It is established law that when you take advice from a professional, that professional owes you a duty of care. But what do we mean by duty of care? The purpose of this article is to explore this question.
When a judge is presented with the question of whether a person has complied with their duty of care, he will ask whether an ordinary person would consider that person to have complied with the relevant duty. However, in the context of an expert (whether that be medical, legal or any other form of specialist) that test is not satisfactory. While a judge may be highly trained in the law it is unlikely that he will have sufficient expertise to decide whether a non-legal specialist has performed within the standard expected.
The Bolam Test
For this reason, courts have developed something known as the Bolam test; so named because it originates in a case called Bolam v Friern Hospital Management Committee 1 WLR 582. In that case, it was held that a doctor was not negligent if he acted in a way that was widely accepted within the medical profession.
The Bolam test was later applied not only to medical professionals, but for any kind of professional where it would not be considered reasonable for a Judge to have the specialist skills necessary to decide whether or not they have acted to a sufficient standard.
Since then, the Bolam test has been the established approach. Professionals realised that, as long as they act in a way that their profession will generally consider to be appropriate, then they can operate with a relative element of freedom. This led directly to the development of principles such as industry standards and has deeply influenced the professional codes of conduct that have emerged over the last 20 to 30 years.
Montgomery v Lanarkshire Health Board
Recently there have been indications that the courts are now moving away from the Bolam approach as they are concerned that it is too simple to properly assess the liability of professional.
In Montgomery v Lanarkshire Health Board UKSC 11, the Supreme Court felt that the Bolam test did not reflect the reality and complexity of the way in which modern health care services were provided. The court held that the correct test should involve an examination of whether the professional had informed the patient of any material risks in relation to the possible route of treatment. It is then up to the patient to decide which of the available forms of treatment to undergo. The skill for the doctor was to determine about what risks a reasonable person in the patient’s position would be concerned. This would depend upon the circumstances of each case.
The test proposed in Montgomery is substantially more complex than the test in Bolam. No longer will it be sufficient for a professional to rely upon what is considered to be an acceptable course of action by their profession. Now, it is incumbent upon the professional to determine what the correct advice is, based on the specific needs of the person they are advising. Such a test, even though more complex, might be more appropriate in what is an increasingly consumer-focused legal world.
Application in England and Wales
Montgomery was a Scottish case and therefore the application of its principles within English law was, for some time, in doubt. However, the principles were clearly popular as they were taken up by the Court of Appeal for Northern Ireland in the case of Baird v Hastings NIC 22 and have now been adopted by the High Court in England. In the case of O’Hare v Coutts & Co EWHC 2224 [QB] Mr Justice Kerr held that the Bolam test was not the appropriate test to consider whether a private banker had breached their duty of care to their client when providing investment advice.
So what do these recent cases mean for the future of the Bolam test? It is unlikely that the Bolam test will die out completely, but it is clear that judges are frustrated by its inflexibility. The courts have decided that a more flexible test, considering the circumstances of the parties, is more appropriate and workable. This is particularly so in circumstances where there is no consensus within a profession as to how a particular course of action should be carried out.
In practical terms, this means that there is less certainty both for professionals and also consumers in respect of what they can expect from the experts that they instruct. It is hoped, however, that this approach will be ultimately beneficial in a world in which the clients of professionals are seen predominantly as consumers. A positive of the new approach is that it should lead to customers receiving more of a bespoke service from professionals than the ‘one size fits all’ approach that they might otherwise be subject to.