"In establishing the standard of professional conduct that ought be reasonably adopted by doctors, common law does little more than articulate standards adopted by doctors themselves, it does not impose those of its own" Discuss

Samantha Freeman BA (Hons) Legal Studies

Year2 Medical Law

“In establishing the standard of professional conduct that ought be reasonably adopted by doctors, common law does little more than articulate standards adopted by doctors themselves, it does not impose those of its own” Discuss the accuracy of this statement.

Introduction

This statement is concerned with the discussion of standard of care. An important point to note when discussing standard of care is that, the standard to which a doctor will be judged is not going to be the same as that of the ordinary reasonable man, who has no expertise in medicine. A doctor is under a duty to conform to the ordinary standards of the profession. Legally this has been defined in Bolam v Fiern Hospital Management [1957] WLR 582. In this case Lord Justice McNair stated that “The test is the standard of the ordinary skilled man exercising and professing to have that special skill, a man need not posses the highest expert skill” (Davies P195).

Although on ethical point of view “judges are not qualified to make professional judgements on the practices of other learned professions” (Braizier p87). This statement could be taken as a contradiction to what LJ McNair stated above, it could be seen that doctors are articulating their own standards, because judges do not want to get involved.

Difficulties

The first difficulty in application of the Bolam Test arises when applied to junior doctors, who may lack expertise. In this case the courts have felt the need to follow the reasoning given in Nettleship v Weston [1971] 3ALL ER 581.Where a learner driver was held subject to the same standard to that of the reasonably competent driver. This shows the courts trying to exercise that doctors cannot set their own legal standard. This principle was used in Jones v Manchester Corporation [1952] 2 ALL ER 125 where it was stated that errors due to inexperience were no defence. A contradicting view was seen in Wilsher v Essex AHA [1987] QB 730, where it was stated that when a junior doctor got their work checked, they would not be found liable as they were entitled to have it checked.

LJ Mustil went on to muddy the water by claiming that you could ascertain the standard of care by reference to the post, he stated he “preferred to relate duty of care not to an individual, but to the post occupied. As it must be recognised that different posts requires different demands.” (Stauch p286) The courts are trying to achieve a minimal standard below which no doctor can fall.

Emergencies are an exception to the Nettleship v Weston principle. As M Jones stated “in an emergency it may well be reasonable for a doctor inexperienced in a particular area to intervene, and ...

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Emergencies are an exception to the Nettleship v Weston principle. As M Jones stated “in an emergency it may well be reasonable for a doctor inexperienced in a particular area to intervene, and so he would only be expected to achieve the standard given the situation, which would probably be low” (Stauch p286). This was clarified in Wilsher v Essex by LJ Mustil “an emergency situation may overburden the available resources, if an individual is forced by the circumstances to do many things at once, the fact that he has done one of them incorrectly should not be taken as negligence” (Stauch p286). This shows that common law does little to articulate the standards.

Two Schools of Thought

In R v Bateman [1925] 94 LJKB 791, a principle founded was that if the physician is following approved practise he can not be found negligent. This was shown in Marshall v Lindsey County Council [1935] 1 KB 516 where LJ Maugham stated “a defendant charged with negligence can clear himself if he shows that he acted in accordance with general and approved practice” (Lewis p194)

What is approved practise? The courts have stated that they will not choose between two schools of thought.

This point was clarified in Hunter v Handley [1955] SLT 213 Lord President Clyde stated there was too much scope for genuine differences of opinion and that one should not be held negligent, because the conclusion differs. An example of the two schools of thought working positively for the doctors is in Pargeter v Kensington, Chelsea and Warminster HA [1979] 2 The Lancet 1030. The defendant avoided liability by showing that a respectable body of medical opinion approved his practise. The courts imposed its own views in the case of NYE Saunders and Partners v Bristow 8 April 1987 CA, but this is rare.

Lord Scarman showed this in Maynard v West Midlands RHA [1984] 1 WLR 634 “it is not enough to show that there is a body of professional opinion which considered their decision wrong, when there is another body which supports their decision in the circumstances.” (Stauch p295)

Application and Scope

The courts turn to the Bolam Test first. The case of Hills v Potter [1984] 1 WLR 641 was the first real demonstration that courts were not going to let doctors dictate on law, LJ Hirst stated, “I do not accept the argument that by adapting the Bolam Principle, the court abdicates its power of decision to doctors” (Stauch p296)

There have been developments since Hills such as Defreitas v O’Brien [1995] 6 Med LR 128 it was held that reasonable body of opinion was not substantial as a defence.

Keeping Up to Date

This was discussed in Crawford v Board of Governors of Charing Cross Hospital [1953] The Times 8 December it was found that there was no breach of duty, when the defendant used a procedure which had been reported to cause injury. It was said that doctors couldn’t be expected to read every article produced. Lord Denning said that it would have put a terrible burden on to doctors. An example of the courts not wanting to interfere.

Lord Scarman in the case of Maynard seemed to frame the Bolam Test as a complete defence, providing a doctor could show that they did comply with a practise approved by a reasonable body they could never be found negligent. So as long as someone agreed with the practise, could that constitute a reasonable body? However this was never to be the meaning of the test. This power was deemed as unfair in Bolithio v City Hackney HA [1997] 4 ALL ER 771 LJ Mustil stated “ in my judgement the court could only adapt the approach of LJ Sachs and reject medical opinion” He also stated that medical opinion should be rejected if “the court fully conscious it lacks clinical knowledge was none less clearly satisfied that the view of the professional body was Wednesbury unreasonable” (Lewis p198). Showing that the courts willing to impose rules of its own.

The New Bolam

Hucks v Cole [1968] The Times 9 May CA seems to try and create a new Bolam. Sach seemed to show a change of view, he stated, “the fact that other practitioners would do the same is not conclusive. The court must be vigilant to determine whether the reasons given for putting the patient at risk are valid in light of any known medical advances” (Stauch p299). This case was never properly reported and not referred to in any major cases of the 1980s. M Jones stated “it is rather the case that if this case represents any real change at all, it is that the courts are being more explicit, in publicising their rare and residual power to question medical practise” (Jones p99).

Departure From Approved Practise

Where there is a single course of treatment recognised, it becomes difficult impossible to demonstrate that this treatment is illogical, should deviation from such practise be classed as negligent?

In Hunter v Handley [1955] SC 200 LP Clyde set out three requirements to establish a doctors liability.

It must be proved that there is a usual and normal practise.
It must be proved that the defendant has not adopted that practise.
It must be established that the course adopted is one no one else would have chosen if acting with ordinary care.

The problem is that it is not clear whether Clyde had intended the third requirement to be determined by the courts, or by doctors’ evidence.

The case of Clark v McLennan [1983] 1 ALL ER 416 showed this, Justice Pain held “that were there is a situation in which a general duty of care arises and there is a failure to take precaution, and that very damage occurs against which the precaution is designed to protect, then the burden lies on the defendant”(Sauchts p304)

Conclusion

The Bolam Test is clearly established as the accepted medical practise. Considering the effect it has on claimants, and their right, the test does not sit comfortably with a doctor’s duty.

This implies that the system is self-governing, and there is scope for self-preservation within the profession with doctors supporting one another’s views, this must be very disadvantaging for the claimant.

So it would appear that the medical profession are on a pedestal by the courts, and the odds against a claimant could be argued as a breach of human rights.

“The prospect of the English courts suddenly revising the tradition of decades and actively seeking to arrogate to themselves the making of clinical judgements is remote” (Braizer p114)

Table Of Cases

Bolam v Fiern Hospital Management [1957] WLR 582

Bolithio v City Hackney HA [1997] 4 ALL ER 771

Clark v McLennan [1983] 1 ALL ER 416

Crawford v Board of Governors of Charing Cross Hospital [1953] The Times 8 December

Defreitas v O’Brien [1995] 6 Med LR 128

Hills v Potter [1984] 1 WLR 641

Hucks v Cole [1968] The Times 9 May CA

Hunter v Handley [1955] SLT 213

Jones v Manchester Corporation [1952] 2 ALL ER 125

Marshall v Lindsey County Council [1935] 1 KB 516

Maynard v West Midlands RHA [1984] 1 WLR 634

Nettleship v Weston [1971] 3ALL ER 581

NYE Saunders and Partners v Bristow 8 April 1987 CA

Pargeter v Kensington, Chelsea and Warminster HA [1979] 2 The Lancet 1030

R v Bateman [1925] 94 LJKB 791

Wilsher v Essex AHA [1987] QB 730

Bibliography

Davies, M (2001) Textbook on Medical Law, (2nd Edition), Blackstone Press: Gosport, Hants

Fulton-Philips, A (1997) Medical Negligence Law: Seeking a Balance, Dartmouth: Aldershot

Grubb, A & Kennedy, I (2000) Medical Law, (3rd Edition), Butterworths: London

Jones, M (1984) Medical Negligence, Sweet and Maxwell, London

Lewis, CJ (1995) Medical Negligence: A Practical Guide, (3rd Edition), Tolley: Croydon

Mason, JK & McCall Smith, RA (1999) Law and Medical Ethics, (5th Edition), Butterworths: London

McLean, SAM (1996) Contemporary Issues In Law, Medicine and Ethics, Dartmouth: Aldershot

Stauch, M, Tingle, J & Wheat, K (1998) Sourcebook on Medical Law, Cavendish Publishing: London

Articles And Journals

British Medical Journal Vol 234 27/4/02 No 7344

Health Society Journal Vol 112 25/4/02 No 5802

Brazier, M & Miola, J (Spring 2000) “Bye-Bye Bolam: A Medical Litigation Revolution?” Medical Law Review Vol 8 No 1 Edited by Professor Grubb

De Prez, P (spring 2002) “Self Regulation and Paragons of Virtue The case of Fitness to Practise”, Medical Law Review Vol 10 No 1 Edited by Professor Grubb

New Law Journal (26/4/02) No 1029 pp605-652 Butterworth

The maker who has a discretionary power is vested, and must not exercise that power in a way that no reasonable body would as seen in the case of Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223