Negligence and the legal standard of
care: what is ‘reasonable’ conduct?
Abstract
Medical negligence has become a big issue for medical
practitioners. Fear of the law, and of litigation, has led to claims of
defensive medical practice among doctors and nurses. At the heart
of this lies the legal definition of the standard of care, where the
law seeks to determine when conduct is ‘reasonable’ (and thus not
negligent), or ‘unreasonable’ (and thus a breach of the legal duty of
care and potentially negligent). In this article the author clarifies
what the law means by ‘reasonableness’ with respect to nurses,
drawing on both the law and the NMC Code. Furthermore, the
article shall demonstrate that the law is not something to be fearful
of but, rather, demands a standard no higher than that of the NMC.
Key words: Conduct n Negligence n Reasonableness
n Standard of Care
I
n order to prevent liability in negligence or being
disciplined by their professional body, nurses must
conform to the requisite standard of care required of
them. The NMC Code makes it clear that nurses are
expected to ‘provide a high standard of practice and care at
all times’. It further specifies that this overarching duty may
be broken down into three categories:
■ Using the best available evidence
■ Keeping skills and knowledge up to date
■ Keeping accurate records.
The law, however, imposes just one duty on professionals –
to act reasonably. In this article the author examines what the
law expects of nurses in order to conform to this standard,
and how this applies to the provisions of the Code.
The ‘reasonable nurse’?
The cases that have driven the law’s definition of what
constitutes reasonableness in a profession have, on the whole,
concerned medical negligence. The landmark case of Bolam
v Friern Hospital Management Committee [1957] 1 WLR 582
provides both an excellent starting point, and the base upon
which the law has been built. The decision is useful because
it outlines what the law expects from people, and how that
changes when the individual has some special skill (Brazier
and Miola, 2000). John Bolam was a voluntary patient at
a psychiatric hospital who was offered electroconvulsive
José Miola is a Senior Lecturer in Medical Law, School of Law,
University of Leicester
Accepted for publication: May 2009
756
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José Miola
therapy (ECT) as treatment. He was not given relaxant
drugs, nor was he adequately restrained. The result was severe
injuries including a fractured hip. He sued, partly on the basis
that the ECT had been incorrectly performed. However, the
doctor treating him had performed the procedure in exactly
the way that he had been taught, and both plaintiff and
defendant had medical experts who testified on their behalf.
The judge began by noting that the law required that people
act in a reasonable manner. He then continued by outlining
what he meant by that:
‘In an ordinary case it is generally said, that you judge that
by the action of the man on the street … It has been said
that you judge it by the conduct of the man at the top of the
Clapham omnibus ... But where you get a situation which
involves the use of some special skill … then the test whether
there has been negligence or not ... is the standard of the
ordinary skilled man exercising and professing to have that
special skill ... A man need not possess the highest skill at the
risk of being found negligent ... It is sufficient if he exercises
the ordinary skill of an ordinary competent man exercising
that particular art.’
But how would we know when such skill had been
demonstrated by the professional? The judge held that the
key was the evidence of other professionals in the same field,
and what they might have done:
‘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
... Putting it the other way round, a doctor is not negligent if
he acting in accordance with such a practice, merely because
there is a body of opinion that takes the contrary view.’
Therefore, in order to act ‘reasonably’ and conform to
the legal standard, the defendant nurse would have to show
that other nurses might have done the same as she did in
the circumstances. This would be achieved through expert
evidence in court. If such a ‘responsible body of opinion’
can be found, then there will be no liability in negligence.
However, the above quote has been the subject of much
conjecture. This is because it could be read as requiring that
the defendant only has to produce some colleagues who
might have done as she did, to refute a charge of negligence.
Indeed, this is how the courts interpreted Bolam for almost
exactly 40 years: as long as the evidence produced by the
defendant’s professional experts was given honestly, the court
was not entitled to find that the standard of care had been
breached – even if other experts argued that the defendant’s
conduct had been unreasonable (Maynard v West Midlands
Health Authority [1985] 1 All ER 635).
British Journal of Nursing, 2009, Vol 18, No 12

Unsurprisingly, this interpretation of what Bolam
provided was viewed as unnecessarily restrictive to
plaintiffs, and in 1997 the House of Lords finally changed
the way in which the case should be used. In Bolitho v
City and Hackney Health Authority [1998] AC 232, Lord
Browne-Wilkinson held that no longer would the mere
existence of expert evidence for the defence successfully
defeat a charge of negligence. He noted that Bolam
referred to ‘reasonable’ and ‘responsible’ bodies of opinion.
Thus, if in a ‘rare case’ the judge feels that the evidence of
the defendant’s experts fails to withstand ‘logical analysis’,
then ‘the judge is entitled to hold that the body of opinion
is not reasonable or responsible’ and find for the plaintiff.
It is important to note that the House of Lords refers to
‘rare cases’ – they will not find a lack of logic lightly, and
subsequent cases in the decade since the decision have
not produced a deluge of findings of unreasonableness in
professional conduct.
All in all, then, ‘reasonableness’ can almost always be
demonstrated simply by following approved practice and
doing what other nurses might do in the same situation.
If the nurse departs from common practice, she will have
to show a good reason for doing so (Clark v Maclennan
[1983] 1 All ER 416). A nurse performing an expanded
role (including prescribing medicines) will have to
conform to the standard of a reasonable nurse performing
such a role if she agrees to take it on (and risk professional
sanction from the NMC if she is not qualified to do so,
as it would constitute a breach of the Code) (McHale
and Tingle, 2007). However, although inexperience is no
excuse (as the law tailors the standard to the act rather
than the actor), by asking a senior colleague to check her
work, the professional will be held to be acting reasonably
and thus escape liability (Wilsher v Essex Area Health
Authority [1986] 3 All ER 801). Equally, where the nurse
is following the instructions of a doctor, the nurse may
be held not liable as she was following the doctor’s orders
(Gold v Essex County Council [1942] 2 All ER 237). For an
example, see the case study in Box 1.
That said, she may be professionally liable under the
NMC Code (this is reinforced by the NMC Accountability
fact sheet, available at http://tinyurl.com/memu9r). This
approach by the courts is not unfair, nor does it ask for
unattainable standards. Rather, much of it is common
Box 1. Case study
A nurse performing an expanded role is asked to perform
an endoscopy. It is not undertaken properly, and the
patient is injured. How do we know if the nurse has acted
‘reasonably’?
According to Wilsher, the law considers the standard
for the act rather than the actor. Thus, evidence may be
heard from both doctors and nurses with experience of
the procedure. The evidence on both sides would be
heard, and the judge would use this to decide whether the
defendant’s conduct conformed to the standard of care.
In rare cases, evidence may be found to be illogical and
therefore not followed by the judge (Bolitho).
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SPECIALIST HEALTHCARE LAW
sense, and it is not unreasonable for the courts to demand
that they, rather than the professions, determine the legal
standard of care, and have the final say regarding whether
it has been reached. Certainly, it is not something that
nurses should be afraid of.
The NMC Code
Following the NMC Code should lead to nurses satisfying
the legal requirement. As mentioned above, it has three
categories under the banner of ‘standards’, and the first of
these is the most prescient: to use the best evidence. The
Code asks for evidence-based practice, and this will always
satisfy the legal standard, unless an extremely rare Bolitho
situation should present itself. An example of such a Bolitho
situation occurred in Penney v East Kent Health Authority
(2000) 55 BMLR 63, where the defendants, cervical
screeners who wrongly informed women that their
cervical smear tests were negative, wrongly definitively
classed the slides as negative, despite knowing of the risks
of false results. The court said that, even had all the experts
been agreed that this was reasonable, the court did not
find this to be logical (given the possibility of false results),
and would have applied Bolitho and found negligence in
any case. Essentially, under Bolitho, the courts reserve the
right to say that the profession’s conduct lacks logical
force and is therefore not a defence.
The second category is that of keeping skills and
knowledge up to date, including only working within
the limits of your competence. This is a reasonable
requirement, and is self-explanatory. Finally, nurses are
required to keep clear and accurate records. Again, this is
reasonable and required for obvious reasons.
Conclusion
Conforming to the Code should mean that the law will hold
no fears for nurses, as following best practice, working within
their limits and being able to show that they have done so
satisfies the law as well as the NMC. It is not ‘unreasonable’ to
ask that nurses, as well as other professionals, act ‘reasonably’,
and by following the Code and best practice nurses will
ensure that the legal standard is met.
Indeed, the law places great emphasis on what the
professional’s peers and colleagues would do in identical
situations. As this article has demonstrated, the views of
experts (on both sides) is key, and it will only be in very
rare cases that the courts will find negligence where the
nurse has conformed to a practice approved of by other
nurses. Nevertheless, Bolitho is not an unreasonable
judgment, as it is also important to remember that nurses
– and other professions – should not be allowed to set
their own standards. The legal standard should be set by
the law, with the latter having the ultimate decision-
making authority. Nevertheless, by following the Code
nurses should be safe from the law, and there is no reason
BJN
not to follow it.
Brazier M, Miola J (2000) Bye-Bye Bolam: A Medical Litigation Revolution.
Med L Rev 8(1): 85–114
McHale J, Tingle J (2007) Law and Nursing (3rd Edn). Elsevier, London
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