Case of note: McCulloch (deceased) v. Forth Valley Health Board (Supreme Court – 12 July 2023)

Date published:


This is an important ruling on consent to medical treatment by the Supreme Court, which clarifies an aspect of their landmark ruling in Montgomery v. Lanarkshire Health Board in 2015.


Mr. McCulloch was admitted to hospital with severe chest pains on 23 March 2012.  Tests showed abnormalities compatible with a diagnosis of pericarditis (inflammation of the sac surrounding the heart).  Following tests and treatment his condition improved and he was discharged on 30 March.  On 1 April he was re-admitted with pleuritic chest pain.  Dr. Labinjoh, consultant cardiologist (but not the patient’s named consultant), was asked to assist in the interpretation of an echocardiogram on 3 April.  She considered that this did not give cause for concern but visited the patient on the ward, where he was moving around and looked much better than when she saw him last on 26 March.  He denied having any chest pain or palpitations, breathlessness or dizziness.  As a consequence, the consultant did not prescribe any medical treatment or discuss with him the risks and benefits of NSAIDs (non-steroidal anti-inflammatory drugs – for example Ibuprofen).

By 6 April the patient’s condition had improved and he was discharged home.  He suffered a cardiac arrest the following day and, although he was conveyed to hospital, died in the emergency room after a prolonged period of attempted resuscitation.

It was alleged on behalf of the deceased that Dr. Labinjoh should have offered NSAIDs and that, had she done so, Mr. McCulloch would have taken them and on the balance of probabilities his life would have been saved.  The consultant said she did not prescribe NSAIDs because in her professional judgment it was inappropriate to do so.  The patient was not in pain on 3 April and there was no clear diagnosis of pericarditis.  He had a history of gastric upset and other gastro-intestinal symptoms which were contra-indications for such treatment.  However, had the patient been in pain she would probably have prescribed NSAIDs.

At the first instance trial, the judge heard evidence from expert witnesses instructed by the respective parties who disagreed about whether NSAIDs should be prescribed to patients who were not in pain.  He concluded that the views of both experts were logical and reasonable.

In Montgomery, the Supreme Court had ruled that a doctor is “under a duty to take reasonable steps to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments”.   It was claimed that Dr. Labinjoh had been in breach of this requirement because NSAIDs constituted a “reasonable alternative” treatment – the trial judge having held that the expert who advocated this course was logical and reasonable – yet she failed to discuss this option with the patient.

The Supreme Court rejected this argument.  It concluded that the correct test to apply to what constitutes a reasonable alternative treatment is the professional practice test – usually referred to as the Bolam test.  In other words, the identification of which treatments are reasonable alternatives is a matter falling within medical expertise and professional judgment.

If, for example, there are ten possible treatment options supported by a responsible body of medical opinion but the doctor exercising clinical judgment, and likewise supported by a responsible body of medical opinion, decides that only four of them are reasonable, the clinician is not negligent for failing to tell the patient about the other six even though they are possible alternatives.  Dr. Labinjoh applied her professional judgment to the situation and concluded reasonably, according to logical expert view, that NSAIDs should not be discussed.

Only when the clinician has identified reasonable treatment options should the “advisory” role begin.  The doctor is required at this second stage to inform the patient of reasonable alternative treatments and the material risks of such alternatives, as per the ruling in Montgomery.

The court observed that if clinicians were to inform patients about courses of treatment they reasonably disagreed with, that would put them in a conflict situation.  One consequence of this would be defensive medicine, with doctors advising on all possible alternative options, however numerous or clinically inappropriate they might be.


This is a welcome ruling from the country’s highest court which applies sound common-sense and reinforces what had been understood by most in the clinical negligence field to be the law following Montgomery.  It cannot be right for clinicians to inform patients about courses of treatment they appropriately disagree with.  We now have clarity on what the court meant in their 2015 ruling by “reasonable alternative or variant treatment” and it is notable that Lord Reed, currently President of the Supreme Court who co-wrote the Montgomery judgment, was on the panel hearing this case and endorsed the ruling.  We are grateful to our colleagues in Scotland for achieving this very helpful outcome for the NHS nationally.