What McCulloch decided
McCulloch v Forth Valley Health Board [2023] answered a question Montgomery left open: how do you decide which alternative treatments a patient must be told about? The Supreme Court held that whether a treatment is a reasonable alternative is a matter of professional judgement, assessed by the familiar professional practice test. But once a treatment qualifies as a reasonable alternative, Montgomery takes over: the patient must be informed of it, and of its material risks and benefits, so they can make their own choice.
The facts
Mr McCulloch died after cardiac complications. The claim argued that a doctor should have offered a further treatment, an anti-inflammatory, as an alternative. The doctor's judgement that it was not clinically indicated was supported by a responsible body of opinion, so it was not a reasonable alternative she was obliged to raise. The claim failed, but the framework it set out now governs every consultation.
Why it matters now
McCulloch bolts a second documentation duty onto Montgomery. It is no longer enough to record the risks of the treatment you gave. You must be able to show the reasonable alternatives that existed, that they were discussed, and that the patient chose to proceed anyway. Two tests now run in parallel: professional judgement decides what counts as a reasonable alternative, and the patient-centred standard decides how it must be explained.
What it means for your clinic
In elective aesthetics, this is unusually demanding, because doing nothing is a reasonable alternative to almost every procedure, every time. So is the less invasive option: a skin treatment before filler, filler before surgery, a review before more product. A record that shows the patient was offered nothing-at-all and something-less, and chose to proceed with open eyes, is one of the strongest documents a defence can hold. Its absence is one of the first things a claimant solicitor will notice.
Where this sits in the story
Consent and negligence law did not arrive fully formed. It climbed, case by case. You can watch the whole arc, and see what each judgment added to the burden your records carry, in the interactive timeline. The related cases are linked below.
Watch the standard rise: 1957 to today →
Related: Montgomery · Bolam · Chester v Afshar · Sidaway