Viewpoints: December 2023

In my article “Reasonable to whom?” (Journal, September 2023, 24) I suggested that the doctor’s duty to advise on treatment alternatives, declared in Montgomery v Lanarkshire Health Board [2015] UKSC 11, might come under review. Lord Braid in Ronnie O’Neill Freight Solutions v MacRoberts LLP [2023] CSOH 75 (2 November 2023) confirms that there is no equivalent duty on solicitors.  

In Montgomery, the Supreme Court sought to promote a dialogue approach to consent in medicine, identifying a duty to advise of reasonable alternative or variant treatments: “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. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it" (para 87).

The law has since evolved via a series of hard cases ending in McCulloch v Forth Valley Health Board [2023] UKSC 26. Where some doctors would have considered an alternative and some would not, and the doctor complained of did not, that doctor escapes if a reasonable body of medical opinion agrees with their view, even if others would consider it.

In my article, I welcomed this retreat from the principle as originally expressed. However, problems remain. The approach assumes that the patient has the power and the desire to take an informed decision. It forces doctors to maintain a very wide understanding of alternatives. That assumes time and access to learning. In addition, it sets doctors against patients where treatment availability is restricted. That is destructive of trust. The current law may be acceptable where the vast majority of doctors are insured through the NHS or defence unions, but reputations are precious and any judicial finding of negligence attracts GMC investigation.

In Ronnie O’Neill Freight Solutions the court absolved the defender, applying Hunter v Hanley, so the point is obiter. Montgomery does not appear to have been cited. “To what extent must a solicitor, when advising a client involved in a contentious situation, give advice about all arguments which might be deployed? Is it negligent not to give advice about arguments which the solicitor thinks could be advanced, but are likely to fail?” (para 1). That sounds very close to a complaint that alternative treatment(s) were not discussed.

At para 54: “such a [duty] would be virtually meaningless and unworkable: to require advice on all statable arguments would be to set the bar far too low, and would set solicitors, particularly those advising on an urgent problem, a virtually impossible task. The depth of the advice must necessarily depend on the circumstances in which it is given… and is ultimately… a matter of judgment: a client who is about to embark on a certain course of action… may require to be advised on risks where there is a real scope for dispute…; whereas a client on the steps of the court may need to be told less… a client generally pays for advice, not a dissertation on the law”. 

The law for solicitors takes into account the factual context. Why do doctors deserve lesser protection? 

John Stirling, partner, Gillespie Macandrew LLP