Breach of duty - Professional standard of care

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Overview

Understanding the concept of breach of duty in professional settings is essential for the SQE1 FLK1 exam and a future legal career. This topic covers the standards used to assess negligence in professionals, including key legal tests and landmark cases. It is vital for prospective solicitors as it helps in evaluating professional conduct and liability.

The Professional Standard of Care

Professionals are held to a higher level of accountability than the average person due to the trust placed in them and the potential impact of their actions. They must exhibit skills and diligence that meet the norms of their field.

The Bolam Test: A Core Principle

The Bolam test, from Bolam v Friern Hospital Management Committee [1957], is a key measure for professional negligence. It states a professional is not negligent if adhering to a practice accepted by respected peers in their field.

Key aspects include:

  1. Accepted Practice: Conduct aligns with a respected opinion in the field.
  2. Responsible Body: Support from qualified and competent professionals.
  3. Logical Basis: Practice must have a logical foundation, even if not universally accepted.

The Bolitho Refinement: Judicial Examination

The Bolitho principle, from Bolitho v City and Hackney Health Authority [1998], allows courts to examine the logic behind professional opinions rather than just accepting them.

Key points:

  1. Courts can dismiss opinions if found illogical.
  2. Opinions must withstand analysis and demonstrate consideration of risks and benefits.
  3. Judges must ensure experts have evaluated comparative risks.

The Two-Stage Breach Test in Professional Contexts

Courts use a two-stage test for breach of duty in professional negligence:

  1. Determining the Standard of Care:

    • Review qualifications and specialization.
    • Consider professional expectations.
    • Assess relevant guidelines.

  2. Evaluating Compliance:

    • Analyze case specifics.
    • Compare to established standards.
    • Consider any circumstances that may influence the outcome.

Special Considerations in Professional Negligence

Skill and Experience

A fundamental principle is that the standard of care is consistent, regardless of experience. This was established in Wilsher v Essex Area Health Authority [1987], ensuring a consistent level of public protection.

Key points:

  • Inexperience is not a valid defense.
  • Standards are based on a reasonable level of competence.
  • Ensures equal protection for the public.

The Changing Nature of Professional Standards

Professional standards change with new knowledge, technology, and societal norms. This adaptability influences legal judgments:

  1. Continuous Learning: Professionals must stay updated.
  2. New Technologies: Standards shift with new tools.
  3. Societal Changes: Reflects evolving values, such as patient autonomy.

Case Law Analysis: Landmark Decisions

Montgomery v Lanarkshire Health Board [2015]

This case redefined medical law, favoring patient-centered care over previous practices.

Key principles:

  • Patients must be informed of material risks.
  • Risk is material if a reasonable person would find it significant.
  • Highlights the importance of informed consent.

Implications:

  • The duty to inform extends to other professions.
  • Balancing expertise with respect for client autonomy is crucial.

Muller v King's College Hospital NHS Foundation Trust [2017]

This case applied Montgomery principles beyond medicine, underscoring the need for expert consultation.

Key points:

  • Failure to seek a second opinion breached duty.
  • Encourages recognizing and acting on expertise limitations.

Implications:

  • Professionals must seek help when facing complex situations.
  • Duty includes acknowledging competency boundaries.

Application in Various Professional Fields

Professional negligence principles apply across industries. Here are a few examples:

Engineering

Engineers must meet current safety and best practices, surpassing outdated standards.

Example: Designing a bridge with outdated methods could result in negligence if modern practices are not followed.

Financial Services

Advisors must align advice with regulations and tailored client needs.

Example: Suggesting high-risk investments without explaining the risks is negligence, even if legal.

Information Technology

IT professionals need to keep up with cybersecurity threats and regulations.

Example: Creating software without current encryption standards could lead to negligence claims.

Conclusion

Understanding the professional standard of care is key for SQE1 FLK1 exam success and future practice. The relationship between the Bolam test, Bolitho principle, and evolving legal standards creates a framework for assessing negligence. Key takeaways include:

  1. The Bolam test sets baseline professional conduct.
  2. Bolitho allows courts to challenge negligent opinions.
  3. Standards shift with technological and societal changes.
  4. Inexperience does not lower expected care standards.
  5. Client involvement is crucial across professions.
  6. Professionals should recognize expertise limits and seek additional input.

By mastering these concepts, aspiring solicitors will be prepared to address the complexities of professional negligence in their careers.