Standard defence allows for too many professionals to avoid liability
In the tort of negligence, professional persons are not judged according to the proverbial standard expected by “the man on the Clapham omnibus”. Instead the Bolam test is applied. In that case the claimant suffered a fractured pelvis while undergoing electro-convulsive therapy. It was alleged that the doctor had departed from the practice of some fellow professionals at the time by failing to administer a relaxant drug and failing to provide an effective means of restraint.
Evidence was received of a variety of contemporary practices in respect of such treatment. Mc Nair J stated that professional persons were governed by the accepted practices of their peers in the application of their particular calling or skill:
“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is established law that it is sufficient if he exercises the skills of an ordinary competent man exercising that particular art.”
McNair J relied upon the dicta of Lord President Clyde in Hunter v Hanley :
“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill and knowledge than others would have shown. The true test in establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.”
Thus there will be careful consideration of the state of professional knowledge and expertise at the time of the injury. In Roe v Ministry of Health , the plaintiffs were paralysed when contaminated anaesthetic was administered to them during the course of their operations. Lord Denning concluded that the anaesthetist did not know at the time of the operation that such cracks might exist and did not therefore guard against such dangers. Upon being duly reversed on this occasion also, Lord Edmund Davies commented that the phrase “error of judgment” was wholly ambiguous:
“…while some such errors may be completely consistent with the due exercise of professional skill, other acts or omissions in the course of exercising clinical judgment may be so glaringly below proper standards as to make a finding of negligence inevitable.”
The Bolam principle was the subject of some controversy in Sidaway v Governors of the Bethlem Royal Hospital . The patient underwent an operation to her spine which involved a 1-2% risk of injury to her spinal cord and consequent paralysis. Lords Bridge and Keith agreed with expert evidence that non-disclosure in such a situation was the accepted practice of a competent body of medical opinion and that this therefore afforded a complete defence to the claim. Nonetheless, Lord Bridge did not accept that the Bolam approach would apply in every instance and that even where there was no medical evidence to the effect that the action fell short of the accepted standard of practice, it would be open to the judge to conclude where the circumstances warranted it that the failure to disclose might be such that no prudent medical practitioner would countenance it. Lord Scarman preferred the perspective of the “reasonable patient” and suggested that the test should not be what information was supplied as a part of accepted procedure but rather what information the patient might reasonably expect to receive.
This notwithstanding, in the vast majority of cases judges are reluctant to “second guess” the views of apparently well-qualified professionals and this has the effect of placing the professional client in a markedly disadvantageous position compared to the standards which he would be entitled to expect in other spheres of activity. Regrettably, it is the esoteric nature of the professions (and perhaps a degree of fellow-feeling on the part of judges!) that allows the defence of “standard practice” to continue to succeed. By way of contrast, courts routinely adjudge liability in negligence arising from road traffic accidents. Particularly in the medical arena, two public policy considerations are often argued: the scope for self-regulation and the impact upon a profession of a proliferation of claims. The existence of disciplinary procedures within professional regulatory bodies such as the General Medical Council and the Law Society ought not to mitigate the responsibilities imposed by the civil law any more than the existence of Road Traffic regulations could be said to reduce the necessity for civil remedies arising out of motor accidents. The “floodgates” argument as applied to claims for professional negligence is self-serving and unconvincing. If so many members of a profession are operating at such low standards of care that allowing claims against them to be actionable would produce an unacceptably high level of litigation, this must surely argue in favour of a tightening of standards and improvement of practice rather than increasing the scope of immunity from such claims.
Outside such traditional professions as medicine and law, standard practice is much less likely to be tolerated as a defence. Lord Edmund Davies in Whitehouse (supra) has already hinted that where the court feels able to make a judgment as to a lack of appropriate competence, it should do so notwithstanding the fact that it is confronted with a battery of “tame” experts prepared to testify as to the prevailing standard practice of the profession.
Therein lies the greatest evil and potential scope for abuse of the standard practice defence. Despite the improvements brought about by the Woolf Reforms with a greater use of jointly instructed experts, there remains a natural tendency for professional witnesses to interpret facts and offer opinions in a manner calculated to support the party instructing them. Thus, it remains possible for a negligent professional to assemble subjective evidence which will argue that he has satisfied the Bolam criteria, namely that while his conduct may not equate to the best practice prevailing in the profession at the time, it still does not fall short of the ordinary competence of a person exercising that particular calling. The ability - indeed the duty - of the court objectively to measure the actions of the defendant against those which might reasonably be expected of him is diluted when the court abdicates this responsibility in favour of reliance upon the testimony of “tame” experts purporting to possess a superior knowledge of the standards of the profession than that which the court would be capable of determining for itself. The courts are left in a position in which they can only judge the professional defendant to be negligent when his behaviour falls so far short of accepted norms that no reasonable fellow professional can possibly defend it.
Tags: bolam test, competent man, difference of opinion, lord denning, professional knowledge, tort of negligence
