About this case:

• Citation:
  [2023] UKSC 26
• Judgment:
  External link
• Court:
  UK Supreme Court

Jennifer McCulloch, wife of the late Neil McCulloch, and other members of her family alleged that Mr McCulloch’s death was caused by the negligence of a doctor employed by the respondent, Dr Labinjoh, who ought to have advised the deceased of the option of treatment with a non-steroidal anti-inflammatory drug (NSAID).

The appeal was heard by the President of the Supreme Court, Lord Reed, together with the Deputy President, Lord Hodge, and Lords Kitchin, Hamblen, and Burrows.

Duty to discuss

On 23 March 2012 Mr McCulloch, aged 39, was admitted to the Forth Valley Royal Hospital complaining of chest pains, nausea and vomiting. Dr Labinjoh, who was a consultant cardiologist at the hospital, was asked to review an echocardiogram performed on him, and concluded that his presentation did not fit with a standard diagnosis of pericarditis, an inflammation close to the heart. During the next few days, Mr McCulloch’s condition improved and on 30 March he was discharged having been given antibiotics.

Mr McCulloch was readmitted to hospital on 1 April with similar complaints to his previous admission. Dr Labinjoh was asked to assist in interpreting a third echocardiogram, which she did not consider was sufficiently different from the first two as to give cause for concern. She then visited him in the Acute Admissions Unit, where he denied having further chest pain. Mr McCulloch was discharged again on 6 April and died the following day after suffering a cardiac arrest at home.

The expert evidence indicated that, while some doctors would have prescribed NSAIDs to Mr McCulloch, there was also a responsible body of medical opinion that supported Dr Labinjoh’s approach given that Mr McCulloch was not in pain and there was no clear diagnosis of pericarditis. The Lord Ordinary therefore rejected the appellants’ argument that Dr Labinjoh had a duty to discuss the possibility of using NSAIDs to treat him.

It was held by the Inner House that the Lord Ordinary had applied the correct legal test, which was the “professional practice test” as found in Hunter v Hanley (1955). The appellants argued that this was not the correct legal test to apply in the circumstances, and thus the Inner House and the Lord Ordinary had erred in law.

Defensive medicine

In a joint opinion with which the other judges agreed, Lord Hamblen and Lord Burrows said of the correct legal test: “On the facts of this case, as Dr Labinjoh took the view that prescribing NSAIDs was not a reasonable alternative treatment because Mr McCulloch had no relevant pain and there was no clear diagnosis of pericarditis and, because that view was supported by a responsible body of medical opinion, there was no breach of the duty of care to inform required by Montgomery v Lanarkshire Health Board (2015). There was therefore no error of law made by the lower courts and there is no basis for going behind their decision reached on the evidence that Dr Labinjoh was not negligent.”

Explaining this finding further, they said: “In line with the distinction drawn in Montgomery between the exercise of professional skill and judgment and the court-imposed duty of care to inform, the determination of what are reasonable alternative treatments clearly falls within the former and ought not to be undermined by a legal test that overrides professional judgment. In other words, deciding what are the reasonable alternative treatments is an exercise of professional skill and judgment.”

They continued: “For this to be a matter to be determined after the event by the court would create real practical difficulties for a doctor. A doctor cannot foresee what a court might thereafter make of the matter in the light of competing bodies of expert evidence viewed, as Roddy Dunlop KC for the GMC put it, through a ‘retrospectoscope’. We would have concerns that a consequence would be defensive medicine with the doctor advising on all possible alternative treatment options, however numerous or clinically inappropriate they may be.”

The judges concluded: “We accept that discussions with the patient, so that one has a more complete picture of the patient and of his or her medical history, may lead to an expansion or restriction of the reasonable alternative treatments. But in our view, once the doctor, applying the professional practice test, has a range of reasonable alternative treatments, the patient should be informed of all of them. It would cause uncertainty if the doctor had to qualify which reasonable alternative treatments the patient should be informed about by asking which of the reasonable alternatives it was reasonable for that particular patient to be informed about.”

The appeal was therefore refused.