Duty of care, negligence, material risk and reasonable alternatives

• Distinguish a poor outcome from actionable clinical negligence.
• Explain the relationship between duty, breach, causation and harm.
• Apply the modern approach to material risks and reasonable alternatives.
• Understand the significance and limits of Montgomery and McCulloch.
• Recognise how documentation and shared decision-making support defensible practice.

Clinical negligence is not simply “something went wrong”. In broad terms it requires a duty of care, breach of the applicable standard, causation and actionable harm. Professional criticism, complaint findings and negligence may overlap, but they are not interchangeable conclusions.

A duty of care is commonly established in clinical relationships. The contested questions are usually whether the standard was breached, whether that breach caused the injury, and whether compensable harm resulted. Each element matters: a breach without causative harm is not the same claim as harm caused by reasonable care.

Diagnosis and treatment choices frequently involve professional skill and judgement. Courts assess whether the professional approach met the applicable standard, considering responsible professional practice and whether the reasoning withstands logical analysis. Professional guidance and evidence may inform that assessment but do not mechanically determine legal liability.

Montgomery v Lanarkshire Health Board established a patient-centred duty to take reasonable care to ensure the patient is aware of material risks of recommended treatment and reasonable alternatives. Materiality is not determined solely by statistical frequency; the significance of a risk to the particular patient matters.

McCulloch v Forth Valley Health Board clarified that identifying which alternative treatments are reasonable or clinically appropriate involves professional skill and judgement. Once an alternative is a reasonable option, the patient-centred duty to discuss material information applies. The judgment should not be used as permission to withhold options merely because a clinician personally prefers another approach.

A meaningful discussion may include taking no action, delaying intervention or conservative management where these are reasonable choices. The relevant comparison is not simply “treatment A versus treatment B”, but the range of realistic options for that individual.

Risk communication

Avoid both information dumping and selective reassurance. Explain the nature and seriousness of important harms, uncertainty, expected benefits and alternatives in a way the patient can understand. Ask what outcomes matter most to them and whether a low-probability harm would be especially significant in their circumstances.

Documentation and causation

A good record of the decision-making conversation may be important evidence, but documentation cannot cure an inadequate discussion. Conversely, the absence of perfect notes does not automatically prove the conversation did not occur. Records should capture material dialogue rather than a generic phrase such as “risks explained”.

Learning from adverse outcomes

After harm, do not jump immediately to legal labels. Address the patient’s immediate needs, be open and candid, preserve records, report incidents appropriately and seek advice if personal legal or regulatory exposure is possible. Clinical learning and legal analysis can proceed in parallel without conflating their purposes.

Practical decision framework

Ask: What standard of care applies? What reasonable options exist? What risks are material to this patient? What uncertainties should be explained? What did the patient value or prefer? Was the choice voluntary and informed? If harm occurred, what is known about causation rather than merely temporal association?

Source anchors

• Montgomery v Lanarkshire Health Board [2015] UKSC 11
• McCulloch v Forth Valley Health Board [2023] UKSC 26
• GMC Decision making and consent