Those of you who have read my blog – “Bolam is Dead. Long live Bolam !” will know my view that the Bolam “body of doctors” test should not be considered to apply universally to every scenario of clinical negligence and that one of the most obvious exceptions is consent in light of the Supreme Court case of Montgomery.

It is now time to review the decision in Montgomery in light of the recent Supreme Court decision in McCulloch. 

By way of reminder, my summary of the Montgomery consent test (which I use for cons with experts) is –

Did the doctor take reasonable care to ensure that the Claimant was aware of material risks involved in the treatment (would a reasonable person in the Claimant’s position would be likely to attach significance to the risk or the doctor should reasonably be aware that the particular Claimant would be likely to attach significance to it) and of any reasonable alternative (including no treatment) ?

The Court of Appeal in the case of Duce subsequently (and I think helpfully) broke that test down into 2 stages – 

1. What risks associated with an operation were or should have been known to the medical profession – a matter falling within expertise of medical professionals.

• Whether the patient should have been told about such risks – were they material – not a matter to be determined by expert evidence alone.

However it seems to me that consenting a patient for treatment (whether is it surgical or a drug treatment) logically has more than 2 stages. In my view they are –

1. The doctor identifies the appropriate options in treatment;
2. The doctor identifies the risks of those options (Duce stage 1);
3. The doctor advises the patient of the material risks (Duce stage 2);
4. The doctor can/will usually recommend one of those options to the patient;
5. The patient decides on the treatment they wish to have.

The recent case of McCulloch considered stage 1 – see para 3 of the judgment – “The main issue which arises on this appeal is what legal test should be applied to the assessment as to whether an alternative treatment is reasonable and requires to be discussed with the patient.”

The Supreme Court in McCulloch essentially confirmed that the Montgomery reasonable care test applies to stage 3 above, but held that the Bolam “body of doctors” test – or as they called it “the professional practice test” (abbreviated to Bolam PPT below) – applied to stage 1 above. 

As an aside, I must say I like their description of it as “the professional practice test”; it helps distinguish it from the other test referred to in the case of Bolam – reasonable skill and care.

Personally I am not that surprised by this finding as, although I am very ready to suggest the Bolam “body of doctors”/“professional practice” test does not apply to every clinical scenario, my view is that (as the law stands) it does apply where the doctor is considering the options for treatment.

As regards stage 2 (or Duce stage 1) – identifying the risks – I have always thought that a reasonable care test should apply to this rather than the Bolam PTT – as logically the issue should be “Has the clinician exercised reasonable care in keeping themselves abreast of the literature ?”, rather than “in being ignorant of this risk, is the clinician acting in accordance with a practice which would be accepted as proper by a reasonable and responsible body of clinicians ?”. Like trying to apply the Bolam PTT to a careless surgical error in not noticing that you have cut a blood vessel, no doctor would consider being ignorant of a risk a practice that could be accepted as proper – as that test implies conscious choice and the whole point of both these situations is that they involve acts which are unconscious of the risk or error. 

However, I note that at para 55 in McCulloch the SC states by reference to the CA decision in Duce – “… in the context of warning about risks, the most important point is that Hamble LJ distinguishes between first, knowledge of the risks which, applying the Bolam standard, is to be determined by reference to the expertise of the medical profession …”. And at para 64 they state that stage 1 and 2 should be treated in the same way and should be determined by the Bolam PPT. 

Another recent case at first instance – Powell –  illustrated that the Bolam PPT also applies to stage 4. Again, I found that unsurprising, as the doctor is considering what option they would recommend.

The SC in McCulloch made an additional point –

“Once the doctor, applying the professional practice test, has a range of reasonable alternative treatments, the patient should be informed of all of them” unless they specifically request greater or lesser information (para 80).

So, with the aim of providing some assistance but at the risk of over simplifying the situation, my nutshells summary of the test for the consent process is – 

1. The doctor identifies all reasonable treatment options – Bolam PPT;
2. The doctor identifies the risks of those options (Duce stage 1) – Bolam PPT (but see my comments as to whether logically it should be reasonable care);
3. The doctor advises the patient of all of those options, their respective advantages and disadvantages and of their material risks (Duce stage 2) – Montgomery;
4. The doctor can/will usually recommend one of those options to the patient – Bolam PPT;
5. The patient decides on the treatment they wish to have.

Cases – 

McCulloch v Forth Valley 2023 UKSC 26

Montgomery v Lanarkshire 2015 UKSC 11

Duce v Worcestershire NHS Trust 2018 EWCA Civ 1307

Powell v University Hospitals Sussex NHS Foundation Trust 2023 EWHC 736 KB

Dr SIMON FOX KC

22.7.23