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 to be indefensible.
Refining the Bolam test
Unsurprisingly, as modern medicine has moved on and as the body of cases brought before the courts has increased, so the Bolam test has needed to be modified and subsequent case law has developed. This is, in my view, entirely right. Ours is not the same society that it was in 1957.
Bolitho v City and Hackney Health Authority (1997) was a House of Lords decision that led to an important clarification of the Bolam test. The facts of the case are less important than the judgment. Faced with two conflicting expert views, the court found both the expert evidence presented by the claimant and defendant to be reasonable, but the Defendant’s evidence had been preferred. An important element of the Judgment is Lord Browne-Wilkinson’s comments on expert evidence that can no longer be supported or which, although supported, are not logical.
“In cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence… In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion… But 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.”
Bolitho is an important qualification that goes not just to the standard of care provided, but the medical experts opining on the care. It will serve to prevent, for example, a long-retired clinician supporting clinical treatment that the vast majority of practitioners abandoned a long time ago or particularly extreme views. Whilst potentially far reaching, a number of clinicians will no doubt also have welcomed the judgment, which is important if the law is to reflect and hold healthcare professionals to current and acceptable clinical practice.
Has the patient really agreed to be treated?
Whilst the legal standard for what amounts to an error has remained consistent, albeit subject to refinement, the recent developments in the law have all related to the provision of information and greater patient autonomy.
Chester v Afshar (2004) caused disquiet when it was determined by the House of Lords in 2004, because the defendant surgeon had undertaken the surgery entirely competently. Mr Afshar, performed appropriate surgery to the lumbar spine but the claimant sustained injury. Cauda Equina Syndrome was a recognised risk of the surgery (approximately a 1-2% risk) but Mr Afshar failed to warn of it, believing it to be too remote. He was found to be negligent for that failure to warn, which deprived the claimant the opportunity to make a fully informed decision and/or to seek a second opinion before proceeding.
Whilst there will always be patients who are content to defer entirely to their healthcare professional, possibly not even wanting to know of all of the risks, Chester signalled a duty to provide much more information than had perhaps been provided previously. In simple terms, if the patient is not fully warned of the risks, how can they weigh up fully whether to go ahead with the proposed treatment?
At the time, the two significant concerns for clinicians were (i) would any patient proceed with treatment if aware of all risks, however theoretical, and (ii) how would they find the time to discuss risk in much further detail in the busy NHS hospital environment?
The answer to the first of the questions is, of course, that patients who want and need treatment will make decisions. The second question is undoubtedly a challenge, but any notion that the duty in Chester related only to a duty to warn of particularly significant or serious risks, rather than all prospective risks, was recently addressed by the Supreme Court in what should be regarded as a further clarification of existing law, rather than a restatement or development of new law.
Montgomery v Lanarkshire Health Board (2015) concerned the obstetric management of a diabetic mother. The mother, by reason of her pre-existing medical condition was at risk of having a larger baby and that, in turn, increased the risk of a more difficult vaginal delivery and possible shoulder dystocia. That information was not discussed with the mother, as the doctor in charge of her care considered that the mother would then request a caesarean section (as in fact was her evidence). In essence, a paternalistic view was taken as to what information the patient should have. Unfortunately the delivery was indeed difficult and the claimant child was born with shoulder dystocia. The Supreme Court found that there was a failure to warn of the risks and negligence was established.
What Montgomery has made clear is that the duty to discuss risk goes beyond the duty to discuss known risks. That is to say that there may be factors of importance to the patient which, if discussed, would affect their decision making. It is clear that the process is one which involves a dialogue.. Unless all information is given to the patient, the healthcare professional potentially deprives the patient of key information to make a properly informed decision. For that reason, Lord Kerr specifically noted “whether a risk is material cannot be reduced to percentages.” Only a patient can decide what is acceptable risk.
Whilst this may appear far reaching, in practice, the judgment is merely in accordance with GMC consent guidelines that have existed since 2008 and which specifically caution against making assumptions. In particular, the guidelines also address the details that must be recorded in the clinical records.
Whilst Montgomery and Chester concerned the process of consent prior to medical intervention, it is important to note that requirement to provide adequate and complete information extends throughout the care. In December, judgment was handed down in the case of Gallardo v Imperial College Healthcare (2017). It is the most recent of the clinical cases which have followed Montgomery. The court had to consider whether there was an obligation to provide full and complete information after the conclusion of treatment. The claimant had been in intensive care and was therefore too unwell to discuss matters pre-operatively. It was found that further information should have been provided. The Claimant was not adequately advised post-operatively about his malignant tumour such that his subsequent treatment under other clinicians was sub-optimal.
Where are we now?
From a medicolegal perspective, the test for breach of duty (ie whether an error has been made) as set out in the Bolam test remains the same. That will always require expert evidence. However, standard hospital protocols and the publication of guidelines (such as those produced by the National Institute of Clinical Excellence) assist to define clearly what is likely to be regarded as acceptable practice for lawyers and healthcare professionals alike.
Insofar as there have been developments in the law, particularly with regard to consent, there has not been an influx of cases where the duty to warn of risks was the sole failure. However, a failure to provide adequate information to the patient may be an indicative factor of wider failures of practice.
Although there has been a statutory duty of candour since 2014 to notify the patient of errors and near-misses, it is not clear that this has had the effect that was intended. It is still the case that we receive complaints of poor outcomes, but without the claimant having been advised fully as to why that poor outcome has arisen or whether an error has been made. Internal investigation reports prepared by hospitals are rarely as searching as they could or should to be.
With regard to clinical practice, I have argued that Montgomery reflected pre-existing duties and obligations. Whilst this is true, it has been a wake-up call for some clinicians as to how much information will need to be provided to their patients. Merely placing a consent form in the clinical notes is unlikely to be sufficient if the notes do not adequately reflect the risks of the procedure and discussion of risk. Nearly three years on, there is at least some evidence that it has led to changes in clinical practice. The judgment of Mr Justice Green in Thefaut v Johnston (2017) is illustrative:
“Mr Johnston accepted very candidly that he had not given Mrs Thefaut the advice that he recognised that she deserved. He acknowledged that the advice given was sub-standard. He also accepted that his general record keeping was not at the time up to par. Mr Johnston said that in the light of developments in the law he now adopted a quite different approach.”
Whilst the Claimant was not wholly successful in the Threfaut case, it is clear that even if expectations have not changed as to standards of care, clear advice must have been both given and documented. More time will need to be spent liaising with patients during all stages of the treatment process and when completing notes.
In time, it seems likely that patients will be better informed and, potentially, more aware of the inherent risks and uncertainties with their treatment. That can only be of benefit to both the patient and professional.
Whilst a radical review of the law relating to professional negligence is unlikely, we can expect the law to continue to develop to reflect both changes in patient expectations and the delivery of medical care in the future.
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