Bolam, Bolitho and Informed Consent

Dominic Ruck Keene

McCulloch and Others v Forth Valley Health Board [2023] UKSC 26

The Supreme Court has given an authoritative re-statement of the application of the ‘Professional Practice Test’ or Bolam test in the context of informed consent.  This was a Scottish case, but the law on informed consent is the same in both Scotland and England – see the judgment in Bilal v St George’s University Hospital NHS Foundation Trust [2023] EWCA Civ 605 at [66] where the Court of Appeal reached exactly the same conclusion as to the application of the Bolam test to informed consent as the Supreme Court in McCulloch.

The Professional Practice Test

The Supreme Court re-iterated that the ‘Professional Practice Test’ is whether the doctor has acted in accordance with a practice accepted as proper by a responsible body of medical opinion, save where a court “in a rare case” reject the professional opinion if it is incapable of withstanding logical analysis. That test of course originated in the judgment of McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, 587, with the ‘logical analysis’ rider being added by Bolitho v City and Hackney Health Authority [1998] AC 232.

This was recently emphasised in the informed consent case of Powell v University Hospitals Sussex NHS Foundation Trust [2023] EWHC 736 (KB) at [21]:

Applying the burden of proof, it is the claimant’s task to prove that there is no responsible body of practitioners who would have done as the defendant had done. Failing that, even if the majority or a large majority of practitioners would have done otherwise, there is no negligence. This may appear a curious conclusion to many people. Its rationale lies fundamentally in the fact that very often these fields of professional specialism involve great complexity and difficult judgements. If in a particular specialist niche, practitioners recognise that there are reasonable alternative treatments, a professional is not negligent because she or he advises or performs one preferred by the minority camp – so long as it is rational and logical.”

Risks

Nevertheless, the Supreme Court confirmed in McCulloch at [2] that the professional practice test does not apply to a doctor’s advisory role “in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.” The performance of this advisory role is not a matter of purely professional judgment because respect must be shown for the right of patients to decide on the risks to their health which they are willing to run.The familiar requirement from the cornerstone judgment of Montgomery v Lanarkshire Health Board [2015] AC 1430, at [82] and [87] still applies – namely the duty imposed on a doctor 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 question as to what risks were or ought to have been known to the medical professional in question is a matter “within the expertise of medical professionals” to which the professional practice test applies, at [53] to [63]. Crucially they can only be expected to warn about risks that they could reasonably have known about at the time – rather than with the benefit of hindsight. Relevant factors as to the materiality of a risk may include: the odds of the risk materialising; the nature of the risk; the effect its occurrence would have on the life of the patient; the importance to the patient of the benefits sought to be achieved by the treatment; the alternatives available and the risks associated with them, at[54].

Alternatives

However, the Supreme Court confirmed that the professional practice test does apply to the doctor’s assessment as to whether an alternative treatment is reasonable and must be discussed with the patient, at [56]. It went on to say:

57.  A hypothetical example may help to explain, in more detail, how we regard the law as working. A doctor will first seek to provide a diagnosis (which may initially be a provisional diagnosis) having, for example, examined the patient, conducted tests, and having had discussions with the patient. Let us then say that, in respect of that diagnosis, there are ten possible treatment options and that there is a responsible body of medical opinion that would regard each of the ten as possible treatment options. Let us then say that the doctor, exercising his or her clinical judgment, and supported by a responsible body of medical opinion, decides that only four of them are reasonable. The doctor is not negligent by failing to inform the patient about the other six even though they are possible alternative treatments. The narrowing down from possible alternative treatments to reasonable alternative treatments is an exercise of clinical judgment to which the professional practice test should be applied. The duty of reasonable care would then require the doctor to inform the patient not only of the treatment option that the doctor is recommending but also of the other three reasonable alternative treatment options (plus no treatment if that is a reasonable alternative option) indicating their respective advantages and disadvantages and the material risks involved in such treatment options….

66…. Once it has been decided what are the reasonable alternative treatments, by applying the professional practice test, the doctor is then under a duty of care to inform the patient of those reasonable alternative treatments and of the material risks of such alternative treatments.” [Emphasis added]

Furthermore, a doctor has no duty of care to inform the patient of a possible alternative treatment that, applying the professional practice test, he or she does not regard as a reasonable alternative treatment even if the doctor is aware (or perhaps ought to be aware) that there is a responsible body of medical opinion that does regard that alternative treatment as reasonable, at [81].

Comment

The Supreme Court’s judgment, while not unexpected, is another reminder of the difficulty for Claimants in successfully arguing informed consent cases. That is particularly so where their case depends on establishing:

(1) that there was a different treatment that was a reasonable and logical alternative in and of itself.

(2) that it would have been unreasonable or illogical not to offer that alternative treatment; and

(3) as a matter of fact, if given appropriate information concerning the material risks and likely benefits of the index treatment and the alleged reasonable alternative, then they would have opted for the reasonable alternative.