A doctor must discuss all reasonable alternative treatment options with the patient, according to the Supreme Court in Montgomery v Lanarkshire Health Board. So what must be discussed, and if the doctor fails to offer a reasonable alternative will the patient automatically succeed? The recent decision in Britten v Tayside Health Board demonstrates how the courts address those questions.
Mr Britten suffered from bipolar disorder for which he took lithium. In January 2001 he was diagnosed with acute anterior uveitis in the left eye. He was successfully treated with steroid eye drops. The anterior uveitis reoccurred in February 2003 and in January 2005. He was again treated with steroid eye drops.
At a review appointment on 26 January 2005 Mr Britten’s vision had significantly worsened. He was diagnosed with pan-uveitis in the left eye, a serious condition which could result in permanent loss of vision. Steroid eye drops were no longer sufficient.
One alternative was oral steroids. Unfortunately this carried a risk of psychosis. This risk was discussed with Mr Britten. He accepted the risks and agreed to the treatment.
Another alternative was a steroid injection. That carried a lower risk of an adverse psychiatric event. Mr Britten was not told that steroid injections were an option.
Unfortunately Mr Britten became delusional and suffered a relapse of his bipolar disorder. He was admitted to hospital, where he was an in-patient for eight weeks.
Mr Britten alleged his treating doctors breached their duty of care by failing to advise of all the alternative treatment options. Sheriff Collins QC found that there had been a breach of duty. However, Mr Britten failed on causation: had he been told of the options, he would still have opted for treatment by oral steroids.
The sheriff considered the importance of treatment options in the light of Montgomery. The Supreme Court had held that a doctor has a duty to make the patient aware of “all reasonable alternative or variant treatments”. How should the doctor approach that discussion?
The sheriff’s view was that the discussion is to be a “dynamic and interactive” process. A patient’s initial position of wanting the most efficacious treatment may change upon hearing of the alternatives and their risks and benefits. A doctor should not accept the response of “you decide, doctor” unless that response is made clearly and unequivocally.
It is the doctor’s job to explain the alternatives “whether the patient wants to hear them or not”. It might be that a patient maintains their initial view. But they still need to hear the alternatives.
Twenty months on from the decision in Montgomery, its effects are yet to be fully worked through. Even where a patient is reluctant to hear of alternative treatments they still need to be told – but their reluctance might then be a basis for them failing on causation.