The law following Bradfield-Kay v Cope [2019]

ARTICLE

In Bradfield-Kay v Cope [2019] EWHC 3881 (QBD) (handed down 21 May 2020), HHJ Sephton QC made some welcome remarks on when a Defendant might be able to rely on the well-established Bolam defence. That defence typically affords that provided the defendant acted in accordance with a responsible body of opinion (in this case, medical opinion), he cannot be held to have been professionally negligent. The defendant relied on expert testimony, which was not disputed that the manner in which the defendant surgeon had conducted the specified procedure was consistent with the practice of other surgeons performing the same operation. HHJ Sephton QC disagreed. 

The position laid down in Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 583 at [587]: 

I myself would prefer to put it this way, that he 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 that 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 who would take a contrary view.

This statement of the law was developed by Lord Browne-Wilkinson in Bolitho v City and Hackney HA [1998] AC 232 at [241]: 

… in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. [1957] 1 W.L.R. 583, 587 stated that the defendant had to have acted in accordance with the practice accepted as proper by a ' responsible body of medical men.' Later, at p. 588, he referred to 'a standard of practice recognised as proper by a competent reasonable body of opinion.'

Again, in the passage which I have cited from Maynard's case [1984] 1 W.L.R. 634, 639, Lord Scarman refers to a 'respectable' body of professional opinion. 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. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.

HHJ Sephton QC agreed at [41] that there are: 

...plainly a body of surgeons undertaking hip arthroplasties that hold the opinion that surgeons should ensure that (so far as possible) the acetabular componant is not placed in a position that could interfere with the iliopsoas tendon such as beyond the acetabular margin of the native acetabulum. Both [experts] Mr Chatterji and Mr Manktelow subscribe to this view.

However, HHJ went on to say that, in short, there was more a responsible surgeon could be doing to mitigate this kind of incident than this 'body of opinion' was acknowledging, considering additional steps to lessen the likelihood of complications not to be unduly onerous for a competent surgeon. HHJ stated at [42]: 

In my view, the evidence justifies a finding that there is a body of surgeons that does not hold that opinion.

Crucially, when asked to apply the Bolam defence to justify the defendant's practice as not being negligent because it was supported by a responsible body of expert opinion (as per Bolitho), HHJ said: 

In my view, both Bolam and Bolitho require the court to examine the different schools of thought and to ask itself whether the school of thought relied upon by the defendant can demonstrate that its exponents' opinion has a logical basis. I reach the conclusion that there was no logical basis...no good reason has been advanced for not taking this precaution. It has not been shown that the two views show that there is a nice balancing of different risks about which surgeons could reasonably disagree. The risk...was a well recognised risk which could easily have been identified...there was no surgical or anatomical reason for running the risk in this case.

Key points

Nigel Poole QC, in his blog post, Learned Friend, summarises the key points from the case as follows: 

1. A claimant does not have to prove that the defendant's error was unique in order to establish that it was a breach of duty.
2. The fact that other healthcare professionals might adopt the same technique or practice as the defendant does not mean that the practice is considered "proper" or acceptable.
3. The court should always consider whether a body of opinion that apparently condones the practice in question is a "responsible" body of opinion. If the defendant's own expert considers that the body of opinion that shares the defendant's practice is wrong, then the court is surely likely to find that the body of opinion is not "responsible".
4. The court should always consider whether the practice that is condoned by a body of opinion is logical or rational. Whilst the courts will pay due regard to professional opinion, judges are the ultimate arbiters of whether a practice is logical or rational.

I would add to that my own thought that HHJ appears to have placed particular significance on the availability of reasonable alternatives that might mitigate the risk in coming to his judgment. 

Relevance to leisure litigation

This case arises in a medical professional negligence context and, to my knowledge, has not been established in relation to professional negligence in a leisure context. The logic and reasoning of HHJ Sephton QC appear to me to be a sensible approach and a reflection of the complexities provided by an increasingly professionalised and specialised workforce. It should be welcome news to risk practitioners who have long found it frustrating to challenge the dominancy of small groups of well-known colleagues who are able to control the responsible body of opinion through the production and alteration of industry guidance which is selective in its evidence base and limited in its independent scrutiny. This is increasingly important in the new areas of expertise the court calls on when the key industry guidance is not subject to independent peer review or scrutiny as was customary in the fields of expertise the Court has long accepted.

The Court must remain the final arbiter on what constitutes a responsible body of opinion in professional negligence cases in order to afford a logical and progressive approach as our knowledge of complex risks develop in the workplace setting. Those with professional responsibilities must understand the responsibility to maintain their professional competency as part of the professional role and not an annual minimum standard compliance exercise to satisfy their professional body once per year. 

Citation: Jacklin, D. 2020. When following a responsible body of opinion does not give rise to a Bolam defence in law. The law following Bradfield-Kay v Cope [2019]. Water Incident Research Hub, 25 May.