Breach of duty - Professional standard of care

Learning Outcomes

After reading this article, you will be able to explain how the law determines the standard of care for professionals in negligence claims, apply the Bolam and Bolitho tests to exam scenarios, distinguish between general and professional standards, and identify common pitfalls in SQE1 questions on breach of duty by professionals.

SQE1 Syllabus

For SQE1, you are required to understand how the law assesses breach of duty for professionals. Focus your revision on:

• the objective standard of care in negligence and how it is modified for professionals
• the Bolam test and its application to professional defendants
• the Bolitho refinement and the court’s scrutiny of professional opinion
• the irrelevance of inexperience or junior status in setting the standard
• how professional guidelines, codes, and logical reasoning affect the standard of care
• the impact of recent case law, especially in medical negligence and informed consent.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the Bolam test, and when does it apply?
2. How does the Bolitho refinement affect the court’s approach to professional opinion?
3. True or false? A newly qualified professional is held to a lower standard of care than an experienced colleague.
4. What must a professional defendant show to avoid liability for breach of duty?
5. In what circumstances can a court reject a body of professional opinion as a defence?

Introduction

In negligence, the standard of care is usually that of the reasonable person. However, when the defendant is a professional, the law applies a modified standard: the professional standard of care. This article explains how the courts determine whether a professional has breached their duty, focusing on the Bolam and Bolitho tests, and highlights key points for SQE1.

Key Term: professional standard of care The standard of care expected from a person who holds themselves out as possessing a particular skill or profession, judged by the standards of a reasonably competent member of that profession.

The Bolam Test: The Professional Standard

When a defendant claims to have a particular skill or profession, the courts use the Bolam test to assess breach of duty. Under this test, a professional is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that area.

Key Term: Bolam test A professional is not negligent if their actions are supported by a responsible body of opinion in their field, even if others disagree.

Worked Example 1.1

A hospital doctor chooses not to administer a muscle relaxant before electroconvulsive therapy, following the practice of some colleagues. The patient suffers a fracture. Is the doctor negligent?

Answer: The doctor is not negligent if a responsible body of medical opinion supports the decision, even if other doctors would have acted differently.

The Bolitho Refinement: Logical Scrutiny

The Bolam test is not absolute. In Bolitho, the courts clarified that a professional opinion must be capable of withstanding logical analysis. If the court finds that the professional practice is not reasonable or responsible, it can reject it as a defence.

Key Term: Bolitho refinement The court may disregard a body of professional opinion if it is not reasonable or cannot withstand logical scrutiny.

Worked Example 1.2

A consultant fails to intubate a child with breathing difficulties. Some experts support this decision, but their reasoning is inconsistent and ignores key risks. Can the court still accept their opinion?

Answer: No. If the court finds the supporting opinion is not logically defensible, it can reject it and find the consultant negligent.

Inexperience and the Standard of Care

A professional’s inexperience or junior status does not lower the standard of care. All professionals are judged by the standard of a reasonably competent person in that role.

Key Term: inexperience irrelevant The standard of care for professionals is set by the role, not by the individual’s experience or length of service.

Key Term: responsible body of opinion A group of professionals whose views are considered competent and reasonable in the relevant field.

Worked Example 1.3

A junior doctor on their first shift misses a diagnosis that a competent doctor in that post would have made. Is the junior doctor held to a lower standard?

Answer: No. The junior doctor is judged by the standard of a reasonably competent doctor in that post, regardless of experience.

Professional Guidelines and Codes

Professional guidelines, codes of conduct, and published standards are relevant but not conclusive. Compliance with guidelines is strong evidence of meeting the standard, but the court will consider all the circumstances.

Key Term: professional guidelines Written standards or codes issued by a professional body, used as evidence of proper practice but not always determinative.

Recent Developments: Informed Consent and Patient Autonomy

The courts have moved towards a more patient-centred approach, especially in medical negligence. Professionals must now ensure that clients or patients are informed of material risks and alternatives.

Key Term: material risk A risk that a reasonable person in the claimant’s position would likely consider significant, or that the professional knows the claimant would attach importance to.

Worked Example 1.4

A surgeon fails to inform a patient of a 10% risk of a serious complication. The patient suffers that complication and claims they would have chosen a different treatment if informed. Has the surgeon breached their duty?

Answer: Yes. The surgeon should have disclosed material risks. Failing to do so is a breach, even if some colleagues would not have warned the patient.

Logical Analysis and Risk-Benefit Assessment

The Bolitho refinement means that courts will scrutinize the reasoning behind professional practices. The court will consider whether the risks and benefits were properly weighed and whether the opinion is rational.

Exam Warning

The Bolam test does not protect a professional whose practice is not logically defensible. Courts can reject expert evidence if it is unreasonable or ignores key risks.

Summary Table: Professional Standard of Care

Key Point Checklist

This article has covered the following key knowledge points:

• The professional standard of care is set by the Bolam test: actions must be supported by a responsible body of opinion in the field.
• The Bolitho refinement allows the court to reject professional opinion if it is not reasonable or cannot withstand logical analysis.
• Inexperience or junior status does not lower the standard of care for professionals.
• Professional guidelines and codes are relevant but not conclusive evidence of the standard.
• In medical negligence, professionals must disclose material risks and alternatives to patients.
• Courts will scrutinize the logic and reasoning behind professional practices, not just their acceptance by peers.

Key Terms and Concepts

• professional standard of care
• Bolam test
• Bolitho refinement
• inexperience irrelevant
• responsible body of opinion
• professional guidelines
• material risk