God rests where it falls. The new duty was to advise of reasonable alternatives to planned treatment. But who judges what a reasonable alternative is – doctors or judges? That was the question which faced the Supreme Court this spring in McCulloch v Forth Valley Health Board [2023] UKSC 26; 2023 SLT 725.

Such cases are a reminder of human tragedy – in this case a man dead at the age of 39 after cardiac arrest. The suggestion was that the simple prescription of NSAIDs (e.g. ibuprofen) might have avoided his death. In this case the doctor did not prescribe them; crucially neither did they advise that they were an alternative treatment, because the doctor did not consider them a reasonable alternative. The evidence was that in the circumstances some doctors would have considered them an alternative and some would not. This doctor did not. The Supreme Court’s view was that because the doctor’s decision, that it wasn’t an alternative, was backed by a reasonable body of medical opinion, there was no negligence.

Challenges for the NHS model

The Supreme Court’s decision clarifies that a doctor now only need advise of what, in that doctor’s view, the reasonable alternative treatments are, including taking no action, and the risk attached to each of those and to his or her own preferred treatment. They need not advise of any other possible treatments even if another reasonable group within the profession would consider them – provided their decision not to do so is supported by a body of medical opinion. In other words, if a body of opinion within the profession would agree with the doctor’s conclusion on reasonable alternatives there is no negligence.

There are a number of difficulties with this approach in the NHS model of care, particularly for GPs. It assumes that patients have the right to choose between the alternatives. Let’s assume that there are seven, ranging in cost (as one measure; time taken to treat, availability of equipment and skill might be others) from a few pennies for a pill to a treatment regime costing £10,000 a day. At the expensive end of the continuum some central control on spending must be imposed, so the premise is false.

If reasonable treatments are more than those available on the NHS, it adds much work to the doctor. They might well have knowledge of the risks attached to what the NHS provides, but what of those attached to the other treatments?

If those other treatments are discussed and the NHS refuses them on cost (or supply/lack of skill to deliver) grounds, the patient may feel shortchanged. If the refusal is because experts disagree on which treatment is most appropriate, they are caught between experts. Even if that dispute is resolved by second opinion, an unhelpful seed of doubt is planted.

Whatever the basis of refusal, the patient is pitted against the doctor denying a treatment option. All of this in a consultation of 10 minutes?

What do patients want?

Beyond the false assumption and the difficulties injected into consultations, the new law assumes that a patient, by definition ill, will want to actively exercise judgment. The desire for transparency is understood but, as the Supreme Court said in McCulloch, too much information is as blinding as too little. Patients often want to be told what to do when they are ill. They want to be told of the risks attached, surely, but not the risk profiles of the six reasonable alternatives. That’s as likely to erode trust as build it. Most will be much more concerned that having chosen a treatment appropriately, the doctor treats them competently.

What advice may be appropriate for the 1% buying an investment product may not be appropriate to the 100% of us who will be seriously ill at some point. The decision in McCulloch was helpful clarification of Montgomery, but doubts remain about whether Montgomery is a helpful development. In time the courts may well seek to restrict the duty to advise beyond the treatment proposed.