Bolam Test
Encyclopedia
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law
case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence
cases involving skilled professionals (e.g. doctors): the Bolam test. Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent".
. He was not given any muscle relaxant
, and his body was not restrained during the procedure. He flailed about violently before the procedure was stopped, and he suffered some serious injuries, including fractures of the acetabula. He sued the Committee for compensation. He argued they were negligent for (1) not issuing relaxants (2) not restraining him (3) not warning him about the risks involved.
It is important to note that at this time juries were still being used for tort cases in England and Wales, so the judge's role would be to sum up the law and then leave it for the jury to hold the defendant liable or not.
would in the circumstances. But when a person professes to have professional skills, as doctors do, the standard of care must be higher. "It is just a question of expression," said McNair J.
In this case, the jury delivered a verdict in favour of the defendant hospital. Given the general medical opinions about what was acceptable electro-shock practice, they had not been negligent in the way they carried out the treatment. That passage is quoted very frequently, and has served as the basic rule for professional negligence over the last fifty years.
(between a doctor and patient this can be taken for granted). Second, it must be shown that the duty of care has been breached. This is where the Bolam test is relevant, because falling below the standard of a responsible body of medical men means that person will be considered negligent. But in addition, third it must be shown that there was a causal
link between the breach of duty and harm. And fourth, it must be shown that the harm was not too remote.
The Bolam test does not vary significantly in professional negligence litigation, but it causes greater difficulty for the courts in medical negligence than in claims against, say, a lawyer or an accountant, because of the technical issues involved. The problem is as follows:
All these legal issues can only be addressed by medical opinion
because, by its nature, medical practice has not reached the stage of scientific reliability where such questions can be answered with certainty. In a dispute about a will
, for example, it might be alleged that because a solicitor
delayed implementing a change to an existing bequest
, an intended beneficiary was denied the expected outcome when the testator
unexpectedly died. Here, efficient action by the solicitor changes the will and matches everyone's expectations. The difference between a quantified bequest and no bequest is easy to measure. But it has been difficult for the law to achieve any real degree of consistency in the medical field because assessing whether the standard of care has been met and issues of causation depend to such a marked degree on the opinions of the medical profession itself.
For these purposes, the evidence
produced by the claimant must satisfy the burden of proof which, in a civil case, is the balance of probabilities. Hence, the burden is satisfied and negligence is proved if there is greater than 50% chance that the claim as argued is correct, i.e. the duty was owed and the breach caused the injury. So the question of law is based on assessing the medical chances of recovery. If, given proper treatment, the claimant's chances of avoiding the current level of injury were anything less than 50%, he or she will not be awarded any damages at all. There is no right to damages for the loss of the prospect of recovery if the chance of that recovery was less than probable.
, nurse or other health professional is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners adopt a different practice. In addition, Hedley Byrne & Co. Ltd. v Heller & Partners Ltd.
[1964] AC 465 created the rule of "reasonable reliance" by the claimant on the professional judgment of the defendant.
Because of the nature of the relationship between a medical practitioner and a patient, it is reasonable for the patient to rely on the advice given by the practitioner. Thus, Bolam applies to all the acts and omissions constituting diagnosis
and consequential treatment, and Hedley Byrne applies to all advisory activities involving the communication of diagnosis and prognosis
, giving of advice on both therapeutic and non-therapeutic options for treatment, and disclosure of relevant information to obtain informed consent
.
in the legal system. In cases such as Whitehouse v Jordan the court holds that the doctor was not at fault because he did what other doctors might have done in the same circumstances. Thus, the claimant was brain damaged and that damage was caused by what the doctor did, but the doctor was not legally at fault. In one sense, this may be considered fair to the doctor who did exactly what many other doctors would have done. But the baby's brain damage is just as bad no matter what the cause of it, and it seems unfair that the difference between obtaining damage and being denied any remedy should depend on the court's application of negligence. Many use this type of case to argue in favour of a system of no-fault compensation such as that introduced in New Zealand
in 1972. The question of no-fault compensation in the UK was considered by the Royal Commission on Civil Liability and Compensation for Personal Injury (the Pearson Commission), which reported in 1978. Although the Report was critical of the existing system, its terms of reference prevented it from recommending a comprehensive no-fault scheme. Instead it recommended an extension of the existing social security scheme to give greater assistance to victims of industrial injuries and to include the victims of road accidents. The possible extension of misfeasance in public office to include situations in which potentially dangerous individuals are released into the community complicates the duties of the professions involved. Given that medical professionals are already held out as having more reliable diagnostic and treatment skills, any obvious indifference as to whether those released will cause problems may expose the professionals to a new source of liability (see Mason and Laurie: 2003).
English tort law
English tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case...
case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
cases involving skilled professionals (e.g. doctors): the Bolam test. Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent".
Facts
Mr Bolam was a voluntary patient at mental health institution run by the Friern Hospital Management Committee. He agreed to undergo electro-convulsive therapyHistory of electroconvulsive therapy in the United Kingdom
Electroconvulsive therapy is a controversial psychiatric treatment in which seizures are induced with electricity...
. He was not given any muscle relaxant
Muscle relaxant
A muscle relaxant is a drug which affects skeletal muscle function and decreases the muscle tone. It may be used to alleviate symptoms such as muscle spasms, pain, and hyperreflexia. The term "muscle relaxant" is used to refer to two major therapeutic groups: neuromuscular blockers and spasmolytics...
, and his body was not restrained during the procedure. He flailed about violently before the procedure was stopped, and he suffered some serious injuries, including fractures of the acetabula. He sued the Committee for compensation. He argued they were negligent for (1) not issuing relaxants (2) not restraining him (3) not warning him about the risks involved.
It is important to note that at this time juries were still being used for tort cases in England and Wales, so the judge's role would be to sum up the law and then leave it for the jury to hold the defendant liable or not.
Judgment
McNair J at the first instance noted that expert witnesses had confirmed, much medical opinion was opposed to the use of relaxant drugs, and that manual restraints could sometimes increase the risk of fracture. Moreover, it was the common practice of the profession to not warn patients of the risk of treatment (when it is small) unless they are asked. He held that what was common practice in a particular profession was highly relevant to the standard of care required. A person falls below the appropriate standard, and is negligent, if he fails to do what a reasonable personReasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
would in the circumstances. But when a person professes to have professional skills, as doctors do, the standard of care must be higher. "It is just a question of expression," said McNair J.
"I myself would prefer to put it this way, that he is not guilty of negligenceNegligenceNegligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying:
"I do not believe in anaesthetics. I do not believe in antisepticAntisepticAntiseptics are antimicrobial substances that are applied to living tissue/skin to reduce the possibility of infection, sepsis, or putrefaction...
s. I am going to continue to do my surgery in the way it was done in the eighteenth century." That clearly would be wrong."
In this case, the jury delivered a verdict in favour of the defendant hospital. Given the general medical opinions about what was acceptable electro-shock practice, they had not been negligent in the way they carried out the treatment. That passage is quoted very frequently, and has served as the basic rule for professional negligence over the last fifty years.
Explanation
It is important to remember that the "Bolam test" is just one stage in the fourfold test to determine negligence. First, it must be established that there is a duty of careDuty of care in English law
In English tort law, an individual may be owed a duty of care by another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the duty-ower, to compensate the victim for any losses they incur...
(between a doctor and patient this can be taken for granted). Second, it must be shown that the duty of care has been breached. This is where the Bolam test is relevant, because falling below the standard of a responsible body of medical men means that person will be considered negligent. But in addition, third it must be shown that there was a causal
Causation in English law
Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law....
link between the breach of duty and harm. And fourth, it must be shown that the harm was not too remote.
The Bolam test does not vary significantly in professional negligence litigation, but it causes greater difficulty for the courts in medical negligence than in claims against, say, a lawyer or an accountant, because of the technical issues involved. The problem is as follows:
- The award of damagesDamagesIn law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
in the civil lawCivil law (common law)Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
is intended to compensate the claimant for the loss and damage caused by the relevant defendant. - A person seeks the assistance of a medical practitioner because of an inherent condition which may be physical, psychological, or contain elements of both, e.g. a person may be admitted to hospital with traumatic compression injuries resulting from an industrial or road traffic accident, and exhibit symptoms of shock.
- At this point, the patient may already have a cause of actionCause of actionIn the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
against an employer for failing to properly fence the machine that caused the injuries, or against the driver of a vehicle. If so, that potential defendant will be liable to pay damages for all the injuries caused and the consequential losses. - But suppose that the claimant receives negligent treatment in the hospital. In theory, a second cause of action arises against the medical practitioners and their employers (see vicarious liabilityVicarious liabilityVicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability...
). But the issue of causation is problematic. The court must be able to distinguish between any loss and damage flowing from the two causes. - Damages for the first cause must be valued by assessing what hypothetically perfect treatment would have achieved. This may be a complete recovery at some time in the future, or residual permanent disability represented by a percentage loss of movement in joints, etc.
- In the second action, the court must find that the negligent treatment actually caused a different outcome which is measurably more severe than the first hypothetical outcome. Thus, if the only consequence to the negligent treatment was delay in the recovery time and the outcome ultimately delivered matches the hypothetical perfect outcome, the measure of damages will be limited to the additional pain and suffering, and additional loss of earnings.
- Now substitute a heart attack for the accident. The patient is not entitled to any compensation for injuries arising naturally, but only for those injuries directly attributable to the negligent treatment. The post mortem shows that the patient was going to die no matter what the medical practitioner did but, in this instance, the negligence probably accelerated the inevitable death.
All these legal issues can only be addressed by medical opinion
Opinion
In general, an opinion is a subjective belief, and is the result of emotion or interpretation of facts. An opinion may be supported by an argument, although people may draw opposing opinions from the same set of facts. Opinions rarely change without new arguments being presented...
because, by its nature, medical practice has not reached the stage of scientific reliability where such questions can be answered with certainty. In a dispute about a will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
, for example, it might be alleged that because a solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
delayed implementing a change to an existing bequest
Bequest
A bequest is the act of giving property by will. Strictly, "bequest" is used of personal property, and "devise" of real property. In legal terminology, "bequeath" is a verb form meaning "to make a bequest."...
, an intended beneficiary was denied the expected outcome when the testator
Testator
A testator is a person who has written and executed a last will and testament that is in effect at the time of his/her death. It is any "person who makes a will."-Related terms:...
unexpectedly died. Here, efficient action by the solicitor changes the will and matches everyone's expectations. The difference between a quantified bequest and no bequest is easy to measure. But it has been difficult for the law to achieve any real degree of consistency in the medical field because assessing whether the standard of care has been met and issues of causation depend to such a marked degree on the opinions of the medical profession itself.
For these purposes, the evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
produced by the claimant must satisfy the burden of proof which, in a civil case, is the balance of probabilities. Hence, the burden is satisfied and negligence is proved if there is greater than 50% chance that the claim as argued is correct, i.e. the duty was owed and the breach caused the injury. So the question of law is based on assessing the medical chances of recovery. If, given proper treatment, the claimant's chances of avoiding the current level of injury were anything less than 50%, he or she will not be awarded any damages at all. There is no right to damages for the loss of the prospect of recovery if the chance of that recovery was less than probable.
Legal developments
The law distinguishes between liability flowing from acts and omissions, and liability flowing from misstatements. The Bolam principle addresses the first element and may be formulated as a rule that a doctorPhysician
A physician is a health care provider who practices the profession of medicine, which is concerned with promoting, maintaining or restoring human health through the study, diagnosis, and treatment of disease, injury and other physical and mental impairments...
, nurse or other health professional is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners adopt a different practice. In addition, Hedley Byrne & Co. Ltd. v Heller & Partners Ltd.
Hedley Byrne v. Heller
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 is an English tort law case on pure economic loss, resulting from a negligent misstatement. Prior to the decision, the notion that a party may owe another a duty of care for statements made in reliance had been rejected, with the only...
[1964] AC 465 created the rule of "reasonable reliance" by the claimant on the professional judgment of the defendant.
"Where a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, and a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise."
Because of the nature of the relationship between a medical practitioner and a patient, it is reasonable for the patient to rely on the advice given by the practitioner. Thus, Bolam applies to all the acts and omissions constituting diagnosis
Diagnosis
Diagnosis is the identification of the nature and cause of anything. Diagnosis is used in many different disciplines with variations in the use of logics, analytics, and experience to determine the cause and effect relationships...
and consequential treatment, and Hedley Byrne applies to all advisory activities involving the communication of diagnosis and prognosis
Prognosis
Prognosis is a medical term to describe the likely outcome of an illness.When applied to large statistical populations, prognostic estimates can be very accurate: for example the statement "45% of patients with severe septic shock will die within 28 days" can be made with some confidence, because...
, giving of advice on both therapeutic and non-therapeutic options for treatment, and disclosure of relevant information to obtain informed consent
Informed consent
Informed consent is a phrase often used in law to indicate that the consent a person gives meets certain minimum standards. As a literal matter, in the absence of fraud, it is redundant. An informed consent can be said to have been given based upon a clear appreciation and understanding of the...
.
- Barnett v Chelsea & Kensington Hospital [1968] 1 All ER 1068. Three men attended at the emergency departmentEmergency departmentAn emergency department , also known as accident & emergency , emergency room , emergency ward , or casualty department is a medical treatment facility specialising in acute care of patients who present without prior appointment, either by their own means or by ambulance...
but the casualty officer, who was himself unwell, did not see them, advising that they should go home and call their own doctors. One of the men died some hours later. The post mortem showed arsenical poisoning which was a rare cause of death. Even if the deceased had been examined and admitted for treatment, there was little or no chance that the only effective antidote would have been administered to him in time. Although the hospital had been negligent in failing to examine the men, there was no proof that the deceased's death was caused by that negligence.
- Whitehouse v Jordan [1981] 1 All ER 267: The claimant was a baby who suffered severe brain damage after a difficult birth. The defendant, a senior hospital registrarSpecialist registrarA Specialist Registrar or SpR is a doctor in the United Kingdom and Republic of Ireland who is receiving advanced training in a specialist field of medicine in order eventually to become a consultant...
, was supervising delivery in a high-risk pregnancyPregnancyPregnancy refers to the fertilization and development of one or more offspring, known as a fetus or embryo, in a woman's uterus. In a pregnancy, there can be multiple gestations, as in the case of twins or triplets...
. After the mother had been in labourChildbirthChildbirth is the culmination of a human pregnancy or gestation period with the birth of one or more newborn infants from a woman's uterus...
for 22 hours, the defendant used forcepsForcepsForceps or forcipes are a handheld, hinged instrument used for grasping and holding objects. Forceps are used when fingers are too large to grasp small objects or when many objects need to be held at one time while the hands are used to perform a task. The term 'forceps' is used almost exclusively...
to assist the delivery. The Lords found that the doctor's standard of care did not fall below that of a reasonable doctor in the circumstances and so the baby was awarded no compensation.
- Sidaway v Bethlem Royal Hospital Governors [1985] AC 871: The claimant suffered from pain in her neckNeckThe neck is the part of the body, on many terrestrial or secondarily aquatic vertebrates, that distinguishes the head from the torso or trunk. The adjective signifying "of the neck" is cervical .-Boner anatomy: The cervical spine:The cervical portion of the human spine comprises seven boney...
, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression, but did not include in his explanation the fact that in less than 1% of the cases, the said decompression caused paraplegia. She developed paraplegia after the spinal operation. Rejecting her claim for damages, the court held that consent did not require an elaborate explanation of remote side effects. In dissent, Lord Scarman said that the Bolam principle should not apply to the issue of informed consent and that a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed.
- Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635. The patient presented with symptoms of tuberculosisTuberculosisTuberculosis, MTB, or TB is a common, and in many cases lethal, infectious disease caused by various strains of mycobacteria, usually Mycobacterium tuberculosis. Tuberculosis usually attacks the lungs but can also affect other parts of the body...
but both the consultant physician and the consultant surgeon took the view that Hodgkin's disease, carcinomaCarcinomaCarcinoma is the medical term for the most common type of cancer occurring in humans. Put simply, a carcinoma is a cancer that begins in a tissue that lines the inner or outer surfaces of the body, and that generally arises from cells originating in the endodermal or ectodermal germ layer during...
, and sarcoidosisSarcoidosisSarcoidosis , also called sarcoid, Besnier-Boeck disease or Besnier-Boeck-Schaumann disease, is a disease in which abnormal collections of chronic inflammatory cells form as nodules in multiple organs. The cause of sarcoidosis is unknown...
were also possibilities, the first of which if present would have required remedial steps to be taken in its early stages. Instead of waiting for the results of the sputum tests, the consultants carried out a mediastinoscopyMediastinoscopyMediastinoscopy is a procedure that enables visualization of the contents of the mediastinum, usually for the purpose of obtaining a biopsy. Mediastinoscopy is often used for staging of lymph nodes of lung cancer or for diagnosing other conditions affecting structures in the mediastinum such as...
to get a biopsy. The inherent risk of damage was to the left laryngeal recurrent nerve, even if the operation was properly done. In the event, only tuberculosis was confirmed. Unfortunately, the risk became a reality and the patient suffered a paralysis of the left vocal cord. The decision of the physician and the surgeon to proceed was said by their expert peers to be reasonable in all the circumstances.
- Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909. The extent of the hip injuries to a 13 year-old boy was not diagnosed for five days. By the age of 20 years, there was deformity of the hip joint, restricted mobility and permanent disability. The judge found that even if the diagnosis had been made correctly, there was still a 75% risk of the plaintiff's disability developing, but that the medical staff's breach of duty had turned that risk into an inevitability, thereby denying the plaintiff a 25% chance of a good recovery. Damages included an amount of £11,500 representing 25% of the full value of the damages awardable for the plaintiff's disability. On appeal to the Lords, the question was whether the cause of the injury was the fall or the health authority's negligence in delaying treatment, since if the fall had caused the injury the negligence of the authority was irrelevant in regard to the plaintiff's disability. Because the judge had held that on the balance of probabilities, even correct diagnosis and treatment would not have prevented the disability from occurring, it followed that the plaintiff had failed on the issue of causation. It was therefore irrelevant to consider the question of damages.
- Wilsher v Essex Area Health Authority [1988] AC 1074 The defendant hospital, initially acting through an inexperienced junior doctor, negligently administered excessive oxygen during the post-natal care of a premature child who subsequently became blind. Excessive oxygen was, according to the medical evidence, one of five possible factors that could have led to blindness and, therefore, the Lords found that it was impossible to say that it had caused, or materially contributed, to the injury and the claim was dismissed. In a minority view, Mustill LJ. argued that if it is established that conduct of a certain kind materially adds to the risk of injury, if the defendant engages in such conduct in breach of a common law duty, and if the injury is the kind to which the conduct related, then the defendant is taken to have caused the injury even though the existence and extent of the contribution made by the breach cannot be ascertained.
- Bolitho v City and Hackney Health Authority [1997] 4 All ER 771: A two-year old boy suffered brain damageBrain damage"Brain damage" or "brain injury" is the destruction or degeneration of brain cells. Brain injuries occur due to a wide range of internal and external factors...
as a result of the bronchialBronchioleThe bronchioles or bronchioli are the first airway branches that no longer contain cartilage or glands in their submucosa. They are branches of the bronchi.The bronchioles terminate by entering the circular sacs called alveoli.- Structure :...
air passages becoming blocked leading to cardiac arrestCardiac arrestCardiac arrest, is the cessation of normal circulation of the blood due to failure of the heart to contract effectively...
. It was agreed that the only course of action to prevent the damage was to have the boy intubatedIntubationTracheal intubation, usually simply referred to as intubation, is the placement of a flexible plastic or rubber tube into the trachea to maintain an open airway or to serve as a conduit through which to administer certain drugs...
. The doctor who negligently failed to attend to the boy said that she would not have intubated had she attended. There was evidence from one expert witnessExpert witnessAn expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialised knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally...
that he would not have intubated whereas five other experts said that they would have done so. The House of LordsHouse of LordsThe House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
held that there would have to be a logical basis for the opinion not to intubate. This would involve a weighing of risks against benefit in order to achieve a defensible conclusion. This means that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which is 'logically indefensible'. This has been interpreted as being a situation where the Court sets the law not the profession.
- Albrighton v RPA Hospital (1980) 2 NSWLR 542 where a patient in Royal Prince Alfred Hospital who had been born with a spinal problem had her spinal cord totally severed leaving her a paraplegic. Mr Justice Reynolds found that a major issue was the relationship between the hospital and the doctors, that the hospital was not liable nor vicariously liable but that the doctors who performed the operation were negligent. He also said, "The more recent approach is to replace the law, not legal practitioners, as the means of defining negligence", a policy in law later more strongly confirmed in:-
- F v R (1983) 33 SASR 189 Where Chief Justice King said, "In many cases an approved professional practice as to disclosure will be decisive. But professions may adopt unreasonable practices. Practices may develop in professions, particularly as to disclosure, not because they serve the interests of the clients, but because they protect the interests or convenience of members of the profession. The court has an obligation to scrutinize professional practices to ensure that they accord with the standard of reasonableness imposed by the law. A practice as to disclosure approved and adopted by a profession or section of it may be in many cases the determining consideration as to what is reasonable. On the facts of a particular case the answer to the question whether the defendant’s conduct conformed to approved professional practice may decide the issue of negligence, and the test has been posed in such terms in a number of cases. The ultimate question, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community."
Misfeasance
Where it can be shown that the decision-maker was not merely negligent, but acted with "malice", the tort of "misfeasance in public office" may give rise to a remedy. An example might be a prison doctor refusing to treat a prisoner because he or she had previously been difficult or abusive. Although proof of spite or ill-will may make a decision-maker's act unlawful, actual malice in the sense of an act intended to do harm to a particular individual, is not necessary. It will be enough that the decision-maker knew that he or she was acting unlawfully and that this would cause injury to some person, or was recklessly indifferent to that result.- Palmer v Tees Health Authority [1998] All ER 180; (1999) Lloyd’s Medical Reports 151 (CA) A psychiatric out-patient, who was known to be dangerous, murdered a four year old child. The claim was that the defendant had failed to diagnose that there was a real, substantial, and foreseeable risk of the patient committing serious sexual offences against children and that, as a result, it had failed to provide any adequate treatment for him to reduce the risk of him committing such offences and/or to prevent him from being released from the hospital while he was at risk of committing such offences. But the court struck out the claim on the grounds that there was no duty of care towards the child, as any child, at any time, was in the same danger. Furthermore, as the patient did not suffer from a treatable mental illness, there was no legal right to either treat or detain the person.
- Akenzua v Secretary of State for the Home Department [2002] EWCA Civ 1470, (2003) 1 WLR 741 where a dangerous criminal due to be deported, was released by the police/immigration services to act as an informant and killed a member of the public. The Lords held that if a public officer knows that his or her acts and omissions will probably injure a person or class of persons, the public body (or the state) will be liable for the consequences. In this case, it was arguable that there had been an illegal use of the power to permit the deportee to remain at liberty and that the officials exercising that power must have known that it was illegal. Given the criminal's record, the officials must at least have been reckless as to the consequences. For these purposes, it was not necessary to prove foresight that a particular individual might be at risk: it was enough that it was foreseeable that the criminal would harm somebody. Palmer was distinguishable because the relevant officials had the power to detain and deport the dangerous person.
Conclusions
Overall the question of professional negligence is problematic because, to a certain degree, each profession sets its own standards and may to that extent be considered "self-regulating". The arguments are complex. The difficulty for the law is to strike a balance between the interests of the professionals and those who rely on them. There is a form of legal pendulum that can swing either way depending on the policy issues involved but this is sometimes of little comfort to those who feel that they have not found justiceJustice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
in the legal system. In cases such as Whitehouse v Jordan the court holds that the doctor was not at fault because he did what other doctors might have done in the same circumstances. Thus, the claimant was brain damaged and that damage was caused by what the doctor did, but the doctor was not legally at fault. In one sense, this may be considered fair to the doctor who did exactly what many other doctors would have done. But the baby's brain damage is just as bad no matter what the cause of it, and it seems unfair that the difference between obtaining damage and being denied any remedy should depend on the court's application of negligence. Many use this type of case to argue in favour of a system of no-fault compensation such as that introduced in New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
in 1972. The question of no-fault compensation in the UK was considered by the Royal Commission on Civil Liability and Compensation for Personal Injury (the Pearson Commission), which reported in 1978. Although the Report was critical of the existing system, its terms of reference prevented it from recommending a comprehensive no-fault scheme. Instead it recommended an extension of the existing social security scheme to give greater assistance to victims of industrial injuries and to include the victims of road accidents. The possible extension of misfeasance in public office to include situations in which potentially dangerous individuals are released into the community complicates the duties of the professions involved. Given that medical professionals are already held out as having more reliable diagnostic and treatment skills, any obvious indifference as to whether those released will cause problems may expose the professionals to a new source of liability (see Mason and Laurie: 2003).