KB-2023-001134 - [2025] EWHC 2121 (KB)

Relevant law

The legal test for establishing negligence by a doctor in diagnosis or treatment is whether the doctor has acted in accordance with a practice accepted as proper by a responsible body of medical opinion (per Lord Hamblen and Lord Burrows JJSC in McCulloch v Forth Valley Health Board [2023] UKSC 26 at [1]).

That test, often referred to as the “Bolam” test or, more recently as the “professional practice test”, is derived from the direction given to a jury by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 at 587. A clinician:

“…. is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in this particular art… Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice merely because there is a body of opinion that would take a contrary view…”

A claimant will therefore not succeed in establishing negligence merely by demonstrating that there is a body of competent professional expert opinion which disagrees with the judgment taken by the relevant clinician, provided that there is a body of competent professional expert opinion which supports that judgment as reasonable in the circumstances. The test recognises that a range of different views may legitimately be held about the same issue by different professionals.

Lord Scarman summarised the position as follows in Maynard v West Midlands RHA [1984] 1 WLR 634 at 638E:

“Differences of opinion and practice exist and will always exist in the medical and other professions. There is seldom only one answer exclusive of all others to problems of professional judgement. A Court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence.”

In Bolitho v City and Hackney HA [1997] UKHL 46; [1988] AC 232 the House of Lords recognised an important qualification to the Bolam test, namely that a court may, in a rare case, reject the professional opinion if it is incapable of withstanding logical analysis (again, see also McCulloch v Forth Valley Health Board [2023] UKSC 26 at [1]). It is for the court, not for medical opinion, to determine the standard of care required of a professional in the circumstances of the case. Lord Browne-Wilkinson provided the following summary:

“These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily pre-supposes that the relative risks and benefits have been weighed by the experts in forming their opinions. 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.

I emphasise that in my view it will seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed.”

Ms Power also relied upon the helpful summary of the relevant principles at paragraph 20-25 of the judgment of Green J, as he then was, in  C v North Cumbria University Hospitals Trust [2014] EWHC 61 QB, [2014] Med. L.R. 189. In particular, the following guidance, at [25], concerning conflicting expert opinion in clinical negligence claims, is of relevance:

“i)

Where a body of appropriate expert opinion considers that an act or omission alleged to be negligent is reasonable a Court will attach substantial weight to that opinion.

ii)

This is so even if there is another body of appropriate opinion which condemns the same act or omission as negligent.

iii)

The Court in making this assessment must not however delegate the task of deciding the issue to the expert. It is ultimately an issue that the Court, taking account of that expert evidence, must decide for itself.

iv)

In making an assessment of whether to accept an expert's opinion the Court should take account of a variety of factors including (but not limited to): whether the evidence is tendered in good faith; whether the expert is "responsible", "competent" and/or "respectable"; and whether the opinion is reasonable and logical.

v)

Good faith: A sine qua non for treating an expert's opinion as valid and relevant is that it is tendered in good faith. However, the mere fact that one or more expert opinions are tendered in good faith is not per se sufficient for a conclusion that a defendant's conduct, endorsed by expert opinion tendered in good faith, necessarily accords with sound medical practice.

vi)

Responsible/competent/respectable: In Bolitho Lord Brown Wilkinson cited each of these three adjectives as relevant to the exercise of assessment of an expert opinion. The judge appeared to treat these as relevant to whether the opinion was "logical". It seems to me that whilst they may be relevant to whether an opinion is "logical" they may not be determinative of that issue. A highly responsible and competent expert of the highest degree of respectability may, nonetheless, proffer a conclusion that a Court does not accept, ultimately, as "logical". Nonetheless these are material considerations…"Competence" is a matter which flows from qualifications and experience. In the context of allegations of clinical negligence in an NHS setting particular weight may be accorded to an expert with a lengthy experience in the NHS. Such a person expressing an opinion about normal clinical conditions will be doing so with first hand knowledge of the environment that medical professionals work under within the NHS and with a broad range of experience of the issue in dispute…"Respectability" is also a matter to be taken into account. Its absence might be a rare occurrence, but many judges and litigators have come across so called experts who can "talk the talk" but who veer towards the eccentric or unacceptable end of the spectrum. …A "responsible" expert is one who does not adapt an extreme position, who will make the necessary concessions and who adheres to the spirit as well as the words of his professional declaration (see CPR35 and the PD and Protocol).

vii)

Logic/reasonableness: By far and away the most important consideration is the logic of the expert opinion tendered. A Judge should not simply accept an expert opinion; it should be tested both against the other evidence tendered during the course of a trial, and, against its internal consistency… A judge will ask whether the expert has addressed all the relevant considerations which applied at the time of the alleged negligent act or omission … a matter of some importance is whether the expert opinion reflects the evidence that has emerged in the course of the trial. Far too often in cases of all sorts experts prepare their evidence in advance of trial making a variety of evidential assumptions and then fail or omit to address themselves to the question of whether these assumptions, and the inferences and opinions drawn therefrom, remain current at the time they come to tender their evidence in the trial. An expert's report will lack logic if, at the point in which it is tendered, it is out of date and not reflective of the evidence in the case as it has unfolded… If on analysis of the report as a whole the opinion conveyed is from a person of real experience, exhibiting competence and respectability, and it is consistent with the surrounding evidence, and of course internally logical, this is an opinion which a judge should attach considerable weight to…”

In Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] A.C.1430 the Supreme Court held, at [82] that a distinction is to be drawn between “on the one hand, the doctor’s role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved”. As explained at [83]:

“The former role is an exercise of professional skill and judgment: what risks of injury are involved in an operation, for example, is a matter falling within the expertise of members of the medical profession. But it is a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment. The doctor’s advisory role cannot be regarded as solely an exercise of medical skill without also leaving out of account the patient’s entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person's rights rests with the courts, not with the medical professions.”

The Supreme Court confirmed, at [87] (per Lord Kerr and Lord Reed JJSC), that a doctor is 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 alternatives or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it”.

At [89] the following point is also of particular relevance:

“…it follows from this approach that the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have on the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.”

In summary, whilst the Bolam test is applicable to the choice of treatment options, it is not applicable to the discussion of those options and their attendant risks with the patient. In respect of the discussion of those options, the doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks in treatment and of any reasonable alternative or variant treatments so that the patient can make an informed decision.

In McCulloch v Forth Valley Health Board [2023] UKSC 26, the Supreme Court returned to the issue of informed consent and considered the applicable test in circumstances in which the doctor failed to make the patient aware of an alternative treatment in a case where the doctor’s opinion was that the alternative treatment was not reasonable and that opinion was supported by a responsible body of medical opinion. The court confirmed that the Bolam test remained the correct legal test for the purposes of determining which treatments were reasonable alternatives (clinically appropriate). Once the Bolam test had been applied to determine the reasonable alternative treatments, the doctor was then under a duty of care to inform the patient of those reasonable alternative treatments and their material risks.

In emphasising both the difficulties which can arise from a late consenting process and the importance of clinical record keeping, Mr Elgot for the Claimant also placed reliance on Snow v Royal United Hospitals Bath NHS Foundation Trust [2023] EWHC 42 (KB), in which the Defendant admitted a failure to obtain informed consent. The Defendant also accepted that it was “sub-standard to consent a patient on the day of the operation” in relation to major surgery of the type in question. The Defendant’s expert accepted that anything a patient was told and signed on the day of surgery does not constitute informed consent and that consent should have been obtained “weeks in advance”, at [102]. The judge held that the Defendant was negligent in relation to record keeping, at [99], and that the surgeon had a total disregard for the need for clinical governance, training, mentoring, supervision, and record keeping, at [105].

The Claimant also relies on Chester v Afshar [2004] UKHL 41, where a patient established that had she been properly warned of the material risks, she would not have had the surgery on the day she did. The House of Lords held that the test for causation was established even if this involved some departure from the normal rules of causation, as the importance attached to the claimant’s right to make an informed decision justified applying a special rule. The parties were agreed that legal arguments as to the application of Chester v Afshar to the facts of this case (as opposed to findings of fact relevant to those issues) fall outside the scope of this trial of the identified preliminary issues.