McCulloch v. Forth Valley, Bilal v. St George’s: Was Montgomery really necessary?

On November 10th, Pro-VIDE-Law are holding a seminar in Liverpool to reflect on Montgomery. The seminar is entitled “Where does medicine end and law begin?

We are approaching the 10th birthday of Montgomery. It is reasonable to think of Montgomery as having a 10th birthday, as it is undoubtedly a favoured child of the judiciary, meriting attention at all times. The scope of the Montgomery duty was discussed in two recent appellate decisions in the Court of Appeal in Bilal v. St George’s Hospital and in the Supreme Court in McCulloch v. Forth Valley.

It is not necessary to discuss the facts of these cases in any great detail, since the Appeals, as relevant to Montgomery, proceeded on a narrow point, discussed in more detail below. However, it is apparent that in each case the Claimants had failed on factual bases which were not susceptible to challenge on appeal. Any issue on Montgomery was largely tangential to the Claimant’s action failing. Nonetheless, in each appeal the Courts addressed the Montgomery issue. Indeed, reading the speeches in the Supreme Court, it is scarcely noticeable that the Claimant in any event had formidable causation difficulties.

The issue on Montgomery identified in both appeals was whether the assessment of reasonable alternative treatments to that given should be assessed by reference to what was described as the professional practice test, that is Bolam/Bolitho, or whether an approach based on Montgomery should be taken. In both cases it was decided that a Bolam/Bolitho approach should be taken. Accordingly, if a clinician did not advise a patient of alternative treatment because the clinician did not believe it to be reasonable, and that view was supported by a body of relevant opinion, the clinician would not be in breach of duty. This would apply even if there was to the clinician’s knowledge an alternative view held by a reasonable body, and even if the Court accepted that the Claimant would, after proper discussion, have preferred the alternative treatment.

There appears to be a tension here, or at least some unresolved issues, in particular, relating to the definition of “reasonable” in this context.

Dr McLellan, the Consultant advising Nadine Montgomery, presumably considered that a caesarean section was not a reasonable alternative when she advised the Claimant without making reference to this possibility. It is possible to envisage a number of scenarios in which the question of how “reasonableness” of alternative treatment is assessed will come into clearer focus. This could occur if a surgeon does not advise of a new or experimental surgical technique because the surgeon reasonably believes that it is not sufficiently established in clinical practice. However, there are reputable consultants who take a different view. The evidence in the case is that the surgery would have been successful and the Claimant would have consented, being anxious for something to be done to alleviate the condition in question.

It would also be interesting to see how the Court would approach a situation in which a clinician did not advise a certain form of treatment as a possibility because the clinician believed that the Claimant would not be able to comply with a rigorous rehabilitation regime, which was essential to a successful outcome of the treatment in question. The patient, however, might take a different view, and also might reasonably believe that it was an issue that should be discussed.

It is difficult to square a simple statement that the assessment of whether alternative treatment is reasonable as being subject to the professional practice test with the scope and implications of the Montgomery decision.

Considering the facts in McCulloch, it could be suggested that the crucial difference with Montgomery was one of context. The clinician in question was not discussing treatment with the patient with a view to obtaining consent, but rather offering advice in relation to a patient who was under the care of another consultant. The clinician reasonably would have understood that it would not have been her function to facilitate some discussion whereby all possible treatments were brought to the Claimant’s attention. The impracticability of such a duty was clearly material in the Supreme Court’s approach. Importing into these circumstances a legal duty of care going beyond professional practice duty requirements would place an impossible burden on busy clinicians in routine management.

However, the decision in Montgomery specifically requires a clinician in the context of obtaining consent to discuss reasonable alternative treatments. This cannot be dismissed simply as a duty to discuss risks of treatment, but would envisage that a patient would be made aware of alternatives. It is clear that if a clinician believes on reasonable evidence that treatment would not be effective, then no duty could arise to discuss it with a patient. Adopting terms such as “clinically appropriate” or “clinically suitable” as discussed in McCulloch does not resolve the question of the assessment of the degree of suitably or appropriateness necessary to make alternative treatment a reasonable option, at least for discussion.

Ultimately, it could be suggested that the Courts could do no better than reverting to a professional practice test in relation to reasonable alternative treatment in all respects.

The decision in Montgomery was reasonably described as being evolutionary rather than revolutionary; that is representing a move away from traditional medical paternalism. It would have been open to the courts in Montgomery to indicate that on the evidence as to proper professional practice, Dr McLellan was not acting in accordance with her duty to Nadine Montgomery in deciding, without reference to her, that a caesarean section was not a reasonable alternative treatment.

On 10th November we are joined by two experienced medico-legal experts, Jonathan Hobson (ENT surgeon) and Dr Simon Minkoff (General Practitioner) and Dr Craig Purshouse, (Senior Lecturer of Law). The intention is to discuss the impact of the Montgomery decision, the practical issues it presents for clinicians and where the law should go from here.

Charles Feeny