7. PROFESSIONAL AND CLINICAL NEGLIGENCE

Question 1

PROFESSIONAL AND CLINICAL NEGLIGENCE

Answer 1

Functions like a typical General Negligence answer albeit with some TWEAKS.

Question 2

PandC Neg: DUTY

Answer 2

PROFESSIONALS
- ALL professionals owe a duty of care within a professional/client relationship (White v Jones), this also includes solicitors/client relationships (Ross v Caunters)

THE MEDICAL PROFESSION

• Medical PRO owe a DofC in the normal course of events (R v Bateman; Cassidy v Ministry of Health)
• Duty is owed at the earliest of either:
• – once the doctor assumes responsibility for the patient (R v Bateman), OR treatment is undertaken (Barnett v Chelsea and Kensington HMC)
• will owe the duty regardless of whether working for remuneration/reward (Cassidy v Ministry of Health)
• Med PRO do NOT owe a duty where there is no direct doctor/patient relationship (Kapfunde v Abbey National).
• – HOWEVER, whilst there is no LEGAL duty here, there remains a PROFESSIONAL duty to do so (Re F Mental Patient: Sterilisation)
• Generally, a Dr does NOT owe a duty to a 3rd party due to the lack of proximity between them (Goodwill v British Pregnancy Advisory Service)
• The duty includes a duty to write prescriptions clearly (Prendergast v Sam and Dee)

HOSPITALS AND HEALTH AUTHORITIES
Both owe a DofC to patients (Wilshire v Essex AHA; Bull v Devon AHA). Is essentially a duty to manage/run the hospital properly.
- services provided by medical professionals must be performed with a sufficient degree of skill and experience
- failure to provide doctors or services of a sufficient level of COMPETENCE may constitute a breach of duty (Bull v Devon AHA)
- the duty owed is NOT ABSOLUTE (R v Cambridge HA ex p Child B (a minor))

Health authorities do NOT owe a duty to patients who may harm themselves or others (Clunis v Camden and Islington Health Authority) or to prevent “wrongful” life (McFarlane v Tayside Health Board)

Question 3

PandC Neg: BREACH

Answer 3

STANDARD OF CARE
STANDARD: a R competent fully qualified medical professional in the specific capacity that D operates as. I.e. Dr, nurse, surgeon.

BREACH OF STANDARD OF CARE
To commit a breach of duty D must have fallen below the est standard of care.
TEST: has D taken a R course of action as determined by an acceptable/R body of medical opinion (Bolam v Friem).
- the body of medical opinion need not be a substantial one (Defreitas v O’Brien)
- A court will NOT choose between two competing medical opinions. If doctor has acted in accordance with either, then that is sufficient (Maynard v West Midlands RHA).
— HOWEVER, the relevant body must have a logical basis for its decision, courts reserve the right to overrule if found unR (Bolitho v City and Hackney AHA obiter per Lord Browne-Wilkinson)
- A procedure can be out of date and not fall below standard, provided that a R body would support its use.

The test also applies to the use of alternative medicine (Shakoor v Situ) and experimental medicine (Simms v Simms)

Question 4

PandC Neg: BREACH - Particular scenarios

Answer 4

DISCLOSURE OF RISKS
GR: Dr must ensure that a patient is aware of any material risks involved in a treatment and any R alternatives (Montgomery v Lanarkshire Health Board).
TEST for “material” risks: in the circumstances, would a R person in PATIENT’S position attach significance to the risk, or Dr is or should be R aware that the patient would attach significance to the risk (Montgomery…)
— not binding but guidance from (Sidaway v Boadr of Governors). If risk below 10%, not material, so NO duty to inform IFF a R medical body would not inform either.
- EX 1: where patients requests the level of risk to be disclosed, Dr MUST disclose it (Chester v Afshar). UNLESS good reason not to due to patient’s emotional state (Pearce v United Bristol Healthcare)

ERRORS OF JUDGEMENT
- will not necessarily constitute negligence, so long as it may have been made by a R competent medical professional (Whitehouse v Jordan)

LEVEL OF SKILL

• Trainee med PRO are judged according to the standard of a R competent FULLY QUALIFIED medical professional (Wilsher v Essex AHA). also applies to surgeons/consultants (Ashcroft v Mersey RHA) and alternative medicine (Shakoor v Situ)
• Seeking advice from a senior colleague MAY prevent a junior medical professional from being found in breach of duty (Wilsher v Essex AHA)

STATE OF KNOWLEDGE

• Risk of harm must be FORESEEABLE/APPRECIABLE in order for D to be liable (Roe v Minister of Health; N v UK Medical Research Council)
• Med PRO are NOT expected to be familiar with every new development in their area of expertise (Crawford v Charing Cross Hospital), UNLESS the development is so COMMON/WELL KNOWN that lack of awareness constitute blatant negligence (White v Jones)

Question 5

PandC Neg: CAUSATION

Answer 5

FACTUAL CAUSATION

• ‘BUT FOR’ TEST (Barnett v Chelsea and Kensington HMC)
• – court will only depart from this test in exceptional circumstances (Fairchild v Glenhaven; Bonnington Castings v Wardlaw)
• – The test will not allow D to escape liability for:
• – Failing to disclose risks to a patient (Chester v Afshar), AND/OR
• – Negligent referral of a patient to hospital (Wright (a child) v Cambridge Medical Group)
• IF MULTIPLE CAUSES, consider other approaches:
• – Balance of Prob (Wilsher v Essex AHA)
• – Material Contribution (Bailey v MoD)

LEGAL CAUSATION
TEST: has a NAI occurred?
--- act of God
--- act of C
--- act of 3rd party
- Medical treatment will not break the chain of causation unless it is MANIFESTLY UNR and/or PALPABLY WRONG (Robinson v The Post Office)

Question 6

PandC Neg: REMOTENESS

Answer 6

TEST: the TYPE of damage occurring as a result of D’s breach must be R foreseeable (Wagon Mound (No. 1)).

Question 7

PandC Neg: DEFENCES

Answer 7

ALL normal defences are available

• VOLENTI NON FIT INJURIA
• CONTRIBUTORY NEGLIGENCE
• ILLEGALITY