Click on your business type in the menu bar below to find specific insurance and funding information for you

Montgomery – Watered Down?

By David Stoker, Senior Underwriter

(Estimated reading time: 3 minutes 45 seconds)

On 12 July 2023, the Supreme Court confirmed in the Scottish case below that the assessment of whether a possible treatment option is a reasonable one is a matter of clinical judgment. In considering Montgomery, there is a duty of care to inform patients only of all reasonable treatments. This should provide some clarity for practitioners in England and Wales as well.

The patient/Pursuer was Neil McCulloch, who died on 7 April 2012 shortly after admission to Forth Valley Royal Hospital (FVRH), having suffered a cardiac arrest at home. The cause of death was pericarditis and pericardial effusion (inflammation of the sac surrounding the heart and a buildup of fluid inside the sac).

He was treated as an inpatient on two separate occasions, with a working diagnosis of pericarditis. He was under the care of a medical team, with assistance from a cardiologist, Dr Labinjoh.

Dr Labinjoh did not discuss treatment with NSAIDs (nonsteroidal anti-inflammatory drugs). NSAIDs are medicines such as Ibuprofen widely used to relieve pain, reduce inflammation and bring down a high temperature. This was a standard treatment for pericarditis, but Dr Labinjoh considered Mr McCulloch was not suffering from this condition before being discharged.

It was argued that this alternative treatment with NSAIDS should have been discussed with the patient, but it wasn’t and that therefore the hospital was negligent.

In the lower courts the Pursuers argued that NSAIDs were a reasonable alternative treatment which ought to have been discussed with the patient, in line with the previous authoritative decision on consent, Montgomery v Lanarkshire Health Board [2015] UKSC 11.

The Defenders argued that the decision on what were reasonable alternative treatments and what should be discussed with the patient came down to the skill and judgment of the doctor, and that their duty of care should be governed by the “professional practice test” of negligence in Hunter v Hanley 1955 SC 200.

The decisions in the Outer and Inner House went in favour of the Defenders. The Pursuers appealed to the Supreme Court. For the family it was argued that the doctor is under a duty to take reasonable care to disclose all reasonable alternative treatments; this ought to consider a range of factors including but not limited to:

  • Alternative treatments that a reasonable person in the patient’s position would be likely to attach significance to in the context of making his or her decision.
  • Alternative treatments that the particular patient would be likely to attach significance to in the context of making such decision.
  • Alternative treatments that the doctor appreciates, or should appreciate, a responsible body of medical opinion would consider reasonable, even though the doctor reasonably elects to recommend a different course of action.

For the Health Board it was argued that the assessment of reasonable alternative treatments is an exercise of professional skill and judgement and is to be judged by the standard Hunter v Hanley test. Therefore, if a doctor is aware of a treatment but opts not to discuss it with the patient, so long as a body of reasonable medical professionals would also have decided not to discuss it, the doctor is under no duty to do so.

“It is important to stress that it is not being suggested that the doctor can simply inform the patient about the treatment option or options that the doctor himself or herself prefers. Rather the doctor’s duty of care, in line with Montgomery, is to inform the patient of all reasonable treatment options applying the professional practice test.”

The Supreme Court held, therefore, that Dr Labinjoh, in exercising her professional expertise, skill and judgment, had decided that NSAIDs were not a reasonable treatment option – and she was supported in this opinion by a reasonable body of medical practitioners. She was not therefore, negligent in failing to discuss this treatment option with Mr McCulloch.

If however she had considered them to be a reasonable treatment, but preferred another course of treatment, then, failing to discuss NSAIDs with him would have been negligent.

The Temple Perspective

This decision should bring some clarity to medical professionals and legal practitioners on the duty to advise on treatment options and the risks associated with them. This is not a dilution of Montgomery but an acknowledgement of the facts in that Dr Labinjoh’s clinical advice was supported by a reasonable body of medical practitioners in not advising NSAIDS as an option in relation to Mr McCulloch’s treatment.

Scottish clinical negligence lawyers who would like to know more about why they should choose Temple or discuss any aspect of ATE insurance or outlay funding, please email or call 01483 514808.

David Stoker, LL.B (Hons)

Senior Underwriter
Read articles by David Stoker, LL.B (Hons)

David Stoker, LL.B (Hons)

David joined Temple in 2015 having previously been an underwriter for another ATE insurance provider for nearly 9 years dealing with all aspects of personal injury work.

David’s experience allows him to undertake a key role in Temple’s ATE insurance personal injury and clinical negligence teams. He also participates in the assessments of delegated schemes that Temple provide with the objective of helping our customers make the most of the products and services Temple has to offer.

David has a LLB honours degree in law and also completed the Legal Practice Course at Guildford College of Law obtaining a commendation. He has worked as a personal injury case handler for 2 firms of solicitors post-graduation before moving into LEI.


Read articles by David Stoker, LL.B (Hons)