L&M Medilaw’s Elizabeth Rose and Craig Christie assess the UK Supreme Court’s decision in McCulloch v Forth Valley Health Board and the impact of the decision on one’s consent to medical treatment.
The UK Supreme Court has finally answered the question on everyone’s lips since the landmark decision in Montgomery v Lanarkshire Health Board: what legal test should be applied to the assessment as to whether an alternative treatment is reasonable and requires to be discussed with a patient?
The answer, “the professional practice test” under Hunter / Bolam.
The case was an appeal from the Inner House concerning the death of Mr Neil McCulloch who unfortunately suffered a cardiac arrest caused by cardiac tamponade. Between March and April 2012, Mr McCulloch was admitted to Forth Valley Royal Hospital numerous times with chest pain, nausea, and vomiting. After investigations of his symptoms, including three echocardiograms, the treating consultant, Dr Labinjoh, during a visit on the Acute Admissions Unit, noted his condition was improving and that he had no chest pain. She considered there was no clear diagnosis for pericarditis and therefore decided against prescribing non-steroidal anti-inflammatory drugs (“NSAIDs”). Mr McCulloch was later discharged and died a day later.
Mr McCulloch’s widow and family brought a claim for damages stating that, amongst other things, Dr Labinjoh had breached her duty of care under Montgomery to advise Mr McCulloch that NSAIDs were an alternative treatment. Had he been advised of this, he would have taken an NSAID and survived.
The Health Board argued that the applicable test was Hunter / Bolam and while some doctors would have advised of and prescribed NSAID in the circumstances, there was a reasonable body of medical opinion that supported Dr Labinjoh’s decision.
Surprisingly, the Supreme Court considered only two decisions in their assessment of the case: Montgomery and Duce v Worcestershire Acute Hospitals NHS Trust [2018] PIQR P18.
In Montgomery, the Supreme Court made a “fundamental distinction” between a doctor’s role in 1) assessing potential investigatory or treatment options; and 2) their role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury involved. These were two separate duties of care where Hunter / Bolam applied to (1); and the test applicable to (2) was that stated in para. 87:
“The doctor 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 Court then noted the decision in Duce which confirmed this distinction. Here, the Court of Appeal confirmed that what risks are associated with a certain treatment is a matter for medical professionals; and whether the patient should be told about such risks is a matter for the court.
The Justices held that the applicable legal test to determine what is a “reasonable alternative treatment” was the “professional practice test”. They outlined six reasons:
For these reasons, the family’s appeal was dismissed.
Comment
The duty to disclose has now gone from a patient-centric haven to having medical paternalism burst back on to the scene. Montgomery was designed to put decisions about medical treatment firmly back in the patient’s hands as a reflection of not only societal changes in the provision of medicine and access to information online, but also the fact that patients are regarded as, “persons holding rights, rather than passive recipients of the care of the medical profession”. It seems the Supreme Court now considers that patients still need to be partly passive…
Levy & McRae is happy to announce we will be joining the Legal Netlink Alliance’s Global Meeting in #Paris, June 15-18.
Meeting friends and partners from 35 firms across 20 countries to reinforce the common values that unite us and learn from each other is an extraordinary opportunity we are genuinely excited about.
Our Chairman, Bill Macreath will be representing the firm. The conference in Paris follows last year’s event in Glasgow which we hosted. We very much look forward to catching up with our friends and partners in LNA whom we have been members of for 23 years’.
#linkingvalues
Our client’s conviction for a sexual offence, which was imposed after a summary trial at Edinburgh Sheriff Court, has been overturned and quashed by the Sheriff Appeal Court in Scotland, as per a recent decision. Our firm’s persistence in submitting CCTV footage for the Appeal Court to review was crucial in reaching this decision.
The trial took place on 11 July 2022. Following evidence, our client was found guilty as libelled. Submissions were made by Andrew Seggie, defending, that in the overall context the touching could not be seen to be sexual given that the accused had no prior contact with the complainer.
An application for a Stated Case was lodged timeously. This is the process whereby the Sheriff provides a written account as to the reasons for convicting the accused. Once received, after a period of adjustments, the Appeal against conviction and sentence was lodged with the Sheriff Appeal Court. The court initially “sifts” through all appeals to determine whether the appeal is of sufficient substance in law to merit an appeal hearing. At this stage the appeal was refused with the reasons given by the presiding Sheriff being:
At this stage we consulted further with Senior Counsel and consequently lodged a further appeal to the Second Sift. At this stage we took the step of seeking to lodge the CCTV footage from the original trial to assist the appeal process.
Lodging such evidence was not without its difficulties as it is the norm at this stage for the appeal process to focus solely on the Stated Case written material. We were, however, successful in doing so.
On 21 March 2023, the Second Sift allowed the appeal to proceed to a Hearing on the basis that “on viewing the CCTV, the appeal is arguable”.
On 18 April 2023, the Appeal Hearing took place. Edward Targowski KC was instructed to represent our client. After hearing submissions, including viewing of the CCTV evidence, the Appeal Court Sheriffs quashed the conviction and sentence on the basis that the Sheriff at trial had “erred in their failure to take into account all relevant circumstances” and thus sustained the appeal.
Conclusion
This was a particularly anxious matter for the accused, as it would be for any person faced with such an allegation. The conviction had been widely reported and we were pleased to see the quashing of the conviction also being covered by the media.
At Levy and McRae we tirelessly represent every client who entrusts us with the crucially important role of protecting their liberty and reputation. We will pursue every route and remedy available to us, as evidenced in the successful outcome achieved in this instance.
We have been instructed to look after members of our longstanding clients, the Scottish Police Federation, to pursue claims on behalf of police officers over the ‘Clean Shaven’ policy implemented in their departments. Our Head of Employment, Amanda Buchanan, speaking on BBC Scotland, said that protecting employees was a very important and legitimate aim but questioned the proportionality of the policy. We will continue to fight hard to represent their interests.
https://www.bbc.co.uk/news/uk-scotland-65622474
We were very pleased to help Joanna Cherry MP last week in her successful discrimination case against The Stand Comedy Club, in which she was represented by our senior partner, David McKie, working closely with Aidan O’Neill KC who produced a comprehensive opinion on the Equality Act. We were particularly glad that Joanna’s pragmatism and wish to resolve the case as quickly as possible was met with such a positive response from The Stand. This case proved that a focused letter with supporting material on the law can lead to early, quick and amicable resolutions, limiting costs for all. While the subject matter no doubt will continue to be debated, the case showed the importance of the law being effective in its practical implementation. It also proved how legal disputes, when properly focused, don’t necessarily need to be fractured or protracted and that competing views and disputes around them can continue to be aired and debated respectfully when the Equality Act is responsibly observed.
SNP MP threatens legal action against comedy club after show cancellation
Stand comedy club apologises and U-turns on Joanna Cherry show ban
This week, Levy & McRae were delighted to exhibit and support the Scottish Land and Estates (SLE) conference held at the Assembly Rooms in Edinburgh. With a strong commitment to the rural economy, we serve a variety of interests in the sector, including sporting, agricultural, property, and local businesses.
Our senior partner, David McKie, and Olivia Robertson from our real estate team represented the firm at the event. The conference drew a large, dedicated crowd, emphasizing SLE’s role as a major voice for rural business in Scotland.
David McKie commented, “We have been proud SLE members and supporters of their conference for many years. It was a pleasure again to see and catch up with so many attendees, as well as our fellow exhibitors who represent a wide portfolio of businesses supporting Scotland’s vital rural economy.”
Senior partner David McKie has questioned the proposal to abolish the Not Proven verdict announced today by the Scottish government and is quoted extensively in the media:
David commented:
“The ‘not proven’ verdict has been a vital cornerstone of the Scottish justice system for centuries. It is grounded in ensuring a fundamental pillar of the trial process – that the Crown proves its case beyond reasonable doubt.
“I see no reason to abolish the verdict and am concerned at what appears a further erosion of the rights of an accused person in this country. A judge or a jury is perfectly capable of understanding the distinction in each case and to reach a verdict based on the unique circumstances they face. I am not convinced this will do anything to help victims or complainers at all.”
At Levy and McRae, we are pleased to announce the launch of our brand new website, designed to reflect our commitment to excellence and showcase our expertise in niche litigation law in Scotland. As a dedicated litigation law firm, we understand the importance of evolving with the times and staying on the cutting edge of legal developments. With this in mind, our new website is more than just a digital makeover; it’s a step forward in our mission to better serve our clients and communicate our expertise in a digital-first world.
Our new website features a clean, modern design that is both aesthetically pleasing and user-friendly. It captures our expert-led offering to our clients, delivered in an understated, confidential and confident manner.
One of the key features of our new online strategy will be the expanded and updated resources section. We will create informative articles and guides, addressing various aspects of niche litigation law in Scotland. This wealth of information, crafted by our experienced lawyers, will be beneficial to individuals and businesses alike as they navigate the complex world of litigation.
Our updates will also serve as a hub for our clients and the broader legal community to stay informed and engaged with the world of niche litigation law in Scotland.
We will also be developing a new case studies section. This area of the website will highlight some of the landmark cases we have been involved in, our most notable successes and achievements in the field of niche litigation law. By showcasing these cases, we aim to demonstrate our expertise and the value we bring to our clients, while also providing a more in-depth understanding of the litigation process for those less familiar with it.
Our new website also features a streamlined contact page, making it easier than ever for clients and prospective clients to get in touch with us. We know that litigation can be a daunting process, and we want to ensure that reaching out to our team is as simple and stress-free as possible. Whether you need advice or wish to discuss potential representation, our experienced solicitors are ready to assist.
In conclusion, our new website represents the next chapter in Levy and McRae’s story. We are thrilled to present this new online platform to better serve our clients, showcase our expertise, and our prominent positioning in the Scottish legal landscape. We invite you to explore our new website and discover for yourself the range of resources, insights, and expertise that we offer.
We look forward to continuing to serve our clients and the wider legal community with dedication, excellence, and a commitment to the very best outcomes for those we have the privilege to represent.
Levy & McRae’s Criminal Law Department continues to go from strength to strength with the incorporation of another top private criminal law team. Solicitor-Advocate Neil Hay brings with him his core legal team of Associate Solicitor Andrew Seggie and Legal Team PA Michelle McKinnon from one of Scotland’s foremost private criminal law firms. The move is part of Levy & McRae’s ongoing commitment to delivering the highest client service. The new team will be Edinburgh-based but will work across the whole of Scotland and throughout the United Kingdom. The hire also means that the firm has a stronger presence in London where they hope to extend their links further.
A specialist in private criminal law, Neil Hay has a long professional association with the firm that goes back almost 25 years and has worked in partnership with the Levy & McRae on a number of cases. He specialises in all aspects of criminal law, including complex regulatory crime, fraud and financial crime, historical allegations and road traffic cases; he is particularly highly regarded for his expertise in defending serious sexual and domestic crime cases. Neil has an extensive high-net-worth individual caseload and is trusted by referral firms from across the UK, including magic circle firms, to handle some of the most complex and demanding reputational cases in and out of court – for individuals, organisations and corporations alike.
Andrew Seggie specialises in all areas of criminal law including domestic abuse offences, sexual offences, assault, offences under the Misuse of Drugs Act, road traffic offences and proceedings brought under the Proceeds of Crime Act. Like Neil too, Andrew’s work often involves the most challenging cross-jurisdictional matters and historical allegations.
The firm also announced the promotion of Ray Gribben to Legal Director.
David McKie, Senior Partner, said: ‘I am delighted to welcome Neil and his team to Levy & McRae. Our firm has a long history of undertaking high quality criminal defence work and Neil’s reputation is exemplary in that field. I am particularly delighted too that we are opening in Edinburgh for the first time I’d like to congratulate Ray too on his well deserved promotion’
Neil Hay said: ‘It is a great pleasure to join the team at Levy & McRae. It is a firm I have known and admired for many years and look forward to developing my practice in exciting and vibrant legal firm’
We were very proud to see our former senior partner and Scottish litigation giant, Len Murray, feature in the Evening Times. His case, a murder trial with a sentence of capital punishment is now 60 years old, but reminds us of how far the legal profession has come in that relatively short time. The stakes we now fight for are high, but nothing compared with the pressure on Len and his peers who were defending not just liberty, but life. Len Murray’s presence with and influence on the firm cannot be understated. He attracted clients who remain with the firm today and also brought work which have led to the many and diverse streams we see in the firm today. I was fortunate to work with Len when he was a consultant with the firm and he always had time to listen, to counsel – and to ensure my syntax and spelling were immaculate! He has become in recent years one the foremost after dinner speakers in the country and a world leading authority and speaker on Robert Burns.
