Doctor's Duty of Care

Introduction

A doctor’s duty of care is a core part of medical negligence law in England and Wales. It defines the legal obligations owed by healthcare professionals to patients once a clinical relationship exists. In simple terms, doctors must use reasonable skill and care when examining, diagnosing, advising, and treating, so that avoidable harm is not caused.

This guide explains when the duty arises, how the standard of care is assessed (including the Bolam and Bolitho tests), what is required when informing patients about risks and alternatives, how breach and causation are proven, and the special issues that arise with children, emergencies, and patients who lack capacity. It also summarises leading cases and offers practical steps for clinicians and lawyers.

What You’ll Learn

• When a doctor–patient duty of care arises, including hospitals and ambulance services
• How the standard of care is set by Bolam, qualified by Bolitho
• What valid consent requires after Montgomery, and how Chester affects causation
• How breach, causation, and damage are established in medical negligence claims
• Hospital responsibility for the acts of clinical staff and contractors
• Special issues: children (Gillick competence), capacity, emergencies, and end‑of‑life care
• Key cases to know and how to apply them to fact patterns
• Practical steps to reduce clinical risk and prepare or defend a claim

Core Concepts

When and to whom is the duty owed?

• A duty of care arises once a doctor accepts responsibility for a patient, typically when providing advice, diagnosis, or treatment in person or remotely.
• Hospitals owe duties to patients they accept for treatment. They are usually liable for employees’ negligence and may also be liable where care is provided by non‑employees if the hospital has assumed responsibility for the patient’s safety (see Cassidy v Ministry of Health).
• The ambulance service assumes a duty once it accepts a 999 call and decides to respond. Delays or failures can be actionable where harm is foreseeable (see Kent v Griffiths).
• Outside formal settings, a doctor who voluntarily provides clinical advice or treatment can create a duty if the patient reasonably relies on it.
• In screening and triage settings, a duty can arise if clinical judgment is exercised and the patient relies on that assessment.

The standard of care: Bolam, qualified by Bolitho

• The starting point is the Bolam test: a doctor is not negligent if the act or omission is supported by a responsible body of medical opinion within the relevant specialty, even if others disagree (Bolam v Friern Hospital Management Committee).
• Bolitho qualification: the court must be satisfied that the professional opinion relied upon is capable of withstanding logical analysis. Expert evidence that is not reasoned or is contrary to established facts may be rejected (Bolitho v City and Hackney HA).
• The standard is objective. A junior doctor is judged by the standard of a reasonably competent doctor in that role; lack of experience is not a defence (Wilsher v Essex AHA).
• The standard is assessed at the time of the events, not with hindsight. Clinical guidelines and local protocols are relevant but not decisive; compliance may support a defence, while unexplained departures may support a breach argument.

Consent to treatment and patient information

• The modern law is patient‑centred. Doctors must take reasonable care to ensure patients are aware of material risks and reasonable alternatives to the proposed treatment (Montgomery v Lanarkshire Health Board).
• A risk is material if a reasonable person in the patient’s position would likely attach significance to it, or the doctor is or should be aware that the particular patient would likely attach significance to it.
• Consent is a process, not a signature. It requires a dialogue about benefits, risks (including low but serious risks), and alternatives, tailored to the patient’s values and circumstances. Documentation should reflect this discussion.
• The rare “therapeutic exception” (withholding information if disclosure would cause serious harm) is narrowly applied. Emergencies where the patient lacks capacity are treated separately under necessity and the Mental Capacity Act 2005.
• Where a failure to warn results in the very risk materialising, Chester v Afshar shows that causation may be satisfied even if the patient might have had the procedure on another day. Montgomery is the main authority on disclosure; Chester addresses causation in failure‑to‑warn cases.

Breach in practice: diagnosis, treatment, and follow‑up

• Diagnosis: take a proper history, examine appropriately, consider reasonable differentials, and arrange tests or referral where indicated. Safety‑netting advice (what to watch for, when and how to seek help) should be clear and documented.
• Treatment and prescribing: choose evidence‑based options suited to the patient, check interactions and contraindications, and monitor response. Escalate if deterioration occurs.
• Post‑operative and inpatient care: monitor for complications and respond to signs of sepsis or deterioration. Failures can have criminal as well as civil consequences (R v Misra and Srivastava).
• Test results and follow‑up: have reliable systems to track, review, and act on results, and to recall patients. Missed results are a common source of claims.
• Handovers and referrals: communicate clearly, include critical information, and ensure urgent referrals are acted upon.

Causation and proof of harm

• The claimant must show that, on the balance of probabilities, the breach caused the harm (“but for” the negligence, the injury would not have occurred).
• Where multiple independent factors could have caused the injury, the claimant must still prove that the negligent act was the cause; otherwise the claim may fail (Wilsher v Essex AHA).
• In some clinical contexts, the “material contribution” approach may be applied where cumulative causes contribute to injury, but the primary test remains the “but for” test.
• For failure to warn, Chester v Afshar allows recovery where the risk that should have been disclosed materialises; the law treats the lack of warning as causative of the harm in order to give real effect to the duty to inform.
• Loss must be foreseeable and not too remote. Damages aim to put the claimant, so far as money can, in the position they would have been in absent the negligence.

Special situations: children, capacity, emergencies, and end‑of‑life

• Children: a child with sufficient understanding and intelligence to make decisions about treatment is “Gillick competent” and can consent without parental approval (Gillick v West Norfolk and Wisbech AHA). Disputes may require court involvement in the child’s best interests.
• Adults lacking capacity: decisions are taken under the Mental Capacity Act 2005 in the person’s best interests. Involve those close to the patient where appropriate and record the decision‑making process.
• Emergencies: treatment may be given without consent if it is immediately necessary to save life or prevent serious deterioration and the patient lacks capacity.
• End‑of‑life care: it is lawful to withhold or withdraw life‑sustaining treatment that is not in the patient’s best interests, following proper decision‑making and documentation (Airedale NHS Trust v Bland).
• Hospital responsibility: providers are often vicariously liable for staff and may have a non‑delegable duty to ensure reasonable care throughout a patient’s treatment (Cassidy v Ministry of Health; see also later developments in non‑delegable duty case law).

Key Examples or Case Studies

• Cassidy v Ministry of Health [1951] 2 KB 343

  • Context: Patient suffered injury after hospital treatment.
  • Key point: Hospitals owe a duty to patients they accept for treatment and can be liable for negligent acts of clinical staff, including where responsibility for care is assumed.

• Kent v Griffiths [2001] QB 36

  • Context: Ambulance delayed after accepting a 999 call; claimant suffered harm.
  • Key point: Once an ambulance service accepts a call, it owes a duty of care to the individual; unjustified delay can be actionable.

• Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

  • Context: Psychiatric treatment and differing medical opinions on accepted practice.
  • Key point: No negligence if a responsible body of medical opinion supports the doctor’s conduct.

• Bolitho v City and Hackney HA [1998] AC 232

  • Context: Failure to intubate; conflicting expert opinions.
  • Key point: Expert opinion must be capable of logical analysis; courts may reject unsupported or illogical views.

• Wilsher v Essex Area Health Authority [1988] AC 1074

  • Context: Premature baby developed retinopathy; multiple possible causes.
  • Key point: Junior doctors are judged by the same standard as reasonably competent practitioners in that role; causation must be proven where several independent causes exist.

• Montgomery v Lanarkshire Health Board [2015] UKSC 11

  • Context: Shoulder dystocia risk in childbirth not discussed.
  • Key point: Doctors must inform patients of material risks and reasonable alternatives; the test is patient‑focused.

• Chester v Afshar [2005] 1 AC 134

  • Context: Failure to warn of a small but serious risk; risk materialised.
  • Key point: Causation adapted in failure‑to‑warn claims to reflect the importance of patient autonomy.

• R v Misra and Srivastava [2005] 1 Cr App R 328

  • Context: Post‑operative infection not recognised or treated.
  • Key point: Gross negligence manslaughter can arise in extreme cases of clinical failure leading to death.

• Airedale NHS Trust v Bland [1993] AC 789

  • Context: Withdrawal of artificial nutrition and hydration in a patient in a persistent vegetative state.
  • Key point: Withdrawal can be lawful where continued treatment is not in the patient’s best interests, following proper procedures.

Practical Applications

• Establishing the duty

  • Ensure clear acceptance of patients and timely triage. If a service accepts responsibility (e.g., ambulance response), assume a duty exists to act reasonably and promptly.

• Meeting the standard of care

  • Use up‑to‑date guidelines, but exercise independent clinical judgment and record reasons for any departures.
  • Seek senior input when needed; supervision and escalation protect patients and reduce risk.

• Getting consent right

  • Tailor discussions to the individual. Explain material risks (including rare but serious ones), likely benefits, and reasonable alternatives.
  • Check understanding and document the conversation, not just the signed form.

• Diagnosis, treatment, and monitoring

  • Take a thorough history and exam; consider red flags and differentials; arrange appropriate tests and referrals.
  • Provide safety‑netting advice with clear triggers for returning or seeking urgent help.
  • Monitor post‑procedure patients; act promptly on signs of deterioration, including sepsis.

• Results handling and follow‑up

  • Use reliable systems to track tests, ensure results are reviewed, and patients are recalled where needed. Close the loop in records.

• Children and capacity

  • Assess Gillick competence in young people; involve parents where appropriate. For adults lacking capacity, follow the Mental Capacity Act 2005 and record best‑interests decisions.

• Emergencies and end‑of‑life

  • In emergencies, treat under necessity if the patient lacks capacity, documenting the rationale. For end‑of‑life decisions, follow best‑interests processes, consider second opinions, and involve families.

• Provider responsibilities

  • Ensure adequate staffing, training, and protocols. Clear delegation and oversight reduce the chance of system errors for which the provider may be liable.

• For litigators and claims teams

  • Map the timeline: duty, breach (with Bolam/Bolitho analysis), causation, and loss.
  • In consent cases, assess disclosure against Montgomery and consider Chester on causation.
  • Secure appropriate experts early, identify guidelines in force at the time, and evaluate records for safety‑netting and follow‑up.

Summary Checklist

• Duty arises when a clinician or provider accepts responsibility for a patient.
• Hospitals and ambulance services owe duties once care is accepted.
• Standard of care: Bolam applies, but expert opinion must be logical (Bolitho).
• Consent is patient‑centred: disclose material risks and reasonable alternatives (Montgomery).
• Failure to warn can satisfy causation where the risk materialises (Chester).
• Junior status does not lower the standard; causation must still be proven (Wilsher).
• Monitor and act on red flags; track and act on results; document safety‑netting.
• For children, assess Gillick competence; for adults lacking capacity, apply the Mental Capacity Act 2005 and best‑interests decisions.
• End‑of‑life decisions can lawfully withhold or withdraw treatment not in a patient’s best interests (Airedale v Bland).
• Keep clear, contemporaneous records to support clinical reasoning and consent discussions.

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