Reasonable Alternative Treatments
Bilal v St Georges University Hospital NHS Foundation Trust [2023] EWCA Civ 605
This Court of Appeal decision was given on 13 June 2023 (after the oral hearing in McCulloch and others v Forth Valley Health Board [2023] UKSC 26 [see pages 9-11 of this article] but before the Supreme Court decision in that case on 12 July 2023). It is concerned with the Claimant’s appeal against dismissal of his claim for damages arising from a spinal cord injury allegedly caused by the negligence of the Defendant’s neurosurgeon during elective surgery. By his grounds of appeal, the Claimant had contended that the first instance judge was:
1. Wrong to hold that a responsible body of competent and reasonable neurosurgeons would have offered the Claimant revision surgery at the T10/T11 level of his thoracic vertebrae in July 2015 in the absence of any enquiry or knowledge about the duration of his associated pain.
2. Wrong to hold that the Claimant had been made aware of reasonable alternative treatments and had given informed consent to the above surgery.
3. Wrong to hold that causation had not been proved.
It was accepted by the Claimant that grounds (2) and (3) were parasitic on succeeding on ground (1). The essence of the Claimant’s complaint was that there was an absence of enquiry by the treating neurosurgeon into an aspect of the Claimant’s history (intercostalgic symptoms). It was argued that had the neurosurgeon made such enquiry, (and it was argued adverse inference against him should be made from his failure to ask questions about the duration of intercostalgic symptoms) then the proper advice would have been that the Claimant should have been told that his pain might resolve spontaneously and, if not, that other conservative options might bring improvements in themselves. The Claimant also argued for a Chester v Afsharcausation outcome viz. that causation be proved even though the experts were unable to say what would have happened (in terms of recovery) had the correct advice been given.
The Appellant’s appeal faced significant hurdles on these grounds not least that the allegation that the neurosurgeon failed to ask questions about intercostalgic pain was not pleaded, nor was the neurosurgeon cross-examined about it. The causation case was at best, a ‘long-shot’: the first instance Judge expressly rejected the claimant’s case that if other options were explained to him, he would have declined the offer of surgery or sought a second option or would have deferred surgery. The appeal failed on all grounds as a result.
The real interest of the case – from this commentator’s point of view – lies in the approach to reasonable alternative treatments. The judge at first instance had said that:
“In the circumstances of this case I consider that a responsible, competent and respectable body of skilled spinal surgeons would have reasonably concluded that there were no reasonable alternative treatments available in the context of the parameters and discussion that the claimant had with [the neurosurgeon].”
This finding of fact (undisturbed on appeal) shows that, in some cases, notwithstanding whether alternative treatment strategies exist, including a pain management programme as an alternative to surgery, the Court’s key focus will be on the consultation that actually took place, the considerable degree of pain in which the Claimant found himself, the Bolam reasonableness of the surgeon’s view that it was unlikely that such pain would resolve spontaneously, and it is in those specific circumstances that the question of reasonableness of alternative treatments will be analysed, and judged by a Bolam assessment. The case clarifies that it is not for the Court to impose some external judgment on what alternative treatments ought or ought not be discussed based on autonomy principles, but rather for the doctor (in the first instance) and the relevant experts (for the purpose of Bolam assessment at trial) to determine whether, in the specific circumstances there were or were not reasonable alternatives which ought to have been discussed, and if so, what they were.
The principle behind this is expressed at [66] of the judgment of Nicola Davies LJ:
“I accept the contention of the respondent that Montgomery draws a distinction between two aspects of a clinician’s role, namely an assessment of treatment options (Bolam) and an assessment of what risks and treatment should be explained to the patient because they are material (Montgomery). The distinction between the two roles of the clinician is contained within the judgment of Montgomery at para 87 where it is stated that: “the doctor is therefore 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.” I accept that “reasonable” in respect of the assessment of alternative or variant treatments encapsulates the Bolam approach. As to material risks, that is the element of materiality which is to be judged from the perspective of the patient i.e. Montgomery. In my judgment it is for the doctor to assess what the reasonable alternatives are; it is for the court to judge the materiality of the risk inherent in any proposed treatment, applying the test of whether a reasonable person in the patient’s position would be likely to attach significance to the risk. Thus, the Judge at [93] was correct to apply Bolam and to conclude that his assessment reflected the guidance set out in para 87 of Montgomery.”
It may be noted that Nicola Davies LJ’s conclusion here is similar terms to that of the Supreme Court in Mccullogh v Forth Valley Health Board [2023] UKSC 26 which Lord Hamblen and Lord Burrows delivered a month later:
“[59]. In line with the distinction drawn in Montgomery at para 83 (see para 48 above), between the exercise of professional skill and judgment and the court-imposed duty of care to inform, the determination of what are reasonable alternative treatments clearly falls within the former and ought not to be undermined by a legal test that overrides professional judgment. In other words, deciding what are the reasonable alternative treatments is an exercise of professional skill and judgment. That is why, as submitted by Una Doherty KC, counsel for the respondent, it is appropriate to refer synonymously to reasonable alternative treatments or to “clinically appropriate” or “clinically suitable” alternative treatments.”
Comment
The clash between questions of clinical judgment and the determination of clinically suitable alternative treatments (determined by a Bolam test) and questions of court judgment (whether autonomy rights are respected when there is discussion of material risks concerning such treatments) reinforces the point that it is for a doctor to decide (subject to acting in accordance with a responsible body of opinion) which, if any, treatments are appropriate to treat the condition and which alternative treatments should be offered or discussed pertinent to the particular patient’s condition.
To summarise: notwithstanding what Montgomery says about discussion of material risks and autonomy, there is no common law right of autonomy which allows a patient to demand, or obliges a clinician to provide, a medical treatment or treatment alternative, that the doctor is not prepared to offer, or reasonably considers is not one which is appropriate to discuss with the patient in the specific circumstances. If any further authority is required to make good this point – see R. (on the application of Burke) v General Medical Council [2005] EWCA Civ 1003, at [50(v)] per Lord Philips, applied most recently by the Court of Appeal in R (JJ) v. Spectrum Community Health CIC [2023] Civ 885.
