Clinical Negligence and Duty of Care PDF

WEEK 12 MPharm Programme Clinical Negligence and Duty of Care Adam Oxberry [email protected] Dale 113 Slide 1 of 24 PHA221 – Clinical Negligence and...

WEEK 12 MPharm Programme Clinical Negligence and Duty of Care Adam Oxberry [email protected] Dale 113 Slide 1 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 Learning Objectives On completion of this lecture, you should be able to: – Describe what is meant by the term ‘clinical negligence’ and what type of law it falls under – Describe how clinical negligence is tested with reference to case studies – Describe how ‘duty of care’ is established and how this is tested – Describe how ‘duty of care’ is established – Describe with reference to the ‘Bolam’ and ‘Montgomery’ principles how a breach of ‘duty of care’ is established and tested – Explain how clinical negligence can only be proven if harm has occurred – Explain how courts consider the individual clinician when assessing clinical negligence claims Slide 2 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 CLINICAL NEGLIGENCE Slide 3 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 The Tort of Negligence Clinical negligence falls under civil law – This has been described in your week 11 and 12 seminars This has a lower threshold of judgement and is based on balance of probability – Is the offence more likely to have happened than not? There are degrees of negligence and it is possible for clinical negligence to fall under criminal law – Gross negligence manslaughter Slide 4 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 The Law of Negligence To prove clinical negligence, it must be proven that on balance of probability, the healthcare professional or institutional healthcare provider: 1. Owed a duty of care 2. Breached the duty of care; and 3. The breach led to harm or injury All three must be met to prove clinical negligence Slide 5 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 1. OWED A DUTY OF CARE Slide 6 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 Establishing Duty of Care 1. Was it reasonably foreseeable that the defendant’s actions would cause the victim harm? – If not, there is no duty of care 2. Is there a sufficiently close relationship between the defendant and the patient? – This is potentially a vague concept 3. Is there a public policy reason which argues against a duty of care being found? – A duty of care exists only where it is ‘just and reasonable’ to impose one 4. What is the scope of the duty of care? – What has the clinician undertaken responsibility for in respect of the harm of the complainant has suffered Slide 7 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 2. BREACHED THE DUTY OF CARE Slide 8 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 The Breach of the Duty In the law of negligence, the question is whether it is shown on the balance of probabilities that the defendant acted as a reasonable person would In some situations the law uses what is known as the Bolam test – Clinical decisions such as what treatment to give to a patient or how to treat the patient Others use the standard negligence test – What information to give the patient Slide 9 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 The Bolam Case In Bolam v Frien Hospital Management Committee it was held that ‘a doctor 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 test not only applies to doctors but to any healthcare professional and has been approved by the House of Lords in several cases This still applies today Slide 10 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 When Does Bolam Apply? The Bolam test applies to clinical decisions which involve medical skill – Diagnosis of a condition – Consideration of what treatments are appropriate for a particular condition – How treatments should be provided Bolam does not apply in various situations – Non-clinical decisions Slide 11 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 Examples of Non-Clinical Decisions Informing a patient of what reasonable treatment options are available – Montgomery V Lanarkshire Health Board Informing a patient of the material risks associated with treatment – Montgomery V Lanarkshire Health Board Informing the patient about the outcome of a procedure – Gollardo V Imperial College Healthcare NHS Trust Non-medical advice – Darnley V Croydon Health Services NHS Trust Slide 12 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 A duty of care exists only where it is ‘just and reasonable’ to impose one DUTY OF CARE CONSIDERATIONS Slide 13 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 Breach of Duty Considerations Current state of knowledge – Ministry of Justice V Carter Respected body of opinion – Bolitho V City & Hackney Health Authority Requires judges to consider whether the opinion of an expert can ‘withstand logical analysis’ Slide 14 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 Breach of Duty Considerations Standard of Skill and Specialism – The standard of care that a healthcare professional is expected to exercise relates to the task involved – If this is straightforward, then it is irrelevant whether the clinician is a highly qualified surgeon or junior nurse – If the task is more complex, then the standard depends on the specialty or profession involved – In FB V Princess Alexandra Hospital NHS Trust it was held that there was no difference in the standard expected of a consultant or junior doctor in taking a history of a patient because the task was straightforward Slide 15 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 Breach of Duty Considerations Emergencies – Courts will take into account the situation in which healthcare professionals find themselves – In Mulholland V Medway NHS Foundation Trust a doctor in a pressurised emergency department was faced with an urgent case – The court accepted that he could not necessarily be able to demonstrate the same level of skill if faced with a case with plenty of time to decide what to do and to consult with colleagues Slide 16 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 Breach of Duty Considerations Protocols and Policies – If a healthcare professional failed to follow a SOP this may assist in demonstrating that they have been negligent if the professional is unable to provide good reasons – Failure to follow NICE guidelines, especially if the deviation is significant and not justified, may be taken as a breach in duty of care Slide 17 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 3. THE BREACH LED TO HARM OR INJURY Slide 18 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 Causation Simply showing beyond reasonable doubt that a healthcare professional owed a duty of care and breached the duty of care is not sufficient This basic test is known as the ‘but for’ test – Consider Barnett V Chelsea and Kensington Hospital This case established an important test Slide 19 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 Test of Causation If a claim is that a clinicians negligence meant that the patient’s disease was not diagnosed or treated properly, it is necessary to show that, had the healthcare professional acted appropriately then: 1. The disease would have been diagnosed; and 2. It would have been possible to treat the patient so that their condition would have improved Slide 20 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 CLINICAL NEGLIGENCE AND DUTY OF CARE SUMMARY Slide 21 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 The Law of Negligence To prove clinical negligence, it must be proven that on balance of probability, the healthcare professional or institutional healthcare provider: 1. Owed a duty of care 2. Breached the duty of care; and 3. The breach led to harm or injury All three must be met to prove clinical negligence Slide 22 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 Establishing Duty of Care 1. Was it reasonably foreseeable that the defendant’s actions would cause the victim harm? – If not, there is no duty of care 2. Is there a sufficiently close relationship between the defendant and the patient? – This is potentially a vague concept 3. Is there a public policy reason which argues against a duty of care being found? – A duty of care exists only where it is ‘just and reasonable’ to impose one 4. What is the scope of the duty of care? – What has the clinician undertaken responsibility for in respect of the harm of the complainant has suffered Slide 23 of 24 PHA221 – Clinical Negligence and Duty of Care WEEK 12 References 1. Herring, J. (2022). Medical Law and Ethics. 9th edn. Oxford: Oxford University Press, pp. 109-153. Available at: https://www.oxfordlawtrove.com/10.1093/he/9780192 856562.001.0001/he-9780192856562-chapter-3 [Accessed 15 Oct. 2024] Slide 24 of 24 PHA221 – Clinical Negligence and Duty of Care