Civil Litigation Weekly Updates – 31st July 2023
Our Weekly round up of cases from the Civil Litigation team
THE SUPREME COURT RE-EXAMINES MONTGOMERY
The Supreme Court has re-visited the decision in Montgomery in relation to the correct test to apply when a medical professional is advising a patient as to treatment options. The Supreme Court has unanimously confirmed that the correct legal test is, in fact, the Bolam test.
The Claimant’s widow brought a claim alleging that Mr McCullough ought to have been advised of the option of treatment with a non-steroidal anti-inflammatory drug (“NSAID”) for pericarditis, when he was re-admitted complaining of recurrence of chest pain, that Mr McCullough would have taken the NSAID and, had he done so, he would not have died from a cardiac arrest the day after he was discharged. The lower courts held that the “professional practice test”, i.e. the Bolam test, applied and accepted the Defendant’s evidence that there was a responsible body of opinion that supported the clinician’s approach not to suggest a NSAID, such that the claim failed. The Claimant appealed on the basis that the wrong legal test had been applied.
The issue before the court was the correct legal test to be applied to the assessment as to whether an alternative treatment is reasonable and requires to be discussed with the patient and, accordingly, whether the doctor fell below the required standard of reasonable care by failing to make a patient aware of an alternative treatment, notwithstanding that doctor’s opinion that such treatment was not reasonable (an opinion supported by a responsible body of medical opinion). In doing so, the Supreme Court considered that it was being asked to explain further what was meant by paragraph 87 of Montgomery, namely that the doctor (emphasis added):
“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 Supreme Court held that the correct legal test to be applied to the question of what constitutes a “reasonable alternative treatment” is the professional practice test. A helpful hypothetical example was provided to illustrate the this (paragraph 57). A doctor will first seek to provide a diagnosis, in respect of which there are ten possible treatment options, and all of which would be regarded as such by a responsible body of medical opinion. The doctor, exercising their clinical judgment, and supported by a responsible body of medical opinion, decides that only four of them are reasonable. The doctor is not negligent by failing to inform the patient about the other six possible options; ‘the narrowing down from possible alternative treatment options to reasonable alternative treatment options is an exercise of clinical judgment to which the professional practice test should be applied. The duty of reasonable care would then require the doctor to inform the patient not only of the treatment option that the doctor is recommending but also of the other three reasonable alternative options… the doctor’s duty of care, in line with Montgomery, is to inform the patient of all reasonable treatment options applying the professional practice test”.
The Court considered that this was an application of Montgomery, and the distinction drawn between the exercise of professional skill and judgment and the court-imposed duty of care to inform. The Court also considered this interpretation to be consistent with the two-stage test in Duce; the identification of which treatments are reasonable alternatives is as much a matter falling within professional judgment as the identification of risks associated with treatment, such that the former should be treated in the same way as the latter in Duce. A number of other reasons were provided by the Court, including that it was unlikely to be in the patient’s best interests to require a doctor to outline the risks of all possible alternative treatments, even those considered not to be reasonable.
McCulloch has perhaps provided clarity, but it is undoubtedly going to make claims easier to defend. If a defendant can provide evidence of a body of medical opinion that does not consider the “possible” alternative treatment in question to be a reasonable alternative, the claim is unlikely to be successful, given that, per Bolitho, it will probably only be a rare case that a professional opinion is rejected for being incapable of withstanding logical analysis.
The full judgment can be accessed here.
 Montgomery v Lanarkshire Health Board  UKSC 11
 Bolam v Friern Hospital Management Committee  1 WLR 582
 Duce v Worcestershire Acute Hospitals NHS Trust  EWCA Civ 1307
 Bolitho v City and Hackney Health Authority  AC 232
WITNESS STATEMENTS DO NOT HAVE TO BE IN A WITNESS’ “FIRST” LANGUAGE (AS LONG AS THEY ARE SUFFICIENTLY FLUENT)
Afzal v UK Insurance Ltd  EWHC 1730 (KB)
Particularly since the rule change in 2020 concerning witness statements, and the decision in Correia v Williams  EWHC 2824 (KB), the language in which a statement is written has been a point of fairly frequent controversy for practitioners. Mr Justice Freedman, however, has recently provided a welcome decision, finding that multi-lingual witnesses may give evidence in English, even if it is not the witness’ first language.
Paragraph 18.1 of PD 32 provides that a witness statement “must in any event be drafted in their own language. In Afzal, the trial judge had held that the Claimant’s failure to give evidence in his own language (Urdu) was a breach of this rule, such that he was unable to prove his case (in a liability-admitted personal injury case). The Claimant duly appealed.
The Court considered the decision in Correia and referred to the Business and Property Courts Guide, the Queen’s Bench Guide , the King’s Bench Guide  and the Chancery Guide. Mr Justice considered that assistance could particularly be derived from the relevant section (paragraph 3.3) of the Business and Property Courts Guide (not referred to in Correia), because it post-dated the aforesaid provision of PD 32:
“A trial witness statement must comply with paras.18.1 and 18.2 of Practice Direction 32, and for that purpose a witness’s own language includes any language in which the witness is sufficiently fluent to give oral evidence (including under cross- examination) if required, and is not limited to a witness’s first or native language.”
The Court found that this pointed “significantly to the correct understanding of the meaning and effect of paragraphs 18.1 and 18.2” and that it is unlikely that a separate regime was intended to apply to the Business and Property Courts. Mr Justice Freedman also considered that this accorded with the purpose of the relevant Practice Direction; the background to it was the concern for those witnesses not proficient with the English language, but that it was not intended that those who were bilingual, or sufficiently fluent in English to give oral evidence including under cross-examination should not be able to give their evidence in English. Accordingly, it was held that the trial judge was wrong to reach the conclusion that the witness statement had to be in the witness’ first language, and it was “highly relevant that the claimant read, understood, conversed and gave instructions in English”. It was said that if there were doubts about whether the claimant was sufficiently fluent, that could have been tested with a view to considering whether the evidence should be excluded, but no such exercise was before the court.
Whilst this is to be seen as a welcome decision, care should still be taken at an early stage to ensure a witness’ proficiency to be able to give evidence, including withstand cross-examination, in English to a sufficient standard. Should there be any doubt, practitioners may wish to err on the side of caution to avoid a situation in which a witness’ fluency is tested in the witness box.
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