"All Things NICE": The Role Of The NICE Guidelines In Clinical Negligence Claims

• Published date: 13 July 2023
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Professional Negligence
• Law Firm: Deka Chambers
• Author: Anirudh Mandagere

The guidelines of the National Institute for Clinical Excellence (NICE) are designed to facilitate good medical practice. They are not a substitute for professional judgement, or discussions with patients, but provide guideline recommendations. In 2021, the General Medical Council issued specific guidance on 'Keeping up to date and prescribing safely' in which they advised medical practitioners to "take account of the clinical guidelines published by NICE [and]...Royal Colleges and other authoritative sources of speciality specific clinical guidelines".

The NICE Guidelines therefore present a paradox for clinical negligence practitioners. On one level, they are not inflexible rules that clinicians must follow. On another, they represent the consensus views of experts in the field as to proper standards. In Martin O'Brien v Guys' v St. Thomas' NHS Trust [2022] EWHC 2735 (KB) provided an authoritative and comprehensive analysis of the Guidelines, and their relationship with breach of duty in clinical negligence claims. This article deals with the facts of the case, the approach taken by HHJ Tindall and finally provides concluding thoughts on the impact of this judgment in future clinical negligence claims.

The Facts

The Claimant was the administratrix of her brother's estate. Her brother, Mr. Berry, had suffered a cardiac arrest and was admitted to St. Thomas' Hospital. One kidney had been removed and he had end-stage renal failure with the remaining kidney functioning at 50%. His condition deteriorated and he was at risk of sepsis. In light of this, his treating doctor (Dr. Meyer) prescribed a 400mg dose of the antibiotic Gentamacin and started him on dialysis. This was in accordance with the Trust's ICU Guidelines. However, it was a much higher dose than recommended by NICE in cases of renal impairment.

It was agreed that the Gentamacin dose caused Mr. Berry 'ototoxicity' side-effects leading to balance problems. It was the Claimant's case that the administration of Gentamacin was negligently excessive given that he had no effective renal function and was dependent on dialysis. The Claimant deployed the Defendant's non-compliance with the NICE Guidelines to allege negligence. The Defendant relied upon their compliance with the in-house ICU Guidelines to deny liability.

The Judicial Approach to the NICE Guidelines

A clinician must prove that they acted in accordance with practice recognised as proper by a competent reasonable body of opinion to defend a...