Lasting Powers of Attorney: recent key developments
The recent case of FB v Rana is helpful in many ways: It clearly sets out that where a doctor, in a particular post, does not exercise the degree of skill for the task in hand the Health Trust is liable.
The Defendant had sought to argue (and succeeded in the lower Court) that because of a doctor’s relative inexperience it was not substandard for the doctor to have failed to elicit the relevant history. Lizanne Gumble QC successfully argued to the Court of Appeal that the Court should be concerned with the acts and/or omissions of a doctor in the context of a particular task. Lady Justice Thirlwall comments,
“There is often a correlation between the complexity of a task and the seniority of a doctor but many tasks are carried out by doctors of different seniority; surgery is often performed by a consultant surgeon. When it is performed by a registrar the standard of competence required is the same as that required of the consultant."
Lord Justice Jackson, having endorsed Thirlwall LJ’s reasoning, added what he describes as an “acute” question: what standard of skill and care should the Law require from a young professional in the early years of her career? He goes on to look at the general law of negligence, professional negligence and then narrows it down to the present case reciting what is, essentially, the established position that the doctor “must be judged by the standard of a reasonably competent SHO in an accident and emergency department”. He goes on to state that the fact that the doctor in this case was relatively inexperienced did not diminish the required standard of skill and care.
However, it is his parting comments that, as a claimant practitioner I was very heartened to see and wish to emphasise. They are as follows “I must acknowledge that junior hospital doctors work long hours under considerable pressure. They are often involved in life and death decisions. The pressures can be even greater when they are working all night … If mistakes are made, it is devastating for the patient and it is expensive for the NHS Trust. Doctors, however, are human. Even good and conscientious doctors may, from time-to-time, fall short. This is not a reason to lose heart or (even worse) to abandon medical practice. Those who have learnt from past mistakes often have even more to offer”.
Over recent years I have devoted a lot of energy to trying to reinforce this message to the medical profession. (Below are a few of the blogs I have written around the subject.)
Reading this comment from one of the leading judges in the country was heartening and I hope, helps to shift the dial away from blame and towards acceptance, accountability and learning.
For further information, please contact a member of the Medical Negligence & Personal Injury team on 020 7814 1200 or by emailing us at firstname.lastname@example.org.
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