The Supreme Court on consent for treatment: practical but unfair?

By Abeezar I Sarela.

On 12 July 2023, the Supreme Court issued its judgment in McCulloch v Forth Valley Health Board. This judgment resolves a contentious issue in contemporary legal and ethical paradigms of consent for medical treatment; so, it requires careful attention.

In an earlier blogpost, I discussed that, as per the ruling of the Supreme Court in Montgomery v Lanarkshire Health Board, doctors are obliged to inform patients of ‘material risks involved in any recommended treatment, and of any reasonable alternative or variant treatment’ (para 87). Accordingly, provision of information about alternative treatments is fundamental to the duty of consent. But, the meaning of a ‘reasonable alternative’ has been hotly debated. This debate engages a central question in legal and political philosophy: what is ‘reasonable’?

The notion of being reasonable is commonly anthropomorphised as a ‘reasonable person’. Being reasonable, then, is being able to justify an action or proposal to this reasonable person. For instance, in order for treatment B to be regarded as a reasonable alternative to treatment A, the justification for—the argument in favour of—treatment B must be acceptable to the reasonable person. If the justificatory argument—the logical relationship of premises leading to a certain conclusion—is not acceptable to the reasonable person, then treatment B would be unreasonable.

The critical issue is the identity of this reasonable person. This issue is critical because justifications that might be acceptable to one audience of persons—one constituency—may not be acceptable to others. So, it is necessary to know to whom the justification has to be provided. It has been long-established that a doctor’s action is reasonable if this action is acceptable to a body of that doctor’s professional peers. This legal principle is commonly referred to as the Bolam test. The principle is grounded in sociological theory that any profession involves certain unique knowledge and skills such only the members of that profession—the professionals—can decide correct practice. Thus, per Bolam, the ‘reasonable person’ is a constituency of reasonable doctors—the peers of the patient’s treating-doctor.

Notably, the Bolam test does not require the reasonable doctor-constituency to include all peers of the treating-doctor. The law acknowledges differences in professional opinion. Accordingly, it requires the reasonable doctor to comprise one body of opinion—one constituency only—within the medical profession. Provided that the logic of the justificatory argument that was acceptable to this constituency was not flawed, the existence of other bodies of logical opinion would not render the treating-doctor’s action to be unreasonable. Thus, the law allows the existence of a plurality of reasonable doctors.

Until Montgomery, the ‘reasonable doctor’ standard applied to all aspects of medical practice, including consent. In Montgomery, an obstetrician had not informed a pregnant patient of certain risks of vaginal delivery; and this omission was acceptable to a group of the obstetrician’s peers, that is, the omission passed the reasonable doctor (Bolam) test. But, the Supreme Court rejected the Bolam test in this situation. Instead, it inquired whether the omission was acceptable to reasonable person in the pregnant woman’s position. In doing so, the Supreme Court shifted the identity of the reasonable person—the one to whom justification had to be provided—from the doctor to the patient.

Although Montgomery carved out an important role for the reasonable patient, the jurisdiction of this reasonable patient remained unclear: did it pertain to the disclosure of risks only; or did it extend to the selection of alternatives, too? In McCulloch, the Supreme Court clarifies that the reasonable patient’s jurisdiction covers risk-disclosure only. The selection of reasonable alternatives—treatments regarded as ‘clinically appropriate’ or ‘clinically suitable’—remains in the reasonable doctor’s province; to be assessed by the venerable Bolam test.

The Supreme Court’s reliance on reasonable doctors for identifying reasonable treatments is in keeping with the sociological conception of professionalism. Yet, it could be argued that the McCulloch judgment is unfair; because patients have unequal opportunities to healthcare through no fault of their own. For example, consider that an operation can be done by open surgery or by laparoscopy. There are two groups of surgeons, each of whom prefers one approach; and neither is illogical. Now, if the treating-surgeon offers open surgery only, then the patient has lost the opportunity for laparoscopic surgery that she, herself, might have preferred. Yet, the patient has no grounds for complaint.

What is the solution? It is insightful to revisit Montgomery. Although Montgomery did not explicitly discuss reasonable alternative treatments, a ‘test of availability’ has been induced from this judgment. As per this test of availability, reasonable alternatives include treatments that would be acceptable to all groups of doctors in the relevant specialty; rather than alternatives that are acceptable to the treating-doctor and concurring colleagues only. This test of availability is theoretically sound and fair, but it does pose considerable practical difficulties. In McCulloch, the Supreme Court explicitly rejects this test of availability, on the basis of the practical difficulties. It is likely that the medical profession, and indemnifying organisations, will welcome McCulloch. But, champions of health equality are likely to protest that justice has not been done.

Author: Abeezar I Sarela

Affiliations: Department of Surgery, The Leeds Teaching Hospitals NHS Trust

Competing interests: None declared

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