CLINICAL

NEGLIGENCE –
STANDARD OF
CARE
PART 2
OUTLINE

Standard of care and relevant factors Psychiatric Illness

• Inexperience; • Duty of care
• Error of judgment; • Children
• Departing from usual practice; • Suicide
• Literature; • Murderers
• Alternative Practice;
• Breakdown of system;
• Funding;
• Emergency
• Time
• Res Ipso Loquitor
STANDARD
OF CARE
STANDARD OF CARE IS THAT
A PERSON IS COMPETENT IN
THE SPECIALTY IN
QUESTION.
STANDARD OF CARE – APPLICATION

• How is the standard of care applied ?

• It is a question of fact that is assessed based on the knowledge available at
that time.
• There is no one size fit formula as the circumstances of each medical
negligence cases varies.
• There are various factors to be considered in the application of standard of
care.
VARIABLES TO BE CONSIDERED

• Inexperience;
• Error of judgment;
• Departing from usual practice;
• Literature;
• Alternative Practice;
• Breakdown of system;
• Funding;
• Emergency
• Time
• Res Ipso Loquitor
 EXPERIENCE ?/ INEXPERIENCE ?

• Is experience a factor that the courts

consider ? Or inexperience ?
 EXPERIENCE ?/
INEXPERIENCE ?
• Nettleship v Weston [1971] 2
QB 691

Defendant who is inexperience

at a particular task
must come up
to the standards of the
reasonably competent
and experience person
OBJECTIVE
TEST
INEXPERIENCE

Wilsher v Essex AHA [1987] QB 730

• A junior doctor inserted a catheter into a vein
rather than artery. The catheter was
mispositioned. He than asked a senior
registrar to check the position.
• The registrar failed to spot the error and the
baby was subsequently discovered to be blind
possibly as a result of the excess oxygen.
• At the CA, it was held that the standard of
care shown by inexperience doctor does not BTW – HL – Plf had failed
vary from a more experience doctor. To prove that the excess oxygen
Cause the blindness.
INEXPERIENCE

• Standard of care should take into account the “post” of the doctor but not the
doctor’s “rank” or “status”(Mustill L.J.)
• “The law requires that the trainee or learner to be judged by the same
standard as his more experienced colleagues. If it did not , inexperience
would frequently be urged as a defence to an action for professional
negligence. “ (Glidewell LJ)
INEXPERIENCE

• Is the CA prouncement in Wilsher

right ? Should there be no
difference in standard of care
between an experienced or
inexperienced doctor ?
INEXPERIENCE

FB v Princess Alexandra Hospital NHS

Trust [2017] EWCA Civ 334
• The claimant was a one-year-old child who
was taken to hospital and examined by a
junior doctor , where the key symptoms of
meningitis were missed and she
subsequently suffered brain damage.
• Here the action failed because the lower
court found that the junior doctor was not
negligent.
INEXPERIENCE

FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334

•The Court of Appeal made this observation of the duty of care of junior doctor.
•The conduct of the junior doctor had to be judged by the standard of a
reasonably competent SHO in an A&E department. The fact that the doctor was
25 and relatively inexperience does not diminish the required standard of skill
and care. Neither did the fact she had spent nearly six months in a paediatric
department elevate the required standard.
INEXPERIENCE

• The experience or length of service of the doctor is not relevant to

considering breach of duty. The doctor is to be compared with reasonably
competent doctors who work in that specific position.
INEXPERIENCE ?

• https://www.thestar.com.my/news/nation/2019/12/01/health-ministry-to-
probe-case-of-houseman-who-injured-baby-while-attempting-to-draw-blood
ERROR OF
JUDGMENT

• Does an error of judgment

equate to breach of standard
of care ?

• Are you allowed to make

mistakes ?
ERROR OF JUDGMENT

• Lord Denning both in the decision of Hucks v Cole [1993] 4 Med LR 393
and in the CA decision in Whitehouse v Jordan [1980] UKHL 12 had stated
that error of judgment is not negligent.
ERROR OF JUDGEMENT

• Lord Fracer in Whitehouse v Jordan [1981] 1 WLR 246

“ ….an error of judgment tells us nothing about whether it is negligent or not. The true position
is that an error of judgment may or may not, be negligent, it depends on the nature of the
error.”
- “ some errors of judgement may be consistent with the due exercise of professional skill,
while other acts or omissions in the course of exercising clinical judgement may be so
glaringly below the proper standards as to make a finding of negligence inevitable. The test
was whether the defendant had fallen short, in judgement or otherwise, of the standards to be
expected of an ordinary skilled surgeon.”
- Is the error one that would have been made by competent professional man ?
 ERROR OF JUDGEMENT

Ashton v Alexander and Trent Regional Health

Authority (29 January 1988, unreported)(CA)
• Here the CA ordered a new trial, saying that an
error of judgment might or might not be negligent,
the admission of mistake does not equate with an
admission of negligence.
• The appropriate test – whether or nor the error was
one a reasonably competent professional would
have made exercising proper care.
DEPARTING FROM USUAL PRACTICE

• Here the doctor would have taken a route that no other ordinary skilled
doctor would have taken if acting with reasonable care.
• A departure from accepted practice may be evidence of negligence but it is
not conclusive. Why ?
• If the doctor does depart from standard of methods of treatment, there must
be a good reason for doing so.
DEPARTING FROM USUAL PRACTICE

• Test – Whether the defendant acted with reasonable care in all the
circumstances, and the significance of compliance with or deviation from
common professional practice lies in its evidential value ?
DEPARTING FROM
USUAL PRACTICE
Chin Keow v Government of Malaysia
[1967] 1 WLR 813
• Patient died from an allergic reaction to
penicillin.
• The doctor was aware of the remote
possibility of the risk of an allergic reaction
but on carried on with his normal practice of
not enquiring about the patient’s medical
history because he had not had any mishaps
before.
DEPARTING FROM USUAL PRACTICE

• Experiments ?
• If the doctor does depart from standard of methods of treatment, there must
be a good reason for doing so.
• Patient must not be exposed to excessive risk and there should be some
attempt to provide scientific validation for new technique.
DEPARTING FROM USUAL PRACTICE

Hepworth v Kerr [1995] 6 Med LR 139

Here the anesthetic had adopted an anesthetic technique that had

never been attempted before anyone else, was found to be
negligent.

The anesthetic had practiced it on about 1500 other patients but

had never scientifically validated the practice and without the
validating could not justify departing from usual practice.

Found to be liable.
LITERATURE

• Keeping abreast with the latest medical

development published in medical press.
• Is he/she expected to read every available
item ?
 LITERATURE

• Is continuing to use an old methods

of treatment negligent ?
• No, unless it can be shown that they
were wrong or carry-on
unacceptable risk to the patient that
is no longer justified.
LITERATURE

Newburry v Bath District Health Authority [1998] 47 BMLR 138

• Here it was held that a competent consultant would keep abreast with the
latest development and adjust their methods of treatment accordingly but
would be entitled to keep to old methods where it is judged to be suitable.
LITERATURE

• Newburry v Bath District Health Authority [1998] 47 BMLR 138

• “ New methods become available does not make the continued use of the old
negligent unless and until they are shown to be wrong or to carry an
unacceptably higher risk to the patient than the new.”
 LITERATURE

Crawford v Charing Cross Hospital [1953] Times, 8

December ,CA

• The claimant developed brachial palsy in an arm

following a blood transfusion.

• At first instance the defendant were held liable on the

basis that the anesthetist had failed to read an article
published in a journal 6 months earlier.

• CA held that a surgeon could not be expected to know the

particular placement of patient’s arm was dangerous as
the fact had only been publish in one article in a recent
medical journal.
LITERATURE

• So what is a doctor expected to know ?

LITERATURE

• Is a particular technique negligent because it

is practiced differently in another country ?
• Practices adopted in another country were
not necessarily evidence of the appropriate
standard in the UK.
ALTERNATIVE THERAPY

• How is standard of care for alternative

therapy assessed ?
• Chiropractor, Chinese medical practitioners,
acupuncturist , osteopaths, physiotherapists
• Is it in comparison to orthodox medicine?
• Who are the experts ?
ALTERNATIVE
THERAPY
Shakoor v Situ [2000] 1 WLR 410

• Defendant was an experience Chinese herbal medicine

practitioner.

• He had prescribed a classic remedy to a patient that

subsequently suffered a fatal acute liver failure.

• The widow relied on evidence on a paper in orthodox

medical journal which warned of the risk.

• Here the court of 1st instant found that the prescription

by the Defendant was not inappropriate for a reasonable
herbalist and the Defendant was not liable.

.
ALTERNATIVE THERAPY

Shakoor v Situ [2000] 1 WLR 410

• The defendant had an obligation to check that there had not been any adverse report on the
remedy he used in an orthodox medical journal but since a general practitioner would not
have been negligent in failing to identify the risk, then the defendant had conformed to a
reasonable standard of care
• Here the court found that the appropriate standard was that of a reasonably competent
practitioner of alternative medicine, not a reasonably competent practitioner of medicine or
Chinese herbal medicine.
BREAKDOWN OF SYSTEM
• Breakdown of communications between
hospital staff ?
• Hospital breach its own duty of care for
failing to provide a proper system.
BREAKDOWN OF SYSTEM

Bull and Wakeham v Devon Area Health Authority [1993] 4 Med LR 117,
CA
• Took one hour to secure the attendance of a “premie- doctor” to deal with an
emergency delivery of twins resulting in one twin suffering brain damage as
result of asphyxiation.
• Here the CA found that there was an inefficient system in place to summon a
registrar or consultant in providing maternity services to be able to cope with
the premature delivery of the twins.
FUNDING
REALITY OF ECONOMY
RESULTING IN FAILURE TO
CARE.
FUNDING

Ball v Wirral Health Authority [2003] Lloyds Rep Med 165

• Part of a claim was that it was alleged that the health authority had failed to
provide adequate facilities for the care babies suffering from respiratory
distress syndrome,
• Here it was held that lack funding did not necessarily provide the basis of a
successful claim in negligence.
• Why ?
FUNDING

Bull and Wakeham v Devon Area Health Authority [1993] 4 Med LR 117, CA
• Here the issue of limited resources was raised by the health authority, but the
CA refused to accept the defence.
• The health authority were found to be liable.
Curry
“ Don’t tell us this is the best you can do if the best is not good enough.”
FUNDING
Knight v Home Office [1990] 3 AER 237
• The Claimant’s husband committed suicide while
detained in prison.
• It as held that the standard of care of the hospital may
have fallen below that expected in an NHS psychiatric
facility, but they still dismissed the claim.
• Here the courts were influenced by the fact that
resources available for prison services are limited and it
was a matter for Parliament.
EMERGENC
IES
DOES THE STANDARD OF
CARE REMAIN THE SAME
REGARDLESS OF THE
EMERGENCY ?
 TIME
FACT ARE TO BE ASSESSED AT THE TIME OF THE
NEGLIGENCE RATHER THAN AT THE TIME OF TRIAL.
PROVING BREACH

• Who has to prove the breach ?

• On the balance of probabilities.
• Res Ipso Loquitor - Exceptionally to assist – Inference of Prima Facie
Negligence.
PROVING BREACH

• CA in Ratcliffe v Plymouth and Torbay HA [1998] PIQR P170

• CA made it clear that res ipsa loquitor will rarely be relevant in medical
negligence cases because in practice the parties will have obtained relevant
evidence from the medical records and have an expert medical opinion
available.
• The issue then is simply what weight should be given to the evidence and
whether an inference of negligence is appropriate.
PSYCHIATRISTS –
NEGLIGENCE

• Clinical negligence – Mental

Health
• Can you sue successfully ?
• Causal link – Treatment and
deterioration of the patient.
PSYCHIATRY

• Is it a science ?
• Can you get expert opinions
MENTAL ILLNESS

• Depression
• Bipolar Disorder
• Schizophrenia
• Anxiety Disorders
PSYCHIATRISTS – CASES

• Failure to suspect/recognise/investigate symptoms suggestive of mental illness;

• Error/misdiagnosis or delay in diagnosis of psychiatric illness
• Prolonged or over subscription of inappropriate medication – Antipsychotic drugs
• Inadequate monitoring in the community
• Failure to investigate property or act in results in investigations
• Failing to properly assess diagnose and treat patients admitted to hospital , whether
voluntarily or compulsorily under section
• Failing to consider physical causes for psychiatric symptoms
• Failing to section/discharging/otherwise failing to detain patients at risk of suicide.
OUTLINE

• Duty of care
• Children
• Suicide
• Murderers.
PSYCHIATRISTS – DUTY OF CARE

Freville v Dill [1927] 96 LJKB 1056

• Owes a duty to patient to exercise proper care and skill and liable in damages
for loss or injury arising from the failure to exercise that care.
PSYCHIATRISTS –
DUTY OF CARE-
WHAT IS THE DUTY ?
Everett v Griffiths [1920] 3 KB 163
• The plaintiff, who had been committed a
mental hospital.
• Whether the doctor who signed the
certificate to support his committal was
liable for negligence. It was raised that the
Everett was detained on inadequate
grounds.
• It was held by the CA that the doctor
owed a duty of care to a person whom he
certified to be insane. CA Judgment was affirmed by the HL.
PSYCHIATRISTS – DUTY OF CARE- WHAT IS THE
DUTY ?

Everett v Griffiths [1920] 3 KB 163

• Here Lord Atkins
“His duty ‘is not merely a duty to take reasonable care in making inquiries, that
is, in ascertaining the necessary data, but includes a duty to exercise
reasonable professional skill in forming a conclusion from such data.”
 PSYCHIATRISTS – DUTY OF CARE- WHAT IS
THE DUTY ?

• Ensuring that compulsory detention

for medical treatment is made with
care.
• Being sectioned under the Mental
Health Act 1983
PSYCHIATRISTS –
DUTY OF CARE- WHAT
IS THE DUTY ? REGIME
Furber v Kratter (1988) Times, 21 July
• Here the patient, Furber was in-patient in
Moss Side Special Hospital when she attacked
a nurse in vicious and unprovoked manner.
• Dr. Kratter having witnessed the attacked,
placed the patient in a seclusion room for 16
days as a result of her disturbed behaviour.
• Here it was held that a wrongful regime
imposed on a psychiatric patient could be the
subject of a claim for damages.
PSYCHIATRISTS – DUTY OF CARE- CARE

Selfe v Ilford and District Hospital Management Committee [1970] 114 Sol
Jo 935
• A suicide –risk patient unobserved and with an open window behind his bed
was held to constitute a lack of proper care.
• The hospital was liable when the patient got out of the window and threw
himself off a roof.
• Duty of care is extended to a duty to protect the patient from the risk of self-
inflicted injuries.
PSYCHIATRISTS – DUTY OF CARE- CARE

Savage v South Essex Partnership NHS Foundation Trust (Mind

Intervening) [2008] UKHL 74
• Here the deceased had committed suicide on escaping from a mental
hospital.
• Here the Trust application to strike out the claim failed.
• The HL held that standard of care required when a patient was detained for
their own protection is different that the standard required to protect others.
PSYCHIATRISTS – DUTY OF CARE- CARE

Savage v South Essex Partnership NHS Foundation Trust (Mind Intervening) [2008] UKHL 74

•At common law, ‘ At common law, ‘in deciding what measures should be taken to protect the lives of
patients in mental hospitals, or of patients in general hospitals who are suffering from mental illness, the
authorities will have to take account of the vulnerability of these patients – including a heightened risk
they may commit suicide.’ 
Under Article 2, health authorities are under an over-arching obligation to protect the lives of patients in
their hospitals which ‘requires health authorities to ensure that the hospitals for which they are
responsible employ competent staff and that they are trained to a high professional standard. In addition,
the authorities must ensure that the hospitals adopt systems of work which will protect the lives of
patient
 CHILDREN
DO CHILDREN REQUIRED MORE ATTENTION ?
CHILDREN – MEDICAL CONTEXT

Newham v Rochester and Chatham Joint Hospital Board [1936] Times ,28
February
• Seven year old boy was left without supervision near an open window and
fell out, the hospital was liable.
CHILDREN – NON-MEDICAL CONTEXT

Gravestock v Lewisham Group Hospital Management Committee [1955]

Times, 25 May
• Here a nine-year-old girl injured herself when she ran into a glass swing
doors in the hospital ,at a time when the orderly was momentarily absent.
• Here the duty of care of the hospital was that of an ordinary prudent parent.
 SUICIDE

• Are psychiatrist and hospitals

responsible when a patient
commits suicide ?
• Do you have to prevent the suicide?
SUICIDE
Mahmood v Siggins [1996] 7 Med LR 76
• Here a GP was held to have been negligent
for not referring a manic depressive to the
local community mental health team.
• The patient had committed suicide by
jumping from the 3rd floor balcony.
SUICIDE

D v Southside Tyneside Healthcare NHS Trust [2004] PIQR P150

• The claimant was put on hourly observation had left the hospital,
swallowed medication and suffered brain injury.
• Here the CA held that there was a reasonable body of professional opinion
that supported the contention that hourly observation was sufficient and that
observation every 15 minutes was not called for.
MURDERER
S
ARE HOSPITALS AND
DOCTORS RESPONSIBLE FOR
PREVENTING SOMEONE
FROM KILLING?
MURDERERS

Clunis v Camden and Islington Health Authority [1996] Times , 27 December

• Here a mental patient had killed a complete stranger in the tube station.
• He sought damages for the consequences of the manslaughter.
• Here the HC judge held that claimant was not prevented from seeking indemnity for damages that he
had himself had to pay to others as a result of these activities – he could recover if he could should
that his mental condition had deteriorated as a consequence of the murder, or damages flowing from
his future as a potentially life long secure mental patient or damages representing such sums as he
might be liable to pay to his victim’s dependent.
• Here the CA reversed the decision.
MURDERERS

Clunis v Camden and Islington Health Authority [1996] Times , 27

December
• The Court of Appeal held that “the public policy that the court will not lend
its aid to the litigant who relies on his own criminal or immoral act (was) not
confined to particular causes of action”.
MURDERERS

Henderson v Dorset Healthcare University NHS

Foundation [2016] EWHC 3275(QB)
•The Claimant had stabbed her mother to death
•She was suffering from paranoid schizophrenia at
the time and her condition had recently worsened.
•Based on public policy reasoning and pursuant to
the CA decision in Clunis v Camden, the claim was
dismissed.
END