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Louise Austin School of Law, University of Leicester , Leicester, England Corresponding author: louise.austin@le.ac.uk Search for other works by this author on: Oxford Academic
Medical Law Review, Volume 32, Issue 2, Spring 2024, Pages 264–273, https://doi.org/10.1093/medlaw/fwae013
Published:
09 May 2024
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Louise Austin, McCulloch v Forth Valley Health Board [2023] UKSC 26: Hello Bolam, the court’s old friend, Medical Law Review, Volume 32, Issue 2, Spring 2024, Pages 264–273, https://doi.org/10.1093/medlaw/fwae013
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I. INTRODUCTION
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 circ*mstances 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
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