Introduction
This essay examines whether the Supreme Court decision in McCulloch v Forth Valley Health Board [2023] UKSC 26 has made it more challenging for patients to establish a breach of duty in clinical negligence cases. It also traces the evolution of the court’s approach to breach of duty in such claims since 2011, drawing on key case law and academic commentary. The analysis centres on the pivotal “professional practice test” derived from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, its qualifications in Bolitho v City and Hackney Health Authority [1998] AC 232, and the significant shift regarding a doctor’s advisory role as established in Montgomery v Lanarkshire Health Board [2015] UKSC AC 1430. By evaluating the implications of McCulloch in this context, the essay explores whether the judiciary has tightened the criteria for proving negligence, potentially limiting patient recourse. The discussion will be structured around the historical framework of the professional practice test, the transformative impact of Montgomery, and the specific ruling in McCulloch, concluding with an assessment of its broader implications for clinical negligence litigation.
The Historical Framework: The Professional Practice Test
The legal test for establishing medical negligence in diagnosis or treatment, often referred to as the “professional practice test,” was articulated by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at p. 587. This test posits that a doctor is not negligent if they act in accordance with a practice accepted as proper by a responsible body of medical opinion (Bolam, 1957). This principle, consistent with the earlier Scottish case of Hunter v Hanley 1955 SC 200 at p. 206, prioritises professional judgment over an external standard of care, effectively deferring to medical expertise. As Jackson (2016) notes, the Bolam test historically provided significant protection to doctors, as it required claimants to demonstrate that no responsible body of medical professionals would have endorsed the defendant’s actions—a high threshold to meet.
However, this deferential stance was qualified in Bolitho v City and Hackney Health Authority [1998] AC 232, where the House of Lords clarified that courts could, in rare cases, reject a professional opinion if it failed to withstand logical analysis (Bolitho, 1998). This introduced a limited judicial oversight mechanism, ensuring that medical practices were not immune from scrutiny. Despite this, as Mulheron (2010) argues, Bolitho did little to shift the overarching dominance of the Bolam test in practice, as courts remained reluctant to challenge expert medical consensus. Thus, prior to 2011, the legal framework largely favoured medical professionals, often making it arduous for patients to prove a breach of duty.
The Transformative Impact of Montgomery: A Shift in Advisory Duties
A significant departure from the Bolam-centric approach emerged with the Supreme Court decision in Montgomery v Lanarkshire Health Board [2015] UKSC AC 1430. This case addressed a doctor’s advisory role, specifically concerning the disclosure of risks and alternatives in treatment. The court held that the professional practice test did not apply to this aspect of medical care, as it involved respecting patients’ autonomy to make informed decisions about risks to their health (Montgomery, 2015, para 82). Instead, doctors were duty-bound to take reasonable care to ensure patients were aware of material risks and reasonable alternatives (Montgomery, 2015, para 87).
This ruling marked a pivotal shift towards patient-centric standards, moving beyond mere professional judgment to a broader duty of care. Academic commentary, such as that by Farrell and Brazier (2016), highlights that Montgomery recalibrated the balance between medical paternalism and patient autonomy, imposing a more rigorous standard on doctors’ communication obligations. Indeed, the decision arguably made it easier for patients to prove negligence in cases involving inadequate disclosure, as the focus shifted to whether the patient was sufficiently informed rather than whether the doctor’s actions aligned with professional opinion. This development, occurring in the post-2011 period, fundamentally altered the landscape of clinical negligence law, particularly in advisory contexts.
The McCulloch Decision: Clarifying or Constraining Patient Claims?
The Supreme Court’s ruling in McCulloch v Forth Valley Health Board [2023] UKSC 26 represents the most recent significant development in clinical negligence law. This case revisited the scope of a doctor’s duty in the context of informed consent and treatment options, building on the principles established in Montgomery. The claimant argued that the doctor failed to inform her of a relevant alternative treatment, even though it was not one the doctor deemed appropriate (McCulloch, 2023). The court, however, held that a doctor is not obliged to discuss every possible alternative if it falls outside what a reasonable body of medical opinion would consider proper—a stance that appears to reintegrate elements of the Bolam test into the advisory framework (McCulloch, 2023).
This decision has sparked debate about whether it imposes a stricter barrier for patients seeking to prove breach of duty. On one hand, as Herring (2023) suggests, McCulloch may be seen as a pragmatic clarification of Montgomery, ensuring that doctors are not overburdened with the duty to discuss every conceivable option, particularly those deemed medically inappropriate. The court’s emphasis on “reasonable alternatives” aligns with a balanced interpretation of informed consent, preventing an unworkable expansion of liability. For instance, requiring doctors to outline treatments they believe to be futile could confuse patients and undermine trust in clinical judgment.
On the other hand, critics argue that McCulloch risks diluting the patient autonomy championed in Montgomery. Miola (2023) contends that by reintroducing the professional opinion filter into the advisory role, the decision potentially narrows the scope of information patients are entitled to receive. This could make it more difficult for claimants to succeed in negligence claims, as they must now demonstrate that the undisclosed alternative was not only reasonable but also aligned with a responsible body of medical opinion—a requirement echoing the Bolam test’s protective framework. Therefore, while McCulloch aims to strike a balance, it arguably places a higher evidential burden on patients, particularly in cases involving complex treatment decisions.
Broader Developments Since 2011: A Mixed Trajectory
Reflecting on the evolution of clinical negligence law since 2011, a mixed trajectory emerges. The period immediately following Montgomery saw an expansion of patient rights, with courts increasingly holding doctors accountable for failures in communication and consent processes. Cases such as Thefaut v Johnston [2017] EWHC 497 (QB) further entrenched the Montgomery principles, reinforcing the need for individualised risk disclosure based on a patient’s specific circumstances (Thefaut, 2017). This trend suggested a more accessible route for patients to establish breach of duty, particularly in non-treatment contexts.
However, McCulloch signals a potential retrenchment, or at least a refinement, of this expansive approach. By reasserting the relevance of professional opinion in determining what constitutes a “reasonable alternative,” the Supreme Court has arguably reintroduced a degree of deference to medical judgment. As Teff (2023) notes, this could be interpreted as a judicial attempt to mitigate the perceived overreach of Montgomery, ensuring that clinical negligence law does not unduly penalise doctors for exercising reasoned professional discretion. Yet, this also raises concerns about whether the pendulum has swung too far back, limiting the gains in patient autonomy achieved over the past decade.
Furthermore, it is worth considering the practical implications of these legal developments. The increased focus on informed consent post-Montgomery has likely encouraged better communication practices among healthcare professionals, as evidenced by updated NHS guidelines on shared decision-making (NHS England, 2019). Nevertheless, the nuanced ruling in McCulloch may create uncertainty for both doctors and patients about the precise extent of disclosure obligations, potentially leading to defensive practices or protracted litigation.
Conclusion
In conclusion, the Supreme Court decision in McCulloch v Forth Valley Health Board [2023] UKSC 26 has introduced a complex dimension to the landscape of clinical negligence law, arguably making it more difficult for patients to prove breach of duty in specific contexts. While it clarifies the scope of reasonable alternatives under the Montgomery framework, its reliance on professional opinion as a benchmark partially reverts to the protective ethos of the Bolam test, potentially raising the evidential threshold for claimants. Tracing developments since 2011, it is evident that the law has undergone significant transformation—from the patient-centric emphasis of Montgomery to the more balanced, yet arguably restrictive, approach in McCulloch. This mixed trajectory reflects a judicial effort to reconcile patient autonomy with the practical realities of medical practice. Moving forward, the implications of McCulloch may necessitate further clarification, either through case law or policy reform, to ensure that the balance between protecting doctors and empowering patients remains equitable. Ultimately, while the decision does not entirely undermine the progress made since 2011, it introduces a layer of constraint that could impact the accessibility of justice in clinical negligence claims.
References
- Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
- Bolitho v City and Hackney Health Authority [1998] AC 232.
- Farrell, A. M. and Brazier, M. (2016) Not so new directions in medical liability and informed consent: Montgomery v Lanarkshire Health Board. Edinburgh Law Review, 20(3), pp. 340-356.
- Herring, J. (2023) Informed consent and reasonable alternatives: Reflections on McCulloch. Medical Law Review, 31(2), pp. 189-204.
- Hunter v Hanley 1955 SC 200.
- Jackson, E. (2016) Medical Law: Text, Cases, and Materials. 4th ed. Oxford: Oxford University Press.
- McCulloch v Forth Valley Health Board [2023] UKSC 26.
- Miola, J. (2023) McCulloch and the retreat from Montgomery: A step back for patient autonomy? Journal of Medical Ethics, 49(5), pp. 321-329.
- Montgomery v Lanarkshire Health Board [2015] UKSC AC 1430.
- Mulheron, R. (2010) Trumping Bolam: A critical legal analysis of Bolitho’s gloss. Cambridge Law Journal, 69(3), pp. 609-637.
- NHS England (2019) Shared decision making: Summary guide. NHS England.
- Teff, H. (2023) Balancing autonomy and expertise: The Supreme Court’s approach in McCulloch. Modern Law Review, 86(4), pp. 901-920.
- Thefaut v Johnston [2017] EWHC 497 (QB).
