Breach of duty - Professional standard of care

Learning Outcomes

This article explains how breach of duty is assessed where the defendant is a professional, linking doctrinal rules to the style of SQE1 questions. It clarifies the objective professional standard of care and distinguishes it from the ordinary reasonable person test. It explains the Bolam test in detail, showing how a “responsible body of opinion” is identified, and why majority practice is not decisive. It analyzes the Bolitho refinement, focusing on logical scrutiny, risk‑benefit evaluation, and engagement with current evidence. It examines the impact of inexperience, junior status, and institutional failings on breach, and the evidential role of professional guidelines, protocols and codes of conduct. It discusses how the state of professional knowledge at the time limits both liability and hindsight reasoning. It outlines the post‑Montgomery approach to informed consent, material risk and patient autonomy, and contrasts this with Bolam‑based disclosure. It highlights common SQE1 traps, such as confusing admissible expert evidence with the ultimate legal test, overstating the protection given by Bolam, and misapplying Bolitho to questions about factual causation or pure diagnosis errors.

SQE1 Syllabus

For SQE1, you are required to understand how the law assesses breach of duty for professionals, with a focus on the following syllabus points:

• 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
• the significance of the state of professional knowledge at the time (no hindsight)
• the distinction between clinical judgment (diagnosis/treatment) and disclosure of risk

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 is an objective test tailored to the skill professed and the tasks undertaken. It asks whether the defendant acted in accordance with the standards of a reasonably competent member of that profession, taking into account the state of knowledge at the time and the rationality of the practice relied upon.

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 courts assess professional breach primarily through two related lenses. First, the Bolam test examines whether the conduct accords with a responsible body of professional opinion. Second, Bolitho requires that such opinion can withstand logical analysis, ensuring practices are reasoned, risk‑aware and defensible. Alongside these, informed consent has evolved toward patient autonomy, altering how risk disclosure is judged.

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.

Bolam embodies important nuances:

• Responsible does not mean majority. A minority view can be responsible if it is rooted in sound professional practice.
• Common practice is evidence of the standard, but not conclusive; unsafe routine is not shielded simply because it is widespread.
• The focus is the task undertaken and the skill professed. Specialists are judged by specialist standards for the work they assume.

Expert evidence frames the court’s understanding of professional practice. The court evaluates whether the body of opinion is adequately qualified, relevant to the task, and based on the state of knowledge at the time of the alleged negligence.

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.

Worked Example 1.2

An orthopaedic surgeon uses a technique supported by a well‑regarded minority of specialists but opposed by most general orthopaedists. The patient alleges negligence solely because most surgeons would have used a different technique.

Answer:
Responsible opinion need not be the majority. If the technique is accepted by a responsible body with relevant specialist knowledge for the task and reflects current knowledge, Bolam can protect the surgeon.

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.

Bolitho filters out opinions that:

• fail to weigh material risks against benefits
• rest on outdated or incomplete evidence where better knowledge was reasonably available
• ignore feasible precautions or safer alternatives without cogent reasons
• are inconsistent with the realities of the clinical or professional context

The logical analysis is not a second expert opinion; it is judicial testing of the reasoning supporting the practice. Courts still recognise a range of acceptable professional judgments, but Bolitho ensures the range is bounded by reason.

Worked Example 1.3

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.

Worked Example 1.4

A cardiologist relies on a small, outdated study to justify omitting a standard monitoring step during a high‑risk procedure, despite clear, widely available evidence of significant preventable risk. Other experts endorse the omission but do not address the newer evidence.

Answer:
Bolitho allows the court to reject the defence. Professional opinion must engage with current knowledge and weigh risks and benefits. If the reasoning is incomplete or unbalanced, the opinion is not responsible.

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.

Junior practitioners must meet the same substantive standard as a competent colleague in the same post. Practical implications include:

• Know the limits of competence and seek supervision or senior input promptly.
• Follow local systems and escalate concerns where patient or client safety may be compromised.
• Failure to request help where a competent professional would is itself negligent.

This does not prevent a separate claim against an organisation for institutional failures (e.g. inadequate supervision), but it does not relax the practitioner’s standard.

Worked Example 1.5

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.

Key Term: state of knowledge
Breach is judged by what a reasonably competent professional knew or ought to have known at the time, not with hindsight.

State of knowledge matters both ways. A practitioner is not negligent for failing to guard against risks that were not known (and not reasonably discoverable) at the time; equally, they must take account of reasonably accessible evidence that does exist at the time.

Worked Example 1.6

A consultant in 2012 uses a device later found to have a latent defect linked to rare complications. At the time, no reasonable evidence suggested the defect and no test could have revealed it.

Answer:
Absent warning signs or reasonably available knowledge in 2012, breach is unlikely. The standard is assessed by the state of knowledge at the time, not by later discoveries.

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.

Guidelines assist in three ways:

• evidential baseline: they reflect consensus on safe practice at the time
• structure: they often encode risk‑assessment and decision pathways
• accountability: departures should be documented with reasons tailored to the case

Departure from a guideline can be lawful where justified (e.g. patient‑specific contraindications, emergent circumstances), but unjustified deviation may signify breach. Conversely, slavish adherence without considering patient‑specific factors can itself be negligent.

Worked Example 1.7

A clinician departs from a national guideline due to a co‑morbid condition that makes the recommended drug unsafe for this patient, documenting the reasons and using an accepted alternative.

Answer:
A reasoned, patient‑specific departure is consistent with competent practice. Guidelines inform but do not rigidly determine the standard.

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.

Informed consent after Montgomery involves:

• identifying material risks of the proposed intervention, tailored to the patient’s circumstances
• discussing reasonable alternatives, including non‑intervention if clinically sensible
• engaging in dialogue, not merely obtaining a signature, so the patient can make an informed choice

The former Bolam‑based approach to disclosure has been overtaken. Clinical judgment remains central for diagnosis and treatment decisions, but disclosure is now judged by what a reasonable patient in the particular patient’s position would want to know. A limited therapeutic exception exists where disclosure would cause serious harm, but it is narrow and demands clear justification.

Worked Example 1.8

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.

Key Term: therapeutic exception
A narrow exception permitting non‑disclosure where informing the patient would itself cause serious harm; it is rarely justified and must be applied cautiously.

Worked Example 1.9

A clinician withholds information about a very small increased risk because they consider the patient anxious. There is no evidence that disclosure would cause serious harm beyond ordinary anxiety.

Answer:
Breach is likely. The therapeutic exception is narrow. Anxiety is not, by itself, serious harm. Material risks and reasonable alternatives should be discussed.

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.

Bolam and Bolitho work together:

• Step 1 (Bolam): Is the conduct supported by a responsible body of relevant professional opinion for the task?
• Step 2 (Bolitho): Does that opinion withstand logical analysis, including risk‑benefit assessment and engagement with current knowledge?

In applying this combined approach, courts ask:

• Were material risks appreciated, compared with anticipated benefits?
• Were feasible precautions considered, and if rejected, why?
• Was the reasoning consistent with accepted evidence and the specifics of the case?

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.
• Responsible opinion need not be the majority; what matters is whether it is responsible and logically defensible for the task undertaken.
• Inexperience or junior status does not lower the professional standard; failure to seek appropriate supervision can itself be negligent.
• The state of knowledge at the time governs breach; courts avoid hindsight and judge professionals by what was reasonably knowable then.
• Professional guidelines and codes are relevant but not conclusive evidence of the standard; documented, patient‑specific departures may be justified.
• In medical negligence, professionals must disclose material risks and reasonable alternatives; disclosure is patient‑centred after Montgomery.
• Courts will scrutinize the logic and risk‑benefit 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
• state of knowledge
• therapeutic exception