The duty to inform of possible treatments

An update written by Dr Anindo Banerjee, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

The issue: What treatments, other than the one recommended by the treating clinician, are required by law to be discussed with the patient? Mr Robert Wheeler previously discussed the issues of consent and disclosure in his post of July 2023 entitled Consent: Selecting reasonable alternatives for your patient.

The context: In the landmark case of Montgomery v Lanarkshire Health Board[1] the Supreme Court addressed the issue of what information must be provided to the patient by the doctor when discussing the risks and benefits of any proposed treatment. The fundamental principle is that “respect must be shown for the right of patients to decide on the risks to their health which they are willing to run”[2]. “The doctor is under a duty to take reasonable care to ensure the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments”[3]. The risks to be disclosed to the patient are those which the patient, not the doctor, would judge to be significant. The question placed before the Supreme Court was whether the treatment options offered to a patient should be determined by the doctor's professional judgment, or the patient's judgment of what are reasonable treatment options.

The Case: Mr McCulloch was admitted to the defendant hospital acutely unwell with severe pleuritic chest pain, nausea and vomiting. There was a pericardial effusion, and peritoneal and portal hepatic fluid. Treatment was commenced with antibiotics and intravenous fluids. Despite treatment, he deteriorated and was intubated and ventilated on ICU for 2 to 3 days. The patient’s echocardiogram was reviewed by a Consultant Cardiologist. The history was of weight loss for several months, with more recent vomiting, abdominal pain, fever, hypotension and pleuritic chest pain. There was anaemia, a C-reactive protein of 40 and no signs of pericardial tamponade. The Cardiologist felt the presentation did not fit with a diagnosis of pericarditis. Over the next few days the patient improved and was discharged.

Mr McCulloch was readmitted two days later with central pleuritic chest pain and was treated with intravenous antibiotics and fluids. Mr McCulloch became mobile, and pain free with no signs of cardiac failure. The echocardiogram was unchanged, and so pericardiocentesis was not performed. The patient had no chest pain and no clear diagnosis of pericarditis, so the Cardiologist felt that in her professional judgment it was not appropriate to offer non-steroidal anti-inflammatory drug therapy. The patient’s condition improved, and he was discharged three days later. Twenty-four hours later the patient suffered a cardiac arrest and died.

The judgment: The expert evidence suggested that whereas clinical experience suggests that non-steroidal anti-inflammatory drug treatment of pericarditis improves the inflammation and reduces the pericardial effusion, there is no trial data confirming the efficacy of this approach. The Supreme Court concluded that the correct legal test when determining what constitutes a reasonable possible option for treatment is the “professional practice test” found in Bolam v Friern Hospital[4], ie, “a doctor is not negligent if he acts in accordance with a practice accepted as proper by a responsible body of medical (professionals) skilled in that art”[5]. The Court stated that “the narrowing down from possible alternative treatments to reasonable alternative treatments is an exercise of clinical judgment”[6], but once this narrowing is performed, all the treatment options judged reasonable by the Doctor must be disclosed[7].

What this means: In deciding what treatments to offer a patient, Clinicians should use their clinical judgment to determine which options are reasonable in their professional opinion. Clinicians are not compelled to offer treatments that they do not consider appropriate or indicated, even if other Clinicians would offer that treatment, as long as the treating Clinician’s view is supported by a reasonable body of professional opinion. All the options considered reasonable by the treating Clinician should be disclosed to the patient, who can then make a reasoned decision regarding which treatment option they are prepared to accept. Where the patient specifically insists that the options are not disclosed, the Clinician is not mandated to disclose them. The Clinician is not mandated to discuss or offer treatments that they do not consider reasonable in their professional judgment, even if other Clinicians would offer that treatment. Of course, the Clinician must carefully document the reasoning involved in the decision to offer and not offer treatments in the patient’s records.

Dr Anindo K. Banerjee
Department of clinical law
May 2024

[1] [2015] UKSC 11

[2] [2015] UKSC 11, 2

[3] [2015] UKSC 11, 87

[4] [2023] UKSC 26, 56

[5] [1957] 1 WLR 582, 587

[6] [2023] UKSC 26, 57

[7] [2023] UKSC 26, 58