Private vs Public Law and a Doctor's Duty of Care

Section 1. The Hierarchy of Courts (From highest to lowest court)

Criminal cases

European Court of Justice

House of Lords

Court of Appeal (Criminal Division)

Crown Court

Magistrates’ Court

Civil cases

European Court of Justice

House of Lords

Court of Appeal (Civil Division)

The Divisional Courts [Two or three judges hear each case]

High Court (which has three divisions: Queen’s Bench; Chancery; Family)

County Court

Each High Court division has two courts: an Ordinary Court and an Appellate Court. In the ordinary courts only one judge hears a case whereas the appellate courts – which hear appeal cases – two or three judges hear the appeal. The ordinary courts are generally known as the High Court, whereas the appellate courts are generally known as the Divisional Courts. Most appeals, in civil cases, from the County Court or the High Court are heard by the Court of Appeal; and appeals from the Court of Appeal by the House of Lords. In the Court of Appeal, cases are normally heard by three (occasionally five) judges. In the House of Lords, cases are normally heard by five (occasionally seven) Law Lords. In the first instance civil cases are heard either in the County Court or the High Court and will only reach the other courts on appeal.

Section 2. Public law and Private law

Types of Public law

1. Criminal law: This determines the kinds of behaviour, which are forbidden (by the State) at risk of punishment. It is normally the State that prosecutes the person who is thought to have committed the crime and not the victim(s) of the crime. The victim(s) can bring a private prosecution but the State can intervene and take over.

2. Constitutional law: This controls the method of government. If there is a dispute that arises, for example, over who can vote, or who can become a Member of Parliament, then it is constitutional law that is involved.

3. Administrative law: This controls how public bodies such as local councils, Government departments or Ministers should operate.

Some types of Private law (civil law)

1. Law of Contract: An agreement between two or more persons that is intended to be legally binding.

2. Law of Tort: The word tort comes from the French meaning a wrong. A tort is a civil (not criminal) wrong other than a breach of contract or trust. In the case of contracts and trusts the parties agree the terms; it is a breach of those terms by one of the parties that constitutes the wrong, which may be addressed. A tort is a duty fixed by law that affects all persons – it does not arise from a prior agreement. Torts cover negligence, nuisance, trespass, and defamation. The most important for these in medical practice are negligence and battery (a part of the tort of trespass).

3. Law of Property: This covers legal rights to property of all types.

4. Family Law: This covers the law relating to marriage, divorce, and the responsibilities of parents to children.

5. Welfare Law: This is concerned with the rights of individuals to obtain State benefits, and the rights and duties that arise with regard to housing and employment. Administrative law deals with disputes arising from the provision of State benefits.

Distinctions between criminal cases and civil cases

(Based on figure 1.2 of The English Legal System, by Jacqueline Martin; Hodder & Stoughton, London. 1997)

Criminal cases

Purpose: To maintain law and order and protect society

Person originating the case: The State (through the police and Crown Prosecution Service)

Legal name of person bringing the case: Prosecutor

Legal name of person against whom the case is brought: Defendant

Courts involved: See figure 3

Standard of proof: Beyond reasonable doubt

Person(s) making the decision: Magistrates or jury

Decision: Guilty or not guilty

Sanction if guilty: Punishment

Powers of court: Prison, fine, probation, discharge, community service order etc.

Civil cases

Purpose: To uphold the rights of individuals

Person originating the case: The individual whose rights have been affected

Legal name of person bringing the case: Plaintiff

Legal name of person against whom the case is brought: Defendant

Courts involved: See figure 3

Standard of proof: Balance of probabilities

Person(s) making the decision: Judge or panel of judges (very occasionally a jury)

Decision: Liable or not liable

Sanction if liable: Usually compensation

Powers of court: Usually an award of damages, but also: injunction etc.

Section 3. Negligence

The single most common reason for doctors to be taken to court is because they are being sued for negligence. In order for a doctor to be found liable in negligence the plaintiff (figure 2) would need to prove three things:

1. That the doctor owed a duty of care to the relevant patient.

2. That the doctor was in breach of the appropriate standard of care imposed by the law.

3. That the breach in the duty of care caused the patient harm meriting compensation.

Duty of care

(see also Section 5)

A duty of care is an obligation on one party to take care to prevent harm being suffered by another. Generally doctors owe a duty of care to their patients. A Hospital Trust would normally owe a duty of care to a patient of a doctor employed by the Trust.

Outside a hospital or a doctor’s surgery, for example at the scene of an accident, a doctor would not normally owe a duty of care if he did not attempt to help. In other words doctors are not legally obliged to act as “good Samaritans”. However, once a doctor stops and either says that he is a doctor, or starts to act as though he is a doctor, he has taken on a duty of care to that patient. This means that he is now potentially liable in negligence.

A general practitioner who is within his geographical practice area does normally owe a duty of care to a person in need of medical help (for example if the GP is at the scene of an accident). This is a result of the GPs’ contract with the health authority.

Standard of care – the “Bolam” test and its aftermath

In most cases of negligence the key issue is whether the doctor was in breach of the standard of care. The test in English law is whether the doctor fell below “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.” Bolam v Friern Hospital Management Committee, [1957].

Where the profession is divided as to what is the appropriate management (as was the case in Bolam) the doctor will not be found negligent simply because the procedure adopted was not universally approved. In the Bolam case the judge said: “a doctor is not guilty (sic) of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art” This is known as the Bolam test. Thus a doctor will not be found negligent if the court is satisfied that there is a responsible body of medical opinion that would consider that the doctor had acted properly. That responsible body need not be the majority of the profession.

One important issue that has arisen for the courts is whether the Bolam test is relevant to the provision of information (see Consent seminar).

The breach of the duty of care caused the patient harm

In order to prove negligence the patient must prove that, on the balance of probabilities, the harm resulted from the breach in the duty of care.

Section 4. Understanding Legal References and Reports

The most authoritative reports are those produced by the Incorporated Council of Law Reporting, and published as a general series known as the Law Reports. There are four series of reports depending on the type of case and the court: Appeal Cases (AC); Chancery Division (Ch); Queens Bench (QB); and, Family Division (Fam). Prior to 1972 the Family Division was known as Probate, Divorce and Admiralty Division and abbreviated to ‘P’. These Law Reports are referenced by: name of case, year, the law report series abbreviation, and the starting page. For example the reference to the House of Lords hearing of the “Gillick” case (see p000) is: Gillick v West Norfolk and Wisbech AHA [1986] AC 112 The two parties concerned in the action were Mrs Gillick and the West Norfolk and Wisbech Area Health Authority, and this provides the name of the case. The ‘v’ stands for the Latin ‘versus’ – against. Sometimes a case arises, not because one party is suing the other, but because one party wants a court ruling on some issue, or an injunction to prevent something from happening. In such instances the name of the case will not be one party ‘v’ the other party. Typically the person who is the subject of the case is referred to by an upper case single letter of the alphabet, and the name of the case will include a brief description. For example the case name might be: Re B (A minor) (Wardship: Medical Treatment).

The Incorporated Council of Law Reporting also produces Weekly Law Reports (WLR), produced weekly. These are available more quickly than the Law Reports themselves and are generally more readily available. In most years there are several volumes (typically four). Unlike with most medical journals, the volume number starts at one at the start of each year. A case is referenced by: name of case, year, volume, WLR, and starting page. The reference for the House of Lords hearing of the Gillick case in the Weekly Law Reports has the same title as for the Law Reports and the reference: [1985] 2 WLR 413. The earlier year, 1985 as opposed to 1986, reflects the earlier reporting in the Weekly Law Reports.

In addition to these “official” reports there are also commercially produced reports. The most important of these is the All England Law Reports (All ER) available weekly. These are widely respected and widely available. The reference system is similar to the Weekly Law Reports, and the reference to Gillick is: [1985] 3 All ER 402.

Some cases that are first heard in the High Court are then taken to Appeal first to the Court of Appeal and then sometimes to the House of Lords. Each court hearing of the case is the subject of a different law report and will have different references

Statutes

Statutes are Acts of Parliaments. The most authoritative publication of statutes are the Public General Acts and duplicated in the Law Reports Statutes, which are published by the Incorporated Council of Law Reporting. These are both arranged chronologically. The HM Stationary Office publishes statutes by subject as Statutes in Force and a similar arrangement is used in Halsbury’s Statutes of England.

Section 5. When does a doctor owe a duty of care?

(this section was written by Charles Foster, Barrister)

The general principle

A doctor owes a duty to his patients. The law does not require any doctor to enter into a doctor-patient relationship with anybody. The classic example is the provision of “good Samaritan care”. No doctor is compelled to attend an accident victim. He can walk by and let the patient suffer and die. His conscience will be his only judge. There is only a moral (and not a legal) obligation to rush forward to the cry: “Is there a doctor in the house?”

GPs, however, are under a duty to provide medical services to people in their geographical area. That is a duty originating in the GP’ s contract with the health authority or Primary Care Trust, and does not represent a true exception to the general rule.

When is a patient a patient?

The general answer which follows from discussion above is that a patient is a patient when the doctor decides that he is. But it is not quite as simple as that.

Although the courts have repeatedly and increasingly indicated that the law of negligence is a fluid organism, expanding to accommodate changes in society [1] , they have also been very conservative in imposing new duties on professionals. The general criteria for the imposition of a duty are set out in Caparo Industries plc v Dickman [2] , which laid down the famous three-fold test: There will be a duty if the injury is foreseeable, the relationship between the claimant and the defendant is sufficiently proximate, and if it is just and reasonable to impose such a duty.

Although judges are obliged to consider these three elements separately, in practice decisions about the proximity of relationship are coloured by considerations of justice and reasonableness, which is fair enough.

If any general principle can be discerned in the cases about medical duties, it is that a duty will not be imposed unless the doctor has explicitly agreed to assume it. Contractual and tortious duties are, in this arena, usually found to be co-extensive.

Two examples illustrate this:

-D1 was a building society. D2 was a GP engaged by D1 as a medical adviser. C applied for a job with D1. She filled in a medical questionnaire. D2 looked at the questionnaire, and concluded that C had sickle cell anaemia and was likely to have a lot of time off work. He told this to D1. D1 did not employ C. C said that D2 had negligently assessed the risk from sickle cell anaemia. D2 said that he did not owe C any duty, and accordingly it was irrelevant whether or not he was negligent. The Court of Appeal agreed with this. D2 owed a duty only to D1 [3] .

-D performed a vasectomy on A and told him that it had been successful and that he need take no future contraceptive precautions. Subsequently A met C, and told her that he was sterile. They started a sexual relationship and used no contraception. C became pregnant. She sued D. Her case was struck out: D owed C no duty [4] .

This is not to say that a duty cannot be owed to third parties of whose existence a doctor does not know. Consider the situation where X, a psychiatric patient, says that if he is released he would kill the first person he met outside the hospital. X’s doctor, Y, knowing of the threat, nonetheless releases X. X keeps his promise and kills a stranger, Z, on the hospital steps. It may well be held that Y owed Z a duty. But the English courts are unlikely to go much further than this at the moment. They would be unlikely to impose a duty on Y in relation to all future potential victims of X, just as they would not impose a duty on D, in the example immediately above, to all future sexual partners of A. The existence of a duty in cases like these is likely to depend on an ascertainable (and probably numerically small) class of potential victims [5] .

Liability for psychiatric injury

This is a rapidly evolving area of the law of tort, but it is still dominated by the cases which followed the Hillsborough Disaster [6] .A lot of the confusion has arising from frank judicial scepticism about psychiatric injury. The courts have tended to think that unless bones are broken or blood spilt, there is no real injury, and that the right approach to psychiatric devastation is tea and a stiff upper lip rather than compensation. But they are gradually realising that the boundary between the physical and the psychiatric is permeable or non-existent: the law is changing accordingly. Another policy consideration, however, will not go away: the courts are scared of opening the floodgates. However sympathetic one is to psychiatric injury, it has to be conceded that it is a lot less verifiable than physical injury, and a lot more common. There is a residual belief that the stiff upper lip should be actively encouraged, and that people should not be paid out for perceived moral weakness.

The Hillsborough cases distinguished between primary and secondary victims of a tort. Primary victims are easily identified. A primary victim is someone who could, foreseeably, have suffered physical injury. Generally, in medical cases, that will be a patient. Such a victim can recover damages for psychiatric injury even when there is no peg of physical injury on which to hang the claim. A secondary victim is one who was not actually present at the time that physical injury was possible, but who suffers psychiatric injury as a result of injury to another. A duty is only owed to such a claimant if the claimant is in a sufficiently close relationship of love and affection to the injured person, is present at the event or its immediate aftermath and sees or hears the event or its aftermath.

Issues of liability to potential secondary victims commonly arise in medical law, and the courts are increasingly sympathetic to claimants. A typical example would be a father watching the delivery of his dead child – dead as a result of clinical negligence [7] Judicial sympathy is particularly evident in the increasingly elastic construction of the notion of ‘immediate aftermath’..

The statutory basis of NHS liability

NHS Trusts have a statutory duty to provide medical, surgical and nursing care. The duty is contained in lots of bits of subordinate legislation, but the parent of all that legislation is the National Health Service Act 1977. Section 1 says that the Secretary of State for Health has a:

“duty to continue the promotion……of a comprehensive health service designed to secure improvement (a) in the physical and mental health of the people of those countries, and (b) in the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with this Act.”

Section 3(1) is more explicit about what performance of this duty involves:

“It is the Secretary of State’s duty to provide…..to such extent as he considers necessary to meet all reasonable requirement:

(a) hospital accommodation;

(b) other accommodation for the purpose of any service provided under this Act;

(c) medical, dental, nursing and ambulance services;

(d) such other facilities for the care of expectant mothers and nursing mothers and young children as he considers are appropriate as part of the health service;

(e) such facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service;

(f) such other services as are required for the diagnosis and treatment of illness.”

This is all laudable but vague stuff. None of it has the distinctive smell of an actionable statutory duty. There have been some wildly optimistic efforts to persuade the courts otherwise – to persuade them to say that the Secretary of State is liable for damages for a failure to perform these duties, but they have all failed [8] . The efforts amounted to invitations to the court to act as arbiters of the reasonableness of the Secretary of State’s decisions. The invitations were declined, the courts saying that it could not interfere unless the decision was so unreasonable as to be frankly irrational [9] . The courts pointed out that the responsible deployment of funds involved weighing competing claims from endless would-be beneficiaries. A government department was far better placed to do that than a court. Similar problems face applicants in judicial review proceedings who say that an NHS Trust should have spent money on what the applicant wanted.

So as a starting point for a claim in negligence, the duties under the National Health Service Act are important, but a claimant needs to go further. It is usual for Particulars of Claim in a clinical negligence claim against a Trust to start by stating that the Trust owes a duty, pursuant to the 1977 Act and subsequent and subordinate legislation, to provide medical, surgical, nursing and ancillary staff. The subsequent allegations of negligence are generally framed as allegations of vicarious liability. They assert that the employees of the Trust did not do properly the job entrusted to them, and that the Trust has to pick up the bill for their failure. It is worth noting, though, that there are often, in practice, disguised claims for inadequate resources which are probably best analysed as a breach of the (non actionable) duty under the 1977 Act or as a criticism of the decisions of Trust management about the allocation of funds. Such claims might appear as: ‘There was no CTG monitor available’ or ‘There was a delay of 5 hours before the Claimant was taken to the operating theatre.’ It is very rare to see defendants respond to such allegations with the riposte: ‘It is regrettable that there are not infinite resources in the NHS, but that regrettable fact does not ground an action in damages: we rationally decided to spend our money on dialysis machines rather than the thing that would have saved the claimant’ – a riposte which the authorities would allow them to make.

Contractual duties

For most practical purposes clinical negligence lawyers can forget about these. It is not that contractual duties do not exist – all private medicine and surgery is performed pursuant to such duties – but that they rarely add anything to the parallel duty owed in tort. The courts have been very reluctant to imply a duty in contract which goes beyond the duty imposed by the common law of negligence.

That said, there are sometimes arguments about contractual duties. The commonest example is plastic surgery. A claimant will classically say: “The surgeon promised me a perfect chin. It was a term of the contract that I got a perfect chin. Instead I got this. That is a breach of contract.” The usual response of judges, however, is to say that it was a term of the contract that the surgeon would use, in counselling about the possible outcome and in aiming for the desired result, the skill and care reasonably to be expected of a competent surgeon of the professed expertise of the relevant surgeon. This amounts to saying that the surgeon is contractually bound not to be tortiously negligent in his pre-operative advice or in the performance of the operation, which is not a very surprising term.