Negligence in UK Law – Part 1

Negligence, a cornerstone of tort law in civil law, holds significant implications for medical practitioners, and healthcare organisations, particularly in the UK’s complex healthcare landscape. The title of this article does not include the words “medical negligence” because in reality the foundation of negligence is not specific to ‘medical’, ‘dental’, ‘nursing’, ‘social work’, or other negligence. This review aims to provide a comprehensive overview of negligence as a legal concept, tailored specifically for medical doctors, with an emphasis on its relevance to psychiatrists. It will introduce concepts of legal negligence, distinguish it from mere carelessness, and briefly explore the Adamako bridge to Gross Negligence Manslaughter (GNM). Some of the sources of duty of care¹ are provided: including those arising from the General Medical Council (GMC) standards, common law, and regulatory standards will be referenced. GNM is criminal negligence which will be covered in depth in Part 2 or Part 3 follow-up articles. This article – Part 1 – being introductory will not be as in-depth as Parts 2 and 3. Contributory negligence is not covered.

NOTHING HERE IS MEDICAL OR LEGAL ADVICE!

A picture is worth a thousand words! See original data for screenshots below, and more at: Medical Negligence Assist. [Caution: Investigative Psychiatry is not affiliated to any organisation, does not invest in any, promotes none, nor obtains any advantages from any organisation or entity.]

Lord Woolf’s Lecture 2000

It’s safe to say that most people don’t even know or recall the late Lord Woolf. Well, he was ‘just’ the Lord Chief Justice of England and Wales from 2000 until 2005. Around 2000, many doctors of today would have been in their mother’s arms or being pushed in prams. With the passage of time few people would have been aware of the important words from Lord Woolf’s inaugural provost’s lecture at University College London in 2000.

Clare Dyer in BMJ Article (January 20, 2001) wrote about it. Paraphrasing and quoting from the article: Lord Woolf stated that the English courts were “excessively deferential” to doctors in the past and that judges were now less willing to allow the medical profession to determine what amounted to negligent practice. He emphasised that the courts had refined the Bolam test for medical negligence, stating that “medical opinion now had to withstand logical analysis“. Lord Woolf noted that the courts were increasingly conscious of the difficulties bona fide claimants faced in succeeding in medical negligence litigation, describing it as a “disaster area”. Lord Woolf highlighted that the move to a rights-based society had fundamentally changed the behaviour of the courts, and the “automatic presumption of beneficence” accorded to doctors had been dented by well-publicised scandals.

That was a sign of ‘climatic change’. Many were not quite clear why this change of heart. In various circles many were not entirely satisfied with Lord Browne-Wilkinson’s judgment in Bolitho 1997 (explored below). No one knows if Lord Woolf was concerned about the judgement.

Lord Browne-Wilkinson’s sequence in the judgement was:

1. He had set up a powerful principle about scrutinising the logical basis of expert opinions
2. Then he emphasised it should be used “rarely”
3. Then he accepted the defendant’s (Dr. Dinwiddie’s_ risk assessment at face value without deeply examining its logical foundations
4. And finally deferred to the expert judgment on balancing those risks

It was particularly striking the above because Lord Browne-Wilkinson noted that the trial judge, “as a layman,” found the argument for intubation logical. But instead of drilling down into why the expert’s contrary view was equally logical, he essentially accepted it because Dr. Dinwiddie was “most distinguished.” The whole thing amounted to a degree of double-speak i.e. while establishing a principle about courts checking expert logic, the judgment simultaneously demonstrated a reluctance to actually apply that scrutiny at a deep level. The case talked the talk about logical analysis but did not fully walk the walk.

Defining Negligence

Negligence in law is strictly a legal concept. It transcends mere carelessness or forgetfulness of basic human error. It represents a failure to exercise the standard of care that a reasonably prudent person would demonstrate in similar circumstances. This departure from the expected standard of care must result in harm or loss to another person. There are four main types of negligence as conceptual entities. However the base for all negligence in the law of tort is the same. The categorisations below do not create separate legal considerations:

• Ordinary Negligence ³: This is the most common type of negligence, where an individual fails to take precautions that a reasonable person would take, and their actions (or inaction) cause harm to another person. For example, a driver causing an accident by driving through a red light.
• Gross Negligence: This is a more extreme form of negligence where an individual consciously disregards the need to use reasonable care . It carries a higher penalty, as the court can award punitive damages to punish the offender. An example would be an individual waving lit fireworks in pedestrians’ faces on a busy public path. [Caution: Gross Negligence does not mean Gross Negligence Manslaughter].
• Professional Negligence: This occurs when a professional, working in a regulated industry, acts without reasonable care or skill. For example, an accountant giving incorrect advice that leads to significant tax consequences for a client.

Element	Description
Duty of Care	A legal obligation to avoid causing foreseeable harm to another person. This duty can arise from various relationships, including that between a doctor and their patient.
Breach of Duty	Occurs when the defendant’s conduct falls below the standard of care expected of a reasonable person in a similar situation. In a professional context, the standard is that of a reasonably prudent person with similar professional experience.
Causation	The breach of duty must be the direct cause of the harm suffered by the claimant. This is often determined using the ‘but for’ test: would the harm have occurred ‘but for’ the defendant’s actions?
Damage	The claimant must have suffered actual damage or injury as a direct result of the defendant’s negligence. This can include physical injury, emotional distress, or financial loss.

It is crucial to note that the damage must be a foreseeable consequence of the breach of duty.

Foreseeability

The concept of foreseeability is central to negligence law, ensuring that individuals are only held liable for harm that they could reasonably have anticipated. Furthermore, the claimant has a duty to mitigate their losses, meaning they must take reasonable steps to minimise the harm suffered. The legal concept does not create different kinds of ‘foreseeability’ in different domains e.g. medical, dental, nursing, maritime, or aeronautical.

Foreseeability in law ⁴ is not about having the ability to predict the future with certainty. It is not about expecting people to be clairvoyant or anticipate every single possible outcome of their actions. Instead, it is a much more practical and reasonable concept. It is about considering what a sensible person, in the same situation, would reasonably anticipate as being a likely consequence of their actions, or in some cases, their inaction. Think of it less as predicting the future and more as thinking ahead and considering the potential risks involved in what you’re doing. It is about recognising the reasonably foreseeable dangers associated with a particular action or omission, and taking those into account.

The legal concept of foreseeability hinges on this idea of reasonableness. It is not about what actually happened, but what a reasonable person would have foreseen as being a probable outcome. This objective standard asks: what would a reasonably careful person, faced with the same circumstances, have anticipated as a potential risk? It is not about what the individual person actually foresaw, or even what they were capable of foreseeing. The law sets a standard based on what a hypothetical “reasonable person” would have considered. This hypothetical person is not perfect, but they are considered to be ordinarily careful and prudent.

The landmark case of Donoghue v Stevenson 1932 (see below), while not explicitly using the term “foreseeability,” laid the groundwork for its modern application. Lord Atkin’s “neighbour principle” established that a duty of care is owed to those who are “so closely and directly affected” by one’s actions that they ought reasonably to be in contemplation as being so affected. This implicitly incorporates the concept of foreseeability, as it requires consideration of who might be harmed by one’s conduct. Later cases further developed the concept. In The Wagon Mound (No. 1) [1961] AC 388, the Privy Council held that foreseeability is relevant not only to the existence of a duty of care but also to the remoteness of damage. The case involved a spillage of oil into Sydney Harbour, which subsequently caught fire and caused significant damage. The court determined that while some damage from the oil spill was foreseeable, the fire and its extensive consequences were not reasonably foreseeable, thus limiting the scope of liability.  

So, while some might mistakenly think foreseeability means predicting every possible outcome, it is far more grounded in common sense. It is about recognising the obvious and reasonably likely risks associated with our actions. The law does not expect us to be fortune tellers, but it does expect us to think before we act and consider the potential consequences for ourselves and others. This concept of foreseeability plays a key role in determining whether someone has acted negligently, as it helps establish whether they had a duty to take precautions and whether their actions fell below the standard of care expected of a reasonable person in that situation.

From Ginger Beer in 1932

In the landmark case of Donoghue v Stevenson [1932], the House of Lords established the modern concept of negligence and the ‘neighbour principle,’ which significantly shaped the understanding of duty of care.

The ‘Neighbour Principle’

Lord Atkin, in his leading judgment, formulated the ‘neighbour principle’ as follows:

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have³them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

This principle essentially states that a person owes a duty of care to those who are foreseeably harmed by their actions or omissions. It shifted the focus from contractual relationships to a broader responsibility for the consequences of one’s conduct.

Impact and Evolution

Donoghue v Stevenson revolutionised negligence law by:

• Expanding the scope of duty of care: It established that a duty of care could exist even in the absence of a contractual relationship, extending liability to manufacturers for harm caused to consumers by their products.
• Providing a framework for determining duty of care: The ‘neighbour principle’ offered a general test for determining whether a duty of care exists, based on foreseeability and proximity.

Continued Relevance

The ‘neighbour principle’ remains a cornerstone of negligence law today. While it has been refined and expanded upon in subsequent cases, its fundamental principles continue to guide courts in determining duty of care.

Developments

Over time, the ‘neighbour principle’ has evolved and been supplemented by additional tests and considerations. Key developments include:

• Three-stage test: In Caparo Industries plc v Dickman [1990], the House of Lords established a three-stage test for determining duty of care: foreseeability, proximity, and whether it is fair, just, and reasonable to impose a duty.
• Incremental approach: Courts have also adopted an incremental approach, developing the law of negligence cautiously and by analogy with existing categories of duty.

Due to the common tendency to ‘speed read’ everything on the internet, I expect may will have not processed the words ‘reasonable to impose a duty‘. This is nothing new. Many health workers work on the basis that “I’m being reasonable – I do not have a duty” [in some particular issue]. To get the point across an raw terms basically the courts have the power to tell anybody in more polite words, “We think you have/had a duty – that’s it!” – and then move on through the various tests of negligence. The point is that ‘over confidence’ is not a safe thing.

Defence, Mitigation, Bolam and Bolitho

The language surrounding negligence claims can be tricky, and it is easy for healthcare workers to conflate the concepts of ‘defence‘ and ‘mitigation‘ when facing allegations of substandard care. Understanding the crucial distinctions between these two is vital, not just for legal reasons, but also for personal and professional well-being. A robust defence aims to prevent liability altogether, whereas mitigation accepts that some degree of failing may have occurred but seeks to minimise the consequences. They are not interchangeable, and confusing them can have serious repercussions. Let me put this into blunt lay-persons language, “They aim to do you first and foremost – then after you have been done up, you beg to mitigate. That’s how it works.“

Defence

Imagine a surgeon facing a claim related to a post-operative complication. A defence might centre on demonstrating that the surgery was performed with reasonable skill and care, adhering to established protocols, and that the complication was a known risk of the procedure, explained to the patient beforehand. Perhaps the surgeon can provide compelling evidence of their meticulous technique, supported by contemporaneous notes and expert testimony. They might argue that the complication arose not from any lapse in their skill, but from factors outside their control, such as the patient’s underlying health or an unforeseen event during the operation. A successful defence effectively negates the claim of negligence.

Mitigation

Mitigation, on the other hand, takes a different approach. It acknowledges that there might have been a shortcoming in the care provided, even if unintentional or minor. Perhaps the surgeon admits that a particular step in the procedure could have been performed slightly differently, or that communication with the patient about the risks, whilst adequate, could have been more thorough. Mitigation does not dispute that there was a deviation from accepted practice, but focuses on minimising the impact of that deviation. This might involve demonstrating that immediate steps were taken to rectify the issue, that the patient received prompt and appropriate treatment to address the complication, and that all possible measures were employed to limit any long-term harm. Mitigation might also involve expressing sincere regret to the patient, acknowledging the distress caused, and demonstrating a commitment to learning from the experience.

The confusion arises because elements of mitigation can sometimes be presented alongside a defence. A surgeon might argue that they acted with reasonable care and that they immediately addressed the complication when it arose. However, this does not blur the fundamental difference: the defence aims to disprove negligence, while mitigation seeks to reduce the repercussions of a potential finding of negligence. Thinking about it in terms of stages helps: if the defence is successful, mitigation becomes irrelevant. It is only when the defence fails, or is likely to fail, that mitigation comes into play.

Getting this distinction right is imperative because it affects the entire approach to a claim. A doctor focusing on mitigation when a robust defence is possible might unnecessarily concede ground. Conversely, a doctor who ignores the potential for mitigation while pursuing a defence might miss an opportunity to lessen the impact of a negative outcome, both legally and reputationally. Clear communication with legal advisors is essential to determine the most appropriate strategy in any given situation, ensuring that all available avenues are explored and that the doctor’s position is presented in the most effective and ethical manner.

Bolam and Bolitho

The Bolam Test is a defence – not a carte blanche for doctors to do what they want to do. Many doctors have not read the text of Bolitho – the key sections of the judgment that deal with logic and reason, particularly focusing on how the court approached the evaluation of expert medical opinions.

The most significant discussion of logic and reason appears in two main parts of Lord Browne-Wilkinson’s judgment:

1. The Key Principle: Lord Browne-Wilkinson established that courts must be satisfied that expert opinions have a “logical basis.” This is evident when he states: “The use of these adjectives -responsible, reasonable and respectable–all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis.“
2. The Judge’s Role: The judgment articulates that while judges should rarely dismiss expert medical opinions as unreasonable, they retain the power to do so when the opinion “cannot be demonstrated to the judge’s satisfaction that the body of opinion is reasonable or responsible.“

Particularly interesting is this key passage: “But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.” In the specific context of this case, the tension between logic and expert opinion was highlighted in the trial judge’s comments. The judge acknowledged that as a layman, he found the argument for intubation “logical,” but crucially recognised that he couldn’t substitute his own views for those of medical experts. The House of Lords approved this approach, noting that Dr. Dinwiddie’s opinion couldn’t be dismissed as illogical because:

1. The symptoms didn’t necessarily indicate progressive respiratory collapse
2. There was only a small risk of total respiratory failure
3. Intubation itself carried significant risks and wasn’t a routine, risk-free procedure

This demonstrates how what might seem “logical” to a layperson must be balanced against the complex medical factors that experts consider in forming their opinions. The case establishes that while expert opinions must have a logical basis, the assessment of medical risks and benefits remains primarily a matter of clinical judgment that judges should rarely override.

While Bolam established that a doctor is not negligent if they acted in accordance with a practice accepted by a responsible body of medical professionals, Bolitho adds the important caveat that this body of opinion must be capable of withstanding logical scrutiny. It is a subtle but important distinction – under Bolitho, it is not enough for doctors to just say “Well, this is what we all do – so there those who are not medical have to listen to us!” They need to show their approach can be logically defended, particularly in terms of weighing risks and benefits. This helps prevent the perpetuation of illogical or outdated practices simply because they’re common among doctors.

Towards the Courts

In the UK, pursuing a negligence lawsuit against a doctor is a complex process. There are many stages towards the court room. All of the following may not happen in sequence and some may not happen at all. Some cases are settled before reaching ‘the steps of the Court’.

1. NHS Complaints Procedure:

Before taking legal action, claimants are encouraged to exhaust the NHS complaints procedure. This involves raising concerns with the healthcare provider directly and, if necessary, escalating the complaint to the Health Service Ombudsman. This process can help identify failings in care and may lead to an apology or changes in practice. However, it does not usually result in financial compensation.

2. Investigation and Legal Advice: Claimants should seek legal advice from a solicitor specialising in medical negligence. The solicitor will assess the case, gather evidence (including medical records and expert opinions), and advise on the prospects of success. It is essential to establish that the doctor’s care fell below the accepted standard of care and that this directly caused harm to the patient.

3. Pre-Action Protocol: The Pre-Action Protocol for the Resolution of Clinical Negligence Disputes sets out a series of steps that parties are expected to follow before starting court proceedings. This includes:

• Letter of Claim: The claimant’s solicitor sends a formal letter to the defendant (usually the NHS Trust or the doctor’s medical defence organisation) outlining the details of the claim.
• Investigation: The defendant has a set time to investigate the claim and respond.
• Expert Evidence: Both sides may instruct independent medical experts to provide reports on the alleged negligence.
• Mediation: The parties are encouraged to attempt mediation to try and resolve the dispute without going to court.

4. Mediation: Mediation involves a neutral third party facilitating discussions between the claimant and the defendant to reach a mutually acceptable settlement. It can be a less adversarial and more cost-effective way to resolve disputes than going to court.

5. Court Proceedings: If mediation fails or is not appropriate, the claimant can issue court proceedings. This involves filing a claim form with the court and serving it on the defendant. The court will then manage the case, which may involve further evidence gathering, witness statements, and expert testimony.

6. Settlement or Trial: Many cases settle out of court before reaching a trial. If the case proceeds to trial, a judge will hear the evidence and decide whether the doctor was negligent and, if so, how much compensation the claimant should receive.

Consequences for doctors

Facing a civil lawsuit for negligence, often termed medical malpractice, can have profound consequences for doctors in the UK, impacting them professionally, personally, and legally. While the focus here is on the professional and personal ramifications, it is important to briefly touch on the legal aspects.

Legal Consequences

It is important to emphasise that most doctors strive to provide the best possible care for their patients. Medical negligence claims, while serious, are relatively rare. However, the potential consequences for doctors involved in such claims can be significant and far-reaching, impacting not only their professional lives but also their personal wellbeing.

If a patient successfully sues a doctor for negligence, the doctor (or, more commonly, their medical defence organisation) will be liable to pay compensation to the patient. This compensation aims to address the harm caused by the doctor’s breach of duty. The amount awarded varies considerably depending on the severity of the injury, the impact on the patient’s life, and other factors. It is rare for criminal charges to arise from medical negligence cases unless the conduct is so egregious that it falls outside the realm of simple negligence and into that of recklessness or intentional harm. Some defence coverage schemes do no cover ‘criminal negligence’.

Professional Consequences

1. Referral to the General Medical Council (GMC): A successful negligence claim, or even the fact that a claim has been made, can be referred to the GMC. The GMC has the power to investigate and, if it finds the doctor’s fitness to practise is impaired, can impose a range of sanctions. These range from conditions on practice (e.g., supervision, further training) to suspension or, in the most serious cases, erasure from the medical register, effectively ending their career. Even if the GMC does not impose sanctions, the investigation itself can be a stressful and lengthy process.  
2. Impact on reputation: A negligence claim, even if unsuccessful, can damage a doctor’s professional reputation. Word can spread within the medical community, and patients may be less likely to trust a doctor who has been involved in a legal case. This can affect career progression, particularly in smaller or specialist fields where reputation is paramount.  
3. Increased insurance premiums: Doctors are required to have professional indemnity insurance (usually through a medical defence organisation). Following a successful claim, their premiums are likely to increase, reflecting the perceived higher risk.
4. Restrictions on practice: In some cases, a doctor might voluntarily agree to, or be required to accept, restrictions on their practice while investigations are ongoing or following the conclusion of a case. This could involve limiting the types of procedures they can perform or requiring supervision.

Personal Consequences

1. Stress and emotional distress: Facing a negligence claim is incredibly stressful. The process can be lengthy, complex, and emotionally draining. Doctors may experience anxiety, depression, and difficulty sleeping. The fear of losing their career and the impact on their reputation can be particularly distressing. It is not uncommon for doctors facing such claims to suffer mental disorders and poorer physical health, as a consequence. Some doctors turn to drugs or alcohol and there are cases where doctors have committed suicide.
2. Impact on family life: The stress and emotional burden of a legal case can also impact a doctor’s personal relationships and family life. The long hours and emotional strain can make it difficult to maintain a healthy work-life balance.
3. Financial strain: Even if insurance covers the compensation payment, legal fees can be substantial. Furthermore, the potential loss of income due to suspension or restrictions on practice can create significant financial strain.
4. Loss of confidence: A negligence claim, even if defended successfully, can shake a doctor’s confidence in their abilities. This can lead to them becoming more hesitant and less decisive in their clinical practice, overly defensive in practice – all potentially affecting patient care.

Gross Negligence Manslaughter: The Adamako Bridge

In cases where negligence leads to death, the legal concept of Gross Negligence Manslaughter comes into play. The pathway is often referred to as the “Adamako bridge,” referencing the landmark case of R v Adomako [1994] UKHL , which clarified the elements of GNM. This serious offence requires a higher threshold of negligence than ordinary civil negligence. The landmark case of R v Adomako [1994] established the test for Gross Negligence Manslaughter, which is whether the defendant’s conduct departed so far from the accepted standard of care that it constituted a criminal act . It is important to clarify that the Adamako test specifically applies to Gross Negligence Manslaughter, not all cases of severe negligence. This test has significant implications for medical practitioners, as it highlights the potential for criminal liability in cases of gross negligence leading to death. The punishment is 6 years in a cage. [GNM will be extensively explored in follow-up Part 2 or 3 of this series. It’s guaranteed to be a mind-bending read]

Adomako involved an anaesthetist who failed to notice a dislodged breathing tube during an operation, leading to the patient’s death. The House of Lords established that for GNM to be established, the negligence must be so gross as to justify criminal liability. Lord Mackay defined this threshold, stating that the conduct must be “so gross as to amount to a criminal offence.” This involves a “breach of a duty of care which the defendant owed to the deceased” and which “caused the death of the deceased.” Crucially, the jury must be sure that “the negligence was so gross as to justify criminal liability.”

This is where the “bridge” comes into play. Simple negligence, the kind that might lead to a civil claim, is not enough. The negligence must be gross, meaning it must fall far below the standard of care expected of a reasonably competent professional in the same position. It is not just a mistake or an error of judgment; it is a serious and obvious failure to fulfil a basic duty of care, with consequences that are readily foreseeable. Examples might include a doctor operating on the wrong patient, administering a lethal dose of medication due to a clear and avoidable error, or completely ignoring obvious signs of a deteriorating condition.

The “slippery slope” arises from the inherent difficulty in defining precisely where ordinary negligence ends and gross negligence begins. While Adomako provides a framework, the application of that framework is left to the jury. This means that the line between civil and criminal liability can, in practice, be somewhat blurred. The fear for healthcare professionals is that a momentary lapse, even one with tragic consequences, could be interpreted as gross negligence, leading to criminal charges and potentially imprisonment.

While GNM cases against doctors are rare in the UK, precisely because the threshold is high, the “slippery slope” remains a concern. The intense media scrutiny that often accompanies such cases, the emotional impact on the families involved, and the potential for reputational damage all contribute to a climate of anxiety. This can, in turn, lead to defensive practice, where doctors may be overly cautious, potentially to the detriment of patients.

It is important to emphasise that the law does not seek to criminalise honest mistakes. GNM is reserved for truly egregious cases of negligence, where the conduct is so appalling that it warrants criminal punishment. However, the subjective nature of “grossness” and the potential for even minor errors to have catastrophic outcomes mean that the shadow of GNM hangs over the medical profession. This highlights the need for robust systems of error prevention, open and transparent reporting of incidents, and a culture of learning from mistakes, all of which are essential to minimising the risk of both civil claims and, more importantly, patient harm.

Sources of Duty of Care for Medical Doctors

Medical doctors in the UK are bound by a multifaceted web of duty of care, stemming from various sources.

Source	Description
GMC Standards	Ethical and professional guidelines emphasising patient-centred care and good clinical practice. These standards mandate that doctors “must make the care of patients first concern” and “provide a good standard of practice and care.”
Common Law	Legal principles derived from judicial decisions, including the ‘neighbour principle’ established in Donoghue v Stevenson [1932]. This principle states that individuals must take reasonable care to avoid acts or omissions that could foreseeably harm others.
Regulatory Standards	Standards set by organisations like the Care Quality Commission (CQC) and the Health and Safety Executive (HSE) to ensure patient safety and well-being. These standards mandate the provision of safe and effective care, with the CQC specifically stating that patients “must not be given unsafe care or treatment or be put at risk of harm that could be avoided.”

Negligence in Medical Practice

Case Law Examples

The application of negligence law in medical practice is illustrated through numerous case law examples. Some notable cases include:

• Bolam v Friern Hospital Management Committee [1957]: This case established the ‘Bolam test’, which states that a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical professionals. This test has been influential in medical negligence cases, but it has also been subject to criticism and refinement over time. Speed-readers show scroll back up because the latter is not at all Golden.
• Montgomery v Lanarkshire Health Board [2015]: This landmark case shifted the focus of informed consent from what a reasonable doctor would disclose to what a reasonable patient would want to know. This has significant implications for how doctors communicate risks and obtain consent for treatment, placing greater emphasis on patient autonomy and shared decision-making.

Following the Montgomery ruling, there has been a notable increase in negligence claims related to informed consent. This highlights the importance of thorough communication, ensuring that patients are fully informed about the risks and benefits of treatment options before making decisions.

Examples of Negligence in Medical Practice

Examples of negligence in medical practice can range from misdiagnosis and surgical errors to medication errors and inadequate aftercare. In the context of psychiatry, negligence may manifest in failures to properly assess and manage risk ¹¹, leading to patient self-harm or harm to others. This can include:

• Failure to adequately assess a patient’s risk of suicide or self-harm.
• Failure to implement appropriate safety measures to prevent self-harm or suicide.
• Inappropriate discharge of a patient who poses a risk to themselves or others.
• Failure to properly monitor a patient’s mental state and adjust treatment accordingly.

It is important for psychiatrists to be aware of these potential pitfalls and to adhere to best practices in risk assessment and management to minimise the risk of negligence claims.

Implications for Psychiatrists

Psychiatrists face unique challenges in the context of negligence. The nature of mental illness often involves complex risk assessments and the potential for patients to harm themselves or others . Psychiatrists must adhere to a high standard of care in:

• Risk Assessment and Management: This includes thorough assessments of suicide risk, self-harm risk, and risk to others. This requires careful consideration of factors such as the patient’s history, current mental state, and social circumstances.
• Confidentiality: Maintaining patient confidentiality while balancing the need to protect others from harm. This can be a complex ethical and legal dilemma, requiring careful judgement and adherence to professional guidelines.
• Treatment Decisions and Consent: A study by Queen Mary University of London in 2020 ⁵, revealed that negligence claims against the NHS for failing to inform patients prior to obtaining their consent have sharply increased following the pivotal Supreme Court judgment in Montgomery 2015. The research found that while the rate of increase in other claims stayed steady, consent-related cases have risen fourfold since March 2015. Furthermore, when the failure to inform was included as an additional contributory claim, the increase was nearly tenfold. The study analysed data obtained through a Freedom of Information request on claims settled by the NHS between 2005 and 2019. It found that out of 70,000 cases, over 2,300 were related to failure to inform, with a total cost of nearly £400 million. Although these cases represent a small percentage of overall claims, they have significant financial implications. From 2011 to 2015, the cost of settling these cases rose from £25 million per year to £28 million per year, and from 2015 to 2019, costs increased to £62 million per year.
• Prescribing: Though related to ‘treatment’ UK psychiatrists will need to pay greater attention to the GMC’s prescribing standards – especially where the word ‘must’ appears in it.

Psychiatrists will be be aware of the limitations of secondary victim claims in clinical negligence following a recent Supreme Court judgment (Jan 2024). This ruling has narrowed the scope for claims by family members who suffer psychiatric harm as a result of witnessing negligent medical care. ⁶

Other areas of consideration

The NHS Redress Act

The NHS Redress Act 2006 was enacted to provide a framework for resolving concerns about NHS care and treatment, with the aim of improving patient safety and experience. The Act allows for investigations into incidents, provides for remedies such as apologies and explanations, and offers compensation in certain cases. While the Act does not replace the right to bring a clinical negligence claim, it offers an alternative route for resolving lower-value claims and promoting a more open and transparent approach to addressing patient safety concerns.

Systemic Negligence

It is important to recognise that negligence can also arise from systemic failures within healthcare organisations. Systemic negligence refers to deficiencies in the systems and processes that contribute to patient harm. This can include inadequate staffing levels, poor communication, or inadequate training. Addressing systemic issues is crucial for improving patient safety and reducing the risk of negligence claims.

No-Fault Compensation

The current system of negligence litigation has been subject to criticism for its adversarial nature, high costs, and potential to create a blame culture. As an alternative, some have proposed a no-fault compensation system, where patients receive compensation for medical injuries regardless of fault. This approach has potential benefits, such as faster resolution of claims and reduced legal costs. However, it also raises concerns about the potential for increased costs to the NHS and the lack of accountability for negligent healthcare providers ⁷

Conclusion

When I’m among persons who do not quite understand how the law works, they may say things like “Well that case was not in healthcare, so what’s the relevance to us?“. This sort of thinking misses a big issue that case law and often statute, is there to set down broad principles. The principles may apply across many sectors of work.

Negligence is a complex legal concept with far-reaching implications for medical doctors, especially psychiatrists. Understanding the elements of negligence, the threshold for Gross Negligence Manslaughter, and the various sources of duty of care is crucial for all medical practitioners. By adhering to professional standards, engaging in robust risk assessment, and prioritising patient-centred care, psychiatrists can mitigate the risk of negligence claims and provide safe and effective care.

Many UK medical doctors still take Bolam to be their ‘saviour’. In essence they believe ‘If I am doing what I know is representative of the standards of practice – then I’m fine.’ They are living a myth, don’t know it and cannot be ‘convinced’ out of it due to the power of the ‘herd instinct’.

The legal framework of negligence significantly shapes the practice of psychiatry in the UK. Psychiatrists face unique ethical and legal challenges in balancing patient care with risk management, particularly in relation to confidentiality and the potential for patients to harm themselves or others. Ongoing professional development and adherence to best practices are essential for mitigating negligence risks and ensuring the provision of high-quality care. It is also important for psychiatrists to stay informed about legal developments, such as the Montgomery ruling on informed consent and the limitations on secondary victim claims, as these can have a significant impact on their practice.

Furthermore, the potential shift towards a no-fault compensation system could fundamentally alter the landscape of medical negligence in the UK. While such a system may offer advantages in terms of efficiency and patient experience, it also raises important questions about cost and accountability that require careful consideration.

References & Supplemental Reading

1. Understanding Duty of Care: Your Essential Guide to Responsibility and Safety – Vatix, https://www.vatix.com/blog/duty-of-care
2. Negligence: A Comprehensive Guide – EM Law | Commercial Lawyers in Central London, https://emlaw.co.uk/negligence-a-comprehensive-guide/
3. What Is Negligence? Everything You Need To Know. – Britton & Time Solicitors, https://brittontime.com/2021/05/10/what-is-negligence-everything-you-need-to-know/
4. Foreseeability and causation in clinical negligence cases | British Dental Journal
5. Sharp rise in NHS negligence claims for lack of informed consent – Queen Mary University of London
6. Case of note: Paul v. Royal Wolverhampton NHS Trust; Polmear v. Royal Cornwall Hospitals NHS Trust; Purchase v. Dr. Ahmed (Supreme Court – 11 January 2024) – NHS Resolution
7. Medical Negligence Case Studies – Shoosmiths Serious Injury, https://seriousinjury.shoosmiths.com/medical-negligence/medical-negligence-case-studies.