Breach Of Duty: Evaluating The Standard Of Care Now Expected Of Medical Professionals

The legal principles behind breach of duty by medical professionals are well established and have developed since the landmark decision in Bolam in 1957. Senior Associate Hugh Johnson revisits the key cases and asks what developments in case law mean both for litigation claims and clinical practice.

The Bolam test

The standard of care for professionals is comparison to their professional peers. The test was formulated in the case of Bolam which, despite dating back to 1957, remains good law. Mr Justice McNair put it simply in his judgment:

"I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art."

The clinician is judged in accordance with the standards of the reasonably competent professional in their field. The test does not require a 'gold standard' to be attained. Similarly, a foundation year doctor (FY1) would not be held to the same standard as his supervising consultant. Further, the test allows for differing views. So long as there is a collective body of doctors that would have provided the same treatment, it will be acceptable care.

As such, in Bolam, because the treatment provided for the claimant's mental health condition was in accordance with the standards of the time for electro-convulsive therapy (ECT), it was not negligent. This was despite the fact that he sustained multiple injuries during the treatment, including significant fractures.

The Bolam test has instilled a degree of confidence on the part of the professional, precisely because it allows a degree of flexibility as to differing medical views. It considers the treatment provided (not the outcome) and is sufficiently flexible to take account of the fact that medical treatment is rarely black and white. With illnesses or symptoms presenting at different times and rates between patients, it is unsurprising that doctors may differ as to when to observe and when to surgically intervene, for example.

Establishing a breach of duty is (appropriately) often a hard test to meet. Care will not be substandard merely because of an adverse outcome. Detailed consideration of the clinical records will be required and an independent specialist will need to be content not just to be critical, but to opine that no responsible body of doctors would support the care that was provided. All claimant legal practitioners will have had difficult conversations with clients to advise that the treatment provided may not have been good or to a gold standard, but nor was it so bad as...