Chapter 8
Responsibility,Liabilityand
ScarceResources
A The Legal Perspective
Robert Lee
Arguments rage about the availability of resources for health care. In spite of
government claims regarding additional resources and falling waiting times within
the NHS, it is apparent that delivery of medical services takes place in a climate of
resource constraint. The purpose of this section is to examine the legal problems
which may arise for the nurse in attempting to provide patient care and maintain
professional standards under such economic pressures. Among the issues con-
sidered are the possible allowances made by the courts if nurses are asked to
perform duties which outstrip their competence or qualifications, and the options
for the nurse faced with such a request. In order to consider this, it is necessary to
explain the standard of care demanded by the law.
8.1 Standards of care
All nurses owe their patients a duty of care [1] Liability is likely to follow if that
duty is breached [2]. This is an issue covered in detail in Chapter 6A, but it may be
useful to reiterate some basic points here. A breach will consist of a failure to meet
the requisite standard of care. Famously, that standard is determined by theBolam
test ± the standard of the ordinary skilled man exercising and professing to have that special skill' [3]. This standard is objective. This is a well-established principle and was reiterated in the House of Lords inWhitehousev.Jordan/1981) [4], on appeal from a judgment of Lord Denning in the Court of Appeal which seemed to propoundthe near infallibility of clinical judgement' [5]. Lord Edmund-Davies
stressed that if a surgeon /as it was in that case) fails to meet theBolamstandard in
any respect ± even while within the exercise of clinical judgement ± then the
surgeon must be adjudged negligent. He cited with approval theBolamtest as
applied in the decision of the Privy Council inChin Keowv.Government of Malaysia
/1967):
`[W]here you get a situation which involves the use of some special skill or
competence, then the test as to whether there has been negligence or not is not