Negligence: Breach in focus - Professional Standards Flashcards
Remember the four questions when discussing negligence: 1. Is there a duty of care? 2. Has there been a breach? 3. Is there actionable damage? 4. Are there any defences?
Bolam v Friern Hospital Mgmt Committee (1957)
This case establishes the ‘Bolam Test’. We are thus asking whether what D (usually a doctor) did was within a responsible body of medical opinion/what responsible medical professionals would have done (McNair J at p. 587).
In this particular case, the claim actually failed.
Bolitho v City and Hackney CA (1996)
This case sets limits on the Bolam Test - see Lord Browne-Wilkinson at p. 243 (albeit in obiter): “…if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.” This was a response to the worry of doctors ‘marking their own homework’.
FB v Princess Alexandra Hospital NHS Trust (aka FB v Rana) (2017)
This case addresses the question of experience, and whether it is relevant in a medical negligence case. It was held that the standard should be of the ‘reasonably competent senior house officer in an A&E Department’.
Previous experience in a related field doesn’t matter. Conversely, having ‘relatively little’ experience did not matter either (Jackson LJ at [63]).
Jackson LJ goes on to state that context is important, and recognises that junior doctors often work long hours under constant pressure. Sometimes, mistakes will simply happen (however, the Court then goes on to find D liable) [65].
Montgomery v Lanarkshire (2015)
This case answers the question as to what duty is expected of a doctor when disclosing risks of the operation and therefore allowing patients to make informed decisions. Lords Kerr and Reed held that in this scenario, Bolam no longer applies (this case does!). As such, the duty here is “to avoid exposing a person to a risk of injury which she would otherwise have avoided, but it is also the counterpart of the patient’s entitlement to decide whether or not to incur that risk” [82].
It was held, then, that we need a stricter approach in disclosing risks: one therefore needs to inform D of risks, even if a responsible body of medical opinion would advise against it. This relates to a sound adult’s entitlement to consent before interference with her bodily integrity occurs [87]. There is thus a test of ‘materiality’ (i.e. material risks), which is whether - given the circumstances - “a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it” [87].
Conversely, the doctor is entitled to withhold information if it would be ‘seriously detrimental’, or out of necessity (e.g. a life or death situation, and D is unconscious) [88].
Webster v Burton Hospitals NHS Foundation Trust (2017)
This case provides a neat summary of the effect of Montgomery:
We have to take into account what the individual patient would be particularly interested in and disclose to him/her the material risks and uncertainties of the different treatments (including the possibility of alternative treatment). This is so the patients can make informed decisions on their health and wellbeing. It is not up to the patient to be inquisitive: you (as a doctor) have to disclose to the patient regardless, taking into account his/her particular characteristics (Simon LJ at [35]).
Duce v Worcestershire Acute Hospitals NHS Trust (2018)
This case shows that in the event where the doctor does fail to disclose, it isn’t necessarily the case that a breach is then inevitable.
i.e., the risk of chronic nerve pain was not sufficiently known among gynaecologists (in other words, the state of medical knowledge of the risk of operation is taken into account. This is distinct from whether medical opinion would have advised for the disclosure of risk or not; they did not know the risk existed in the first place). “[You] are not required to warn of a risk of which [you] cannot reasonably be taken to be aware” (Hamblen LJ at [43]).
O’Hare v Coutts & Co. (2016)
This case addresses to what extent Montgomery applies to non-medical cases. Kerr J states that it is “not irrelevant”, and goes on to analyse how the financial services industry has little consensus about how the treatment of risk appetite should be managed by an adviser - decreeing that “as in the medical context, the extent of required communication with the client should not depend on the attitude of the individual adviser” [206].
Barker v Baxendale Walker Solicitors (2017)
In a somewhat-obiter statement, Asplin LJ writes that one reason why Montgomery can matter outside of medical contexts is that one can draw analogies on how advice must be given before operations (whether that be a surgery or something else); however, in medical contexts, one can clearly separate the surgery from the advice beforehand; it is not necessarily this easy in other sectors (in this case, deciding whether to advise a client on the risk that a particular view taken is wrong or not is part of the legal advice ‘operation’) (p. 64). This seems to imply that the extent that Montgomery can affect cases outside the context of medical negligence is somewhat limited.
