Breach of duty

What does breach of duty mean?

In clinical negligence, breach of duty is the question of whether the healthcare provided met the standard required by law.

The fact that a patient was injured, treatment failed or another clinician would have acted differently does not by itself answer that question. The court considers what a reasonably competent healthcare professional should have done in the circumstances.

Breach can concern something that was done, such as selecting or performing treatment, or something that was not done, such as failing to investigate symptoms, refer a patient, act on a test result or monitor a changing condition appropriately.

What is the Bolam test?

For questions involving professional skill and judgment in diagnosis and treatment, the starting point is commonly called the Bolam test or, in more recent Supreme Court language, the professional practice test.

In broad terms, a clinician will not ordinarily be negligent if the approach taken was accepted as proper by a responsible body of appropriately skilled professional opinion.

This matters because medicine does not always produce one objectively correct treatment decision. Competent clinicians may reasonably disagree about diagnosis, investigation, treatment or management.

What did Bolitho change?

Bolitho v City and Hackney Health Authority clarified the court’s role when professional opinion is relied upon to justify diagnosis or treatment.

The House of Lords explained that a court is not bound to accept a body of professional opinion merely because experts genuinely hold it. The opinion must be capable of being regarded as responsible, reasonable and respectable.

In particular, where treatment involves weighing risks against benefits, the reasoning relied upon should demonstrate that those competing considerations have been addressed and that the conclusion is defensible.

If, in a rare case, the professional opinion relied upon cannot withstand logical analysis, the court can reject it.

Can two different treatment approaches both be reasonable?

Yes.

A clinical negligence case is not decided by asking which of two reasonable approaches the court, another doctor or an expert personally prefers.

If different approaches are each supported by responsible and logically defensible professional opinion, the fact that another clinician would have chosen differently does not establish a breach of duty.

This is important in areas where treatment choices involve genuine clinical judgment, uncertainty, competing risks or several accepted management options.

Is the standard judged with hindsight?

The standard of care is concerned with what was reasonably required in the circumstances when the healthcare decision was made.

An outcome may later reveal information that was not available to the treating clinician. Equally, the fact that a serious outcome eventually occurred can make earlier events look more obvious than they reasonably appeared at the time.

The legal investigation therefore examines the information that was available or reasonably ought to have been available, the clinical circumstances at the relevant time and what a reasonably competent professional should then have done.

How can breach arise in diagnosis and investigation?

Breach of duty can concern the way symptoms, test results and clinical findings were assessed.

Depending on the circumstances, questions may include whether there was a failure to:

• take an adequate history;
• carry out an appropriate examination;
• order or consider appropriate investigations;
• recognise important symptoms or test results;
• consider a relevant differential diagnosis;
• refer to another clinician or specialist;
• act on abnormal results;
• arrange appropriate follow-up; or
• reconsider the diagnosis when the patient’s condition changed.

The existence of a missed or delayed diagnosis does not itself establish breach. The question is whether the diagnostic or investigative approach fell below the standard reasonably required at the relevant time.

How can breach arise in treatment and monitoring?

Treatment cases can involve the decision to treat, the treatment selected, the way it was carried out and the care provided afterwards.

Issues may include whether there was a failure to:

• choose an appropriate treatment;
• carry out a procedure with appropriate skill and care;
• monitor the patient’s response;
• recognise deterioration or complications;
• respond appropriately to a developing problem;
• prescribe or administer medication safely;
• arrange suitable follow-up; or
• escalate care when the patient’s condition required it.

A complication occurring during or after treatment does not automatically prove that the procedure was performed negligently. Some complications can occur despite reasonable care.

Does Bolam apply to informed consent?

Not in the same way.

In Montgomery v Lanarkshire Health Board, the Supreme Court rejected the idea that a doctor’s duty to disclose treatment risks should generally be determined by asking what a responsible body of doctors would have disclosed.

A doctor must take reasonable care to ensure that the patient is aware of material risks involved in the recommended treatment and of reasonable alternative or variant treatments.

A risk is material where, in the circumstances, a reasonable person in the patient’s position would be likely to attach significance to it, or where the clinician knows or should reasonably know that the particular patient would be likely to attach significance to it.

Which alternative treatments have to be discussed?

Montgomery requires patients to be informed about reasonable alternative or variant treatments. The later Supreme Court decision in McCulloch v Forth Valley Health Board explained how the law decides which alternatives count as reasonable.

The identification of a reasonable alternative treatment is itself a matter of professional skill and judgment. The professional practice test therefore applies at that stage.

Once the reasonable treatment options have been identified, the clinician’s advisory duty applies: the patient should be informed about those reasonable alternatives and the material risks relevant to them.

This creates an important two-stage distinction:

• Clinical judgment: identify which treatment options are reasonable or clinically appropriate, applying the professional practice test.
• Patient decision-making: explain the recommended treatment, the reasonable alternatives and their material risks so that the patient can make an informed choice.

McCulloch also confirms that no treatment may itself be a reasonable alternative where the circumstances support it.

Who decides whether the standard was breached?

Clinical negligence investigations frequently require evidence from an independent expert practising in the relevant field.

The expert’s role is to explain the clinical issues, the professional standards that applied and whether the care was within a responsible range of practice.

The court ultimately decides the legal question of breach. Expert evidence is usually essential to that decision where specialised clinical judgment is involved, but the court is not required to accept an opinion that cannot withstand proper scrutiny.

This is the practical significance of Bolam and Bolitho working together: responsible professional practice is central to the standard of care, while the court retains responsibility for determining whether the opinion relied upon is legally defensible.

Does proving a breach mean compensation follows?

No.

After establishing a breach of duty, the next major question is causation: what probably would have happened if appropriate care had been provided?

A patient may establish that part of their care fell below the required standard but still be unable to show that the breach caused additional injury or loss. Conversely, where a breach did alter the outcome, the claim focuses on the harm attributable to that breach.