This article will look at the civil law of negligence and how a patient may bring a case against you as a non-medical prescriber (NMP). Negligence is a tort and has been developed in English law under common law provisions. A tort is derived from the Norman French word meaning ‘wrong' and is now legally defined as a civil wrong. If a member of the public, such as a patient, feels that a tort has been committed against them, then they might seek re-dress from the civil courts. The civil court's decisions are based on judicial decisions in previous case law. To launch a successful claim into negligence, it is necessary to prove the following:
- The patient (plaintiff) was owed a duty of care by the defendant (prescriber)
- The defendant breached that duty of care by failing to reach the standard required of them by law
- That the breach in the standard of care or harm was caused to the plaintiff
Duty of care
The plaintiff must first establish that the defendant owed them a legal duty of care. In medical negligence, the existence of a duty owed to the patient is usually regarded as automatic, even if the patient has left the hospital. A duty of care appears to be owed as soon as the patient presents for treatment. This was established by the case Donoghue v Stephenson (1932), in which the House of Lords held, for the first time in this country, that there could be liability for negligently causing personal injury. In this case, a woman claimed damages after drinking ginger beer from a bottle that was contaminated by a decomposing snail. The manufacturer argued that, as there was no contract with Mrs Donoghue, because she had not bought the drink, there was no duty of care towards her. However, the court held that in law we owe a duty of care to our neighbours, whom the court described as: ‘persons who are so closely and directly affected by my act or omission that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omission in questions’. A capable adult patient can absolve you of your duty by refusing the treatment you offer.
The leading case in establishing whether a person is owed a duty of care is Caparo Industries plc v Dickson (1990). This was a financial case, and the courts decided that the shareholders were owed a duty of care by the auditors. The House of Lords stated that ‘the court considers it fair, just and reasonable that the law should impose a duty of care on a given scope upon the one party for the benefit of the other’. There is a wide scope of the duty of care owed by a clinician to a patient and covers every facet of their involvement with the patient. Lord Diplock, in Sidaway v Bethlem Royal Hospital (1985), described it as a single comprehensive duty covering all the clinician is called on to exercise their skill and judgment in the improvement of the physical and mental condition of the patient.
The scope of the duty of care has already been found to include:
- The care given to your patients
- Giving advice to your patient and to another about the patient
- Explaining risks inherent of the medication to your patient
- The standard of your prescription
- The standard of the record keeping
- The timing of a decision to act
- Seeking the assistance of others
- Failing to recognise the limits of your competences
- Failing to report substandard care.
Advising patients about the risks associated with treatment and about less risky available options for treatment form part of that duty of care (Sidaway v Bethlem Royal Hospital, 1985). The issue of how much information a patient should receive about the risks was considered by the House of Lords in Sidaway v Bethlem Royal Hospital (1985). In this case, a woman underwent surgery for persistent pain, which carried less than a 1% risk of damage to the spine if performed properly. This damage occurred and the woman suffered severe injuries. She claimed she had not been warned of the risk and would not have consented to the surgery had she been told. Their Lordships held that the surgeon had acted in accordance with an accepted body of practice at the time and therefore no negligence had occured. It was therefore established that the prescriber's duty of care to a patient included giving advice and information about the inherent risk of the proposed treatment (Sidaway v Bethlem Royal Hospital, 1985). Failure to warn of material risks that then caused harm would result in an action for negligence (Chatterton v Gerson, 1981). It was demonstrated that material risk is defined by a responsible body of medical opinion (Bolitho v City and Hackney HA, 2015). For the last 30 years, the amount of information about the inherent risks in the proposed treatment to be disclosed to a patient when obtaining consent was generally left to the professional to decide based on the Bolam test (Bolam v Fiern HMC, 1957). This test holds that the prescriber is required to disclose any information that a respected body of their professional peers would disclose to the same patient in the same circumstance. This has now changed, and patients have the right to sufficient information about the treatment and any alternatives to enable them to make an informed choice (Montgomny v Lanarkshire health board, 2015). Patients need to have been made aware of any material risk and reasonable alternatives or variant treatment (Box 1). In Darnley v Croydon health service NHS Trust (2018), the Supreme Court found the Trust owed a patient the duty of care and you could not distinguish between medical and non-medical staff in respect of the duty of care. The distinction only mattered in deciding whether there was a negligent breach of duty; there, the degree of skill, which can reasonably be expected of a person is dependent on the responsibility with which they are is charged (Box 2).
In Montgomery v Lancaster Health Board (2015) it was established that the seriousness of the condition and the anticipated benefits and risks of the proposed treatment should be discussed, in comprehensive language so that the patient can make an informed choice. In Duce v Worcestershire Acute NHS Trust (2018), Legett LJ stated that there is no breach in failing to communicate an unknown risk. The duty is to enable the claimant to decide whether or not that risk is acceptable to them.
For that reason it is important that the NMP:
- Is aware of the risk of the proposed treatment
- Ensures that the patient knows the material risk of the treatment proposed - What sorts of risks would a reasonable person in the patient's shoes want to know about? - What sorts of risks would this particular patient what to know about?
- Asks if the patient know about reasonable alternatives for treatment – What are the alternatives, including options of conservative management/doing nothing?
- Ensures reasonable care has been given so that the patient understands all the information
- Asks if any of the exceptions to the duty to disclose apply in this instance
In Diamond v Royal Devon and Exeter NHS Foundation trust (2019) it was established that there is no free standing right to compensation if, on balance, the claimant would have accepted treatment even if warned of the risks. The facts were that the claimant had had an abdominal hernia repaired using surgical mesh, which was then liable to affect future pregnancies. She was not advised of the possible alternative of a suture repair, however the judges ruled that on balance of probability, she would have accepted the mesh anyway and therefore the case was dismissed.
In NHS Pearce v United Bristol NHS FT (1998) the courts recognised that most patients will accept a medical professional's advice about treatment and that all claimants in consent cases claim in hindsight they would not have had treatment. There are some circumstances where the courts believe that imposing a duty is not just and reasonable, so no duty of care arises.
In JD v East Bershire Community Health NHS Trust (2005), parents who had unfounded allegations of child abuse made against them sued the trust for damages due to psychiatric harm. The court held that it was not just and reasonable to impose a duty in these circumstances as the professional's paramount concern was the child, and if the professional had suspicions they must be able to report it without concern over being sued by the parents.
Box 1. Montgomery v Lanarkshire Health Board, 2015The Supreme Court held: “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable or variant treatment.”From: Montohomery V Lanarkshire Health Board (2015)
Box 2. Darnley v Croydon, 2018In Darnley v Croydon health service NHS Trust (2018) a man suffering from a head injury booked in at the A&E reception. The receptionist told him that the waiting time was 4-5 hours when in fact a triage nurse would see a head injury within 30 minutes. He left after waiting 19 minutes. He later collapsed out of the hospital and suffered serious brain damage which would have been avoided if he was in hospital at the time. The lower court held the receptionist could not be held responsible however the Supreme Court held the Hospital Trust accountable and found negligence.From: NHS Trust (2015)
Standard of care
Practitioners' owe a duty to their patients to take reasonable care not to cause harm. Generally the standard of care is based on the ‘reasonable man’ test. This was established in Blyth v Birmingham Waterwork Co (1856), where it was held that negligence is the omission to do something which a reasonable man would do when guided upon those considerations of a reasonable man. It can also be doing something which a prudent and reasonable man would not do (Wilsher v Essex Area Health Authority, 1986). Both what you do and what you fail to do can be equally culpable when establishing negligence. In Hall v Brooklands Auto Racing Club (1933), the characteristics of a reasonable man were described by the court:
‘A reasonable man is sometimes described as the man in the street or the man on the Clapham omnibus or…' (Lord Justice Greer at 244).
Where the person considered to be at fault for a negligent act or omission is a professional or skilled person, the law modifies the reasonable test to take account of the skill involved. The Bolam test is currently the standard by which the courts in England and Wales assess doctors' clinical practice (Bolam v Friern Hospital Management Committee, 1957). The principles of the Bolam test can be applied to examine the actions of any professional person. Similar standards operate in Scotland and Northern Ireland.
‘The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent…it is sufficient if he exercises the skill of an ordinary competent man exercising that particular art.’
The key words here are professing and exercising. Professing is what you say you are – nurse, pharmacist, paramedic or physiotherapist – and what level you are in your profession. Exercising is what you do, i.e. what task were you actually doing? The courts would compare your actions to the standard set by your hospital, professional body and your peers.
Doing your job properly is a defence against accusations of negligence. However, if you are performing an expanded role, then the standard is different. The leading case in this area is Wilsher v Essex Area Health Authority (1987).
In this case, the plaintiff, Martin Wilsher, was born about 3 months prematurely. He was in a special care baby unit and he was very ill. An inexperienced junior doctor inserted an arterial line into a vein, rather than into an artery. He asked a senior doctor to check the line, but the registrar failed to notice the mistake; furthermore, when the registrar replaced the line himself, hours later, he made the same mistake. The error resulted in a low blood oxygen measurement being recorded, and the infant was given excess oxygen. This caused retrolental fibroplasia, which left Martin Wilsher blind.
A key issue discussed by the Court of Appeal was the standard of legal care to be exercised by the junior doctor in the case. Lord Mustill stated: ‘In a case such as the present, the standard is not just that of the averagely competent and well informed junior houseman. If it did, inexperience would frequently be urged as a defence to an action for professional negligence.'
The case was settled for £116 724.40, and the registrar, but not the house officer, was found to be negligent because the junior had done the reasonable thing and asked his superior for supervision.
The key point to be taken from the Wilsher case is that a practitioner is liable to be judged by the professional standard of the post that they are holding at the time. This means that, if the practitioner is performing an expanded role that was previously carried out by a doctor, the practitioner would be judged by the standard of a reasonably competent doctor performing that role or in that post. If a practitioner undertakes a task for which they have insufficient training, this in itself may constitute negligence.
Reaching the standard of practice required
Many new posts have been created, such as transplant clinician's assistants and cardiac surgeons' assistants, and many different healthcare professionals can occupy these posts. How would you judge their standard of care?
The courts would have difficulty in assessing the appropriate standard of care for a professional if only one or two posts exist in the country. The court could look at the nature of the tasks performed and determine who normally performs those tasks. If doctors normally undertake these tasks, then a medical standard of care and skill will be expected. Some useful criteria that a court might take into account when determining the standard of care in an expanded role case could include: The nature of the task or the way the practitioner ‘holds herself/himself out' to patients (Wilsher v Essex Area Health Authority, 1986). If the NMP takes on a task that was previously undertaken by a medical practitioner, then their competence to perform that role needs to be at the level of the medical practitioner. The Courts may be looking for the NMP not to exercise the position of the doctor, but of a person who fills a post in a unit offering a highly specialised service.
Lord Justice Glidewell held that the law requires a practioner to be held to the ‘same standard as his more experienced colleagues. If he did not, inexperience would frequently be argued as a defence to an action for professional negligence' (Wilsher v Essex Area Health Authority, 1986).
Inexperience is not a defence to negligence. It is very important that prescribers closely adhere to the principles of their professional code of conduct and, in particular, take steps to remedy any deficits in their knowledge. If you are, for example, a physiotherapist performing a task done solely by physiotherapists, and the patient sees you as a physiotherapist and not as another practitioner, you would be judged under the Bolam test. Hence it is important that the patient knows your profession. Alternatively, if the patient had good reason to believe you were a doctor (you were not wearing a uniform or the patient saw you in a GP's surgery), you might be judged under the standard of care seen in the Wilsher case (i.e. as a doctor).
Role expansion
Role expansion is particularly important to prescribers because many are undertaking duties and procedures that were previously done by doctors. For example, prescribers are now signing prescriptions as indepedent or supplementary prescribers. Consider the tasks and duties that you undertake. Which of these were previously done by a doctor?
The GMC defines delegation in their Good Medical Practice (GMC, 2013) guide ‘when you delegate care you are still responsible for the overall management of the patient.'
It can, therefore, be argued that the delegating doctor may be negligent if they fail to follow the guidelines listed above.
The boundaries between tasks that are undertaken as part of an expanded role and those that follow from delegation are unclear. The law has no mechanism to find a team negligent; rather, it would find particular individuals negligent and usually this is the person in charge.
Causation
When the duty of care and failure to meet the standard of care required have been proven, the claimant must now show that the negligent act or omission caused harm. The way causation has been decided has varied over the years.
The first question the court would need an answer for would be ‘but for the defendant's negligent act or omission, would the plaintiff have been injured?’ This is the ‘but for’ test.
In Barnett v Chelsea and Kensington Hospital Management Committee (1967), three night watchmen with arsenic poisoning went to casualty but the doctor failed to examine them (Barnett v Chelsea and Kensington Hospital Management Committee, 1967). Their widows tried to sue the doctor for negligence for not examining them. However, when the court applied the ‘but for’ test to the defendant doctor, and asked, ‘but for him failing to come and examine the patient, would the patient have died?’ the answer was ‘yes, he still would have died’ because there was not an antidote for arsenic poisoning. Therefore, the negligence action fell at this stage; even if the doctor had examined them, they still would have died. No compensation was payable. Under civil law, the court will need to be satisfied that, upon the balance of probabilities, the negligent act or omission was the cause of the harm. This is particularly difficult in complex medical cases.
In the case of Kay v Ayrshire and Arran Health Board (1987), Andrew Stuart Kay, aged 2 years and 5 months, was diagnosed as having meningitis. The consultant paediatrician instructed 10 000 units of penicillin to be given; however, the senior house officer gave 300 000 units. Andrew started to convulse and later developed a degree of paralysis. He later appeared to recover and was discharged home; however, he was found to be deaf. His parents brought an action but it failed because the deafness could have been caused by the meningitis (Kay v Ayrshire and Arran Health Board [1987]).
Foreseeability
Only those harms that are foreseeable can be recovered. In Roe v. Ministry of Health and Others, Woolley v Same (1954), two patients had operations. Before both operations, a spinal anaesthetic consisting of Nupercaine® was administered to the patients by lumbar puncture. The plaintiffs were permanently paralysed from the waist down. The injuries were caused by the Nupercaine® being contaminated by phenol; the ampoules had been immersed in phenol, which had percolated through the glass. Because it was an unforeseeable occurrence, the defendant was not legally expected to anticipate the danger (Roe v Ministry of Health and Others, Woolley v Same [1954]). Lord Denning stated that ‘every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience, and experience often teaches in a hard way. Something goes wrong and shows up a weakness, and then it is put right. That is just what happened here…. We must not look at the 1947 accident with 1954 spectacles’.
Conclusion
To bring a successful claim in negligence it is necessary to prove the following:
- The patient (plaintiff) was owed a duty of care by the prescriber (defendant)
- The defendant breached that duty of care by failing to reach the standard required of them by law
- That the breach caused harm and that harm was foreseeable
The defence for a prescriber against negligence is that the prescriber is aware of the standard of care expected for the position they hold, and that they have the necessary competencies to maintain that standard of care. To ensure defence, a registered prescriber needs to keep up to date in the knowledge and skills required for the position and work within their scope of practice. They must also ensure that any deficiencies in their knowledge or skills are corrected before they start prescribing in a particular area.
Key Points
- Many NMP are now undertaking duties and procedures that were previously done by doctors.
- If a NMP takes on a task that was previously undertaken by a medical practitioner, then their competence to perform that role needs to be at the level of a medical practitioner.
- A NMP needs to keep their knowledge and skill up to date and to work within their scope of practice.
CPD reflective questions
- Who carried out my role before me?
- Will I be judged against my same professional peers or against another professional such as a doctor?
- Can I demonstrate the same competencies as the professional who previously carried out this role?
- What are the standards of care I will be judged against in a court of law?