Reasonable alternative treatment options in informed consent cases: Bolam persists

The Court of Appeal has today handed down an important Judgment in the case of Sidra Bilal & Hassaan Aziz Malik (Administrators on behalf of the estate of Mukhtar Malik, deceased) v St George’s University Hospitals NHS Foundation Trust [2023] EWCA Civ 605.

Bevan Brittan acted on behalf of the Respondent, St George’s University Hospitals NHS Foundation Trust, and successfully resisted the appeal from a first instance decision of HHJ Peter Blair QC (sitting as a Deputy High Court Judge) dated 12 July 2021.  Counsel in the Appeal were Andrew Post KC of Hailsham Chambers and Matthew Barnes of 1 Crown Office Row.

The Judgment confirms the distinction between two aspects of the clinician’s role in informed consent cases, and the interplay between patient autonomy and a doctor’s discretion when giving advice on treatment options.  Since the Supreme Court decision in the landmark case of Montgomery v Lanarkshire Health Board [2015] UKSC 11, there has remained a residual tension around the role (if any) which Bolam reasonableness (Bolam v Friern Hospital Management Committee [1957] 1 WLR 583) still has within the Montgomery consent framework. The Court of Appeal has provided welcome clarity that the “Bolam test” does indeed still have a role to play in the assessment of what reasonable or alternative treatments should be offered to a patient.     

Background

Mr Malik initially underwent emergency spinal surgery in July 2014 after an MRI revealed severe compression at two locations.  After Mr Malik suffered ongoing complications (numbness and weakness in his left leg and intercostalgia) further multi-level, elective spinal surgery was performed by the Trust in August 2015. The purpose of the surgery was to address Mr Malik’s ongoing leg pain and a newly developed symptom of intercostalgic pain in his back.  Mr Malik disputed that he was suffering from intercostalgia, which was referred to just once in a pre-operative clinic letter from July 2015. 

The case in the High Court

There were no criticisms raised regarding the performance of either surgeries. The case in the High Court was that in July 2015, there was rush to perform surgery and the treating neurosurgeon failed to give Mr Malik reasonable, alternative treatment options to treat his symptoms. 

His Honour Judge Blair KC sitting as a Deputy High Court Judge dismissed the claim in full and made a factual finding that Mr Malik was suffering from acute, serious and debilitating intercostalgic pain.  He found that the expert evidence was such that he could conclude that it was reasonable for the neurosurgeon to offer Mr Malik spinal surgery only, as opposed to also offering alternative options such as waiting to see if there would be spontaneous resolution, a pain management pathway, physiotherapy or nerve root injections.

It was held that the question of what are reasonable, alternative treatment options to give to a patient must be determined by a “competent and respectable body of skilled spinal surgeons… in the context of the parameters and discussion that the claimant had with [the treating neurosurgeon].” Para 93   

The case in the Court of Appeal

The Claimant appealed on the following grounds: 

1. A responsible body of competent and reasonable neurosurgeons would not have offered Mr Malik revision surgery at the T10/T11 level of his thoracic vertebrae in July 2015 in the absence of any enquiry or knowledge about the duration of his associated pain.
2. Mr Malik had not been made aware of reasonable alternative treatments and had not given informed consent to the surgery.
3. Causation had not been proved.

The Appellants argued that the neurosurgeon’s failure to consider the duration of the new symptom of intercostalgia was crucial when assessing the reasonable alternative treatment options that should have been put to Mr Malik.  The argument was put that failing to ask about the duration of the new symptom of intercostalgia was a breach of duty that vitiated the consenting process.  It was argued by the Appellants that the High Court therefore should have found that there was a Bolam breach of duty (no reasonable body of surgeons would have offered the multi-level spinal surgery only) or that there should have been a strict Montgomery analysis (i.e. there was a failure to offer reasonable alternative treatment options).

The Respondent argued that the issue of duration of the intercostalgic pain being a necessity for informed consent was not a pleaded allegation.  As the issue was never pleaded, the treating surgeon and the experts were not given the opportunity to comment on how the failure to ask about the duration of intercostalgic pain impacted the consenting process and the treatment options offered.

The appeal was dismissed on all grounds. The Court of Appeal accepted that the issue of the duration of the pain had not been pleaded and had not been put to the treating neurosurgeon or to the experts. The Judge below was therefore correct to make the finding of fact that Mr Malik had been suffering from acute and terrible pain that had not resolved between July and August 2015.  It was then appropriate for the neurosurgeons to assess the nature and degree of the intercostal pain and what surgery could offer in terms of resolution. The neurosurgical expert for the Respondent properly considered that it was reasonable for the treating neurosurgeon to offer surgery in circumstances where alternative treatment options had either been tried and exhausted or would have been ineffective.

Although the Court of Appeal noted that grounds two and three of the appeal were parasitic on ground one, Lady Justice Nicola Davies (who gave the lead Judgment) provided valuable commentary on how to assess reasonableness in the context of offering alternative treatment options. Her observations are that:

1. The test in Montgomery draws a distinction between two aspects of a clinician’s role: an assessment of the reasonable treatment options available (Bolam) and an assessment of what risks and treatments should be explained to the patient because they are material (Montgomery).
2. “Reasonable” in respect of the assessment of alternative treatment options encapsulates the Bolam approach and therefore it is for a doctor to assess what treatment options are reasonable alternatives in a given case (this is the doctor’s discretion as determined by the experts). The patient’s autonomy becomes relevant when assessing the materiality of the risks of those options which the Court will judge from the patient’s perspective.

Comment

The principle set out in Montgomery is that a doctor 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”.  The question that has to date been unanswered definitively is the role that a doctor’s professional clinical judgement and discretion has in preparing the ‘menu’ of treatment options to put to the patient – in other words, who decides the parameters of the reasonable alternative treatment options?

The impact of this Court of Appeal decision is that the Bolam test is very much still applicable in cases of informed consent where it is alleged that alternative treatments should have been considered.  In order to ensure informed consent has been obtained, the doctor will need to consider and assess what treatment options are reasonable to offer (creating the ‘menu’ of options) and they will then need to explain to a patient the comparative risks and benefits of each of the reasonable treatments ‘on the table’.  The patient must then be allowed to assess the materiality of risk of each of these reasonable alternatives by reference to Montgomery. 

This is an important clarifying statement of the interplay between Bolam and Montgomery in cases where it is pleaded that alternative treatments should have been put to the Claimant. Similar issues are raised in the awaited Supreme Court decision of McCulloch which was heard in May 2023. It will be interesting to see whether the Supreme Court agrees with the Court of Appeal’s analysis.

Emma Powell

Daniel Morris