the person giving the care, rather than to the rank or status of that person or to the
individual characteristics or training of that person. Thus, for instance, where the
performance of work of a type which is reasonably done by staff nurses is
criticised, the question of whether the work has been done negligently will be
answered by reference to the standard expected of responsible staff nurses, not by
reference to the standard which might normally be expected of that particular staff
nurse with her particular experience [8].
Liability for negligent prescribing by nurses is likely to be approached by the
courts, at least for the next few years, by reference to the standard of prescribing
expected of those doctors who originally performed the task which the nurse has
taken on. Public policy considerations make it inconceivable that nurses will have
less expected of them.
There is a legal duty to keep reasonably up to date [9], but the courts do not
expect practitioners to read every relevant article which appears in the professional
press [10]. Of course the duty to keep up to date includes a duty to know about
guidelines affecting the profession: it is far less excusable not to know of a relevant
NICE guideline than it is not to have read an editorial in an immensely obscure
specialist journal.
It is clear that one does not decide that a particular practice is or is not
responsible by counting the numbers of practitioners who do or do not do it. This
principle is important in cases involving super-specialists doing pioneering work
De Freitasv.O'Brien 1995)).
6.3.2 Obtaining properly informed consent
In the past theBolamtest has been held to apply to the issue of obtaining consent
from patients. Thus a clinician would not be negligent if what he had told a patient
about a procedure would be what a responsible body of practitioners in the rele-
vant specialty would have told that patient Sidawayv.Board of Governors of the
Bethlem Hospital and the Maudsley Hospital 1985)).
This extension ofBolamto the realm of consent has recently been doubted by
some commentators, although theSidawaycase which asserted it a House of
Lords case), has certainly not been overruled. The doubts arise from an off-the-cuff
comment inBolithoto the effect that the remarks there about theBolamprinciple
were made in the context of `... cases of diagnosis and treatment' [11], not in the
context of consent to treatment. In inserting this caveat the House of Lords might
have had in mind the Senate of Surgery's documentThe surgeon's duty of care[12],
which has subsequently been extended to all registered medical practitioners by
the GMC's guidelines:Seeking patients' consent: the ethical considerations[13]. The
details of these guidelines do not matter for present purposes. It is enough to say
that they state categorically how consent must be obtained. If the ruling body of
medical practitioners states that particular procedures must be followed, can it
seriously be argued that there is a responsible body of medical practitioners which
would not follow those procedures? The point is a moot one: it has yet to be tested
in the courts.
The relevant guidelines on consent for nurses are in the UKCC's 1996
publicationGuidelines for Professional Practice.They are much more sensible and
Negligence 79