Disappointingly clinical. McCulloch and others (appellants) v forth valley health board (respondent) (Scotland) [2023] UKSC 26

In McCulloch v Forth Valley Health Board, the UK Supreme Court decided that whether a medical intervention is a ‘reasonable alternative’ that requires disclosure for the purposes of medical consent is determined according to the professional practice test. As such, it is governed by Bolam rather than the patient-centred approach in Montgomery. Disappointingly, McCulloch is (1) doctrinally inconsistent with the precedent in Montgomery (as well as its underlying philosophy) and (2) moves in a direction with the potential to unravel much of Montgomery’s progress. We consider McCulloch, situating it within the existing law on information disclosure, as well as highlighting some pragmatic concerns over its implications. We argue that the Supreme Court effectively fragments elements of the duty to disclose, in a way that is unnecessary, artificial, and even counterintuitive. Perhaps all is not lost from the patient’s perspective, however. We explore the potential for reconciliation of McCulloch and Montgomery in a way that balances clinical considerations and the patient’s own evaluation of their interests.