Liability for careless harm is given its legal expression in the law of negligence, which has developed in English common law by judges setting rules through decided cases (Hatcher v Black [1954]). These cases set out three fundamental elements (Whitehouse v Jordan [1981]) that have to be met for a successful negligence action resulting in the award of compensation:
- The patient was owed a duty of care by the nurse
- There was a breach of that duty of care, which fell below the required standard
- The breach of duty caused loss or harm recognised by the courts
Nurses are considered to be in a duty of care situation when caring for patients (Kent v Griffiths [2001]), with the scope of this duty of care being described as:
‘A single comprehensive duty covering all the ways you are called on to exercise skill and judgement in improving the mental and physical condition of the patient.’
Lord Phillips (Burke v GMC [2005])
This is a duty to be careful, to take care and not to harm the patient through careless acts or omissions.
Professional practice standard
The standard required of nurses when discharging their duty of care stems from a long-standing legal precedent set out in Bolam v Friern HMC [1957]. Known as the Bolam test, it requires that nurses meet the standard of the ordinary skilled person exercising and professing to have that special skill.
The Bolam test was described by the judicial committee of the House of Lords as the locus classicus for the standard of professional practice expected of health professionals, including nurses, and it has been held to apply in cases involving both therapeutic and non-therapeutic or elective procedures (Bolitho v City & Hackney Health Authority [1998]).
In cases of negligence, this professional practice standard is tested by considering whether the nurse acted in accordance with a practice accepted by a respected body of their peers. The standard is determined by the profession and the courts are not at liberty to choose the standard they prefer, unless it can be shown that the evidence to support it does not stand up to logical analysis (Bolitho v City & Hackney Health Authority [1998]).
Duty to warn of risk
The comprehensive application of the professional practice standard to clinical negligence cases ended in Montgomery v Lanarkshire Health Board [2015], in which the Supreme Court adopted a prudent patient approach to the duty to warn of risk and availability of reasonable alternative treatment. The court held that the role of the nurse in such cases was an advisory one that required them to provide sufficient information to the patient about the seriousness of their illness, the benefits and risks of treatment, and the availability of reasonable alternative treatments in order to put the patient in a position to provide informed consent.
This patient-centred approach led the Supreme Court to hold that the Bolam test no longer applied in such cases (Montgomery v Lanarkshire Health Board [2015]).
The advisory role and the professional practice standard
The case of McCulloch v Forth Valley Health Board [2023] returned once again to consider the health professional's advisory role and whether the professional practice standard established in Bolam applied to decisions about what information a patient should be given about treatment and any reasonable alternatives.
McCulloch concerned a claim by the family of a man that his death had been caused by the negligence of the health board. The family argued that the man had not been provided with information about all the alternative treatments available and that, had he been informed, he would have chosen a different treatment and would not have died.
The Supreme Court confirmed that its decision in Montgomery v Lanarkshire Health Board [2015] established that the professional practice test did not apply to a nurse's advisory role in discussing with a patient any recommended treatment and possible alternatives and the risks of injury that may be involved, and that health professionals, including nurses, were under a duty to take reasonable care to ensure that the patient was aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.
However, in McCulloch, the Supreme Court also found that the decision in Montgomery drew a distinction between the exercise of professional skill and judgment and the duty of care to inform. The determination of what were reasonable alternative treatments was considered by the Supreme Court to be an exercise of professional skill and judgement falling under the Bolam test. The court made clear that it still applied and that the decision in Montgomery and did not diminish the force of a nurse's duty of care to inform the patient in order to put them in a position to provide informed consent.
To require health professionals, including nurses, to outline the risks of all possible alternative treatments, even those considered not to be reasonable, was unlikely to be in the patient's best interest and could impair good decision-making. The Supreme Court in Montgomery was keen to avoid that situation arising by emphasising that the advisory role would not be fulfilled by bombarding the patient with technical information they could not be reasonably expected to grasp. Requiring information about every possible treatment would introduce considerable uncertainty and make the nurse's task inappropriately complex and confusing.
The Supreme Court's decision in McCulloch v Forth Valley Health Board [2023] is based on the distinction between the nurse's advisory role and the professional practice standard. The court held that the identification of which treatments were reasonable alternatives, because they were clinically appropriate, required the exercise of professional skill and judgement. They consequently fell within the consideration of the professional practice test, as would the identification of risks associated with any treatment. It was, therefore, for the nurse to decide which treatments were reasonable alternatives, based on what a respected body of peers would consider as reasonable variants in such a case (Bolam v Friern HMC [1957]).
Once it had been decided what were the reasonable alternative treatments through the application of the professional practice test, the nurse would then be under a duty of care to inform the patient of those reasonable alternative treatments and of their material risks (McCulloch v Forth Valley Health Board [2023]).
Conclusion
The Supreme Court decision in Montgomery v Lanarkshire Health Board [2015] created a duty to inform that is separate from the traditional standard of professional practice in Bolam v Friern HMC [1957]. The duty to inform establishes an advisory role that involves a dialogue with the patient, the aim of which is to ensure that the patient understands the seriousness of their condition, as well as the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that they are then in a position to make an informed decision.
It is not clear whether or not the duty to inform is wholly divorced from the professional practice standard, with the Supreme Court in McCulloch v Forth Valley Health Board [2023] holding that nurses and other health professionals exercise skill and judgment in determining what the benefits and risks of treatment are and what alternative treatments would be reasonable. The standard that applies must therefore be the professional practice standard set out in the Bolam test.
To require information to be given on every available treatment would not be in the patient's best interests.
KEY POINTS
- The professional practice standard required of nurses when discharging their duty of care is made by reference to a long-standing legal precedent set out in Bolam v Friern HMC [1957]
- The nurse's duty to inform created the advisory role that requires nurses to provide sufficient information to put the patient in a position to give informed consent
- When deciding what information to give a patient, nurses exercise professional skill and judgement, so the standard that applies to such decisions is the professional practice standard set out in the Bolam test
- Once it is decided what information needs to be provided, by applying the professional practice test, the nurse is under a duty of care to inform the patient of those reasonable alternative treatments and of any risks