McCulloch v Forth Valley Health Board [2023] UKSC 26: Hello Bolam, The Court's Old Friend

In 2015, in the landmark decision of Montgomery v Lanarkshire Health Board,1 the Supreme Court declared that in respect of informed consent, ‘there is no need to perpetuate the application of the Bolam test’.2 Their Lordships held accordingly that a healthcare professional is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. They then outlined a patient-centred test for assessing whether a risk was material and required disclosure, which was whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. However, Lords Kerr and Reed left open the question of when an alternative treatment would be considered ‘reasonable’ requiring disclosure. In subsequent cases, the courts closed this gap by falling back on their old friend, Bolam.3 This reversion to Bolam has been confirmed in the Supreme Court’s recent decision of McCulloch v Forth Valley Health Board.4

This commentary begins by setting out the Supreme Court’s decision in McCulloch on the question of the standard to be applied when determining if an alternative treatment is reasonable and thus requires disclosure. Lords Hamblen and Burrows claimed that their approach in McCulloch was consistent with Montgomery, but I analyse why it is not by reference to the six reasons provided in support of their decision. I then proceed to identify the intersection these different tests create between the decisions in McCulloch, Bolitho,5 and Montgomery which risks eroding the patient-centred approach to risk disclosure outlined in Montgomery.