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McCulloch and others (Appellants) v Forth Valley Health Board (Respondent) (Scotland)

(UKSC 2021/0149) Mr Neil McCulloch died on 7 April 2012 at Forth Valley Royal Hospital, having suffered a cardiac arrest at home. The appellants are Mr McCulloch's widow and other relatives. They claim that his death was caused by the negligence of Dr Catherine Labinjoh, a consultant cardiologist employed by the respondent, the Forth Valley Health Board. Among other things, the appellants allege that, in line with the duty in Montgomery, Dr Labinjoh was required to discuss the option of using non-steroidal anti-inflammatory drugs with Mr McCulloch. The appellants' claim failed before both the Outer House and the Inner House of the Court of Session. Both courts held that the duty in Montgomery does not require a doctor to discuss a course of treatment with their patient if the doctor has concluded, applying their professional skill and judgment, that it is not a reasonable option in the circumstances of the case and the doctor's view is supported by a responsible body of medical opinion. They also held that, even if negligence had been established, the claim would still have failed because the appellants had not proven on the balance of probabilities that it caused Mr McCulloch's death. The appellants now appeal to the Supreme Court. The issue is: In Montgomery v Lanarkshire Health Board [2015] UKSC 11, the Supreme Court held that a 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." In this appeal, the Supreme Court is asked to decide what test should be applied when assessing whether an alternative treatment is reasonable and requires to be discussed with the patient. More specifically, did the doctor in this case 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? It is also asked whether the courts below erred in their approach to the issue of causation. The Supreme Court unanimously dismisses the appeal. More information is available on our website: UKSC 2021/0149