Professional standard of care

Introduction

Breach of duty in professional negligence refers to a professional's failure to meet the standards of skill and care expected in their field. This legal concept establishes criteria for determining when a professional has acted negligently, guided by established tests such as the Bolam test and its refinements through case law. Understanding these principles is important for evaluating professional conduct and legal liability across various professions.

The Professional Standard of Care

Professionals are held to higher expectations than the average person due to their specialized knowledge and the trust placed in them. They must exhibit a level of proficiency and diligence that aligns with the accepted practices of their profession. Consider an experienced surgeon performing a critical operation; the precision and care required are of utmost importance. Similarly, professionals in all fields must carry out their duties with due care and skill to meet established standards.

The Bolam Test: Establishing Professional Expectations

Originating from Bolam v Friern Hospital Management Committee [1957], the Bolam test serves as a key principle for assessing professional negligence. It asserts that a professional is not negligent if their actions are in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art.

Key aspects include:

1. Accepted Practice: The professional's actions align with methods endorsed by their peers.

2. Responsible Body: Support exists from a group of professionals considered competent in the field.

3. Logical Basis: The practice must have a reasonable justification, even if not universally adopted.

The Bolitho Refinement: Judicial Scrutiny of Professional Opinion

The Bolitho principle, stemming from Bolitho v City and Hackney Health Authority [1998], refines the Bolam test by allowing courts to evaluate the logical basis of professional opinions. It authorizes the judiciary to consider whether the professional opinion withstands logical analysis.

Significant points:

1. Judicial Oversight: Courts may disregard opinions that are not logically defensible.

2. Risk-Benefit Analysis: Professional practices are examined in light of their risks and benefits.

3. Rational Examination: Experts must demonstrate that they have weighed comparative risks.

The Two-Stage Test for Breach in Professional Negligence

When evaluating allegations of breach in professional negligence, a structured two-stage test is applied:

1. Determining the Standard of Care:

   • Assess the professional's role, qualifications, and specialization.
   • Consider the standards and practices accepted within the profession.
   • Examine compliance with relevant professional guidelines and codes of conduct.

2. Evaluating Compliance with the Standard:

   • Analyze the specifics of the professional's actions in the context of the situation.
   • Compare these actions against the established standard of care.
   • Account for any circumstances that may have influenced the professional's decisions.

Special Considerations in Professional Negligence

Skill Level and Experience Irrelevance

The standard of care is consistent, regardless of a professional's level of experience. As established in Wilsher v Essex Area Health Authority [1987], a junior professional is held to the same standard as a more experienced colleague performing the same role.

Important elements:

• Uniform Standards: All professionals must meet the established standard of care, irrespective of experience.
• Public Protection: This approach ensures clients receive a consistent level of care and skill.

Evolution of Professional Standards

Professional standards are not static; they change with advancements in knowledge, technology, and societal expectations. This dynamic nature influences legal assessments of professional conduct.

Considerations include:

1. Continuing Education: Professionals have a duty to stay informed about developments in their field.
2. Technological Advancements: Adoption of new technologies can alter accepted practices.
3. Changing Societal Values: Shifts in values, such as increased emphasis on client autonomy, impact professional duties.

Case Law Analysis: Key Decisions Shaping the Professional Standard

Montgomery v Lanarkshire Health Board [2015]

This landmark case redefined the duty of care owed by medical professionals regarding informed consent.

Core principles:

• Material Risks Disclosure: Professionals must inform clients of any material risks involved in proposed treatments or procedures.
• Client-Centered Approach: A risk is material if a reasonable person in the client's position would likely attach significance to it.
• Shared Decision-Making: Emphasizes the importance of involving clients in decisions about their care.

Implications:

• The case extends beyond healthcare, influencing how professionals in various fields communicate risks to clients.
• It highlights the shift towards greater client autonomy and informed decision-making.

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

Building on the principles from Montgomery, this case highlights the necessity for professionals to seek specialist advice when appropriate.

Key points:

• Duty to Refer: Professionals must recognize the limits of their skills and refer clients to specialists when necessary.
• Standard of Care: Failing to seek a second opinion in complex matters may constitute a breach of duty.

Implications:

• Emphasizes the expectation that professionals should consult peers or specialists to ensure clients receive the best possible advice.

Application Across Various Professional Fields

The principles governing professional negligence apply broadly across different industries. Let's look at how these principles are applied today:

Engineering

Engineers are expected to comply with current safety standards and industry regulations. For instance, if an engineer designs a building without considering the latest earthquake-resistant technologies, and the structure fails during a seismic event, they may be liable for negligence.

Financial Services

Financial advisors must provide guidance that aligns with regulatory requirements and suits the client's needs. For example, recommending high-risk investments to a client with a low-risk tolerance, without fully explaining the risks involved, could be deemed negligent.

Information Technology

IT professionals have a responsibility to implement up-to-date cybersecurity measures. If a cybersecurity consultant fails to protect a client's data against known vulnerabilities, leading to a data breach, they may be held liable for professional negligence.

Conclusion

The complex interplay between legal principles defines the professional standard of care in negligence cases. The Bolam test establishes that following accepted professional practice can shield a professional from liability. However, the Bolitho refinement allows courts to scrutinize the logical basis of those practices. Together, they ensure that professional standards are both respected and rational.

In practice, professionals must:

• Follow Established Standards: Align their actions with accepted practices within their field.
• Maintain Logical Reasoning: Ensure that their professional judgments withstand logical analysis.
• Stay Informed and Update Their Knowledge: Continuously update their knowledge and respond to advancements.

By understanding how these principles interact, professionals can better perform their duties and uphold the standards expected of them. Legal assessments of negligence will consider not only conformity with accepted practices but also the rationality behind professional decisions.