per week overtime. However, in exercising its discretion to require that overtime
working under the contract, the health authority could not load work onto the
plaintiff to such a level that it was reasonably foreseeable that his health might be
damaged. This, however, does not answer a second problem which is whether
medical practitioners, who feel that the work structure is such that adequate care
cannot be delivered to the patient, may then refuse to work further without
incurring the risk that they would be held to be in breach of their contract of
employment.
8.2 The problem of inexperience
One problem facing nurses is that much of their training is on-the-job. In the case
ofWilsher,ajunior and inexperienced doctor, wishing to monitor the oxygen in
the bloodstream of a premature baby, mistakenly inserted a catheter into a vein
rather than an artery. Sir Nicolas Browne-Wilkinson accepted in that case that,
under ordinary principles ofBolam,it would be generally futile to plead inex-
perience as a reason for failure adequately to provide specialist or technical
medical services, since fault would lie in embarking on the course of treatment in
the first place. However, where, as in the instant case, a first year houseman is
required to acquire the necessary skill and experience in order to qualify further,
such doctors cannot be said to be at fault if, at the start of their time, they lack the very skills which they are seeking to acquire'. This led Sir Nicolas Browne-Wilkinson to suggest that the standard should be fixed by reference to the post occupied by the person in question. Otherwise,the
young houseman, or the doctor seeking to obtain specialist skill in a special unit
would be held liable for shortcomings in treatment without any personal fault on
his part at all'. He went on to argue that liability in English law rests upon personal
fault so that liability should only follow if the acts or omissions of medical
personnel fell short of their qualifications or experience.
This might give some consolation to nurses for it would mean that placed in
situations in which their lack of experience exposed them to the threat of legal
action, they could plead such inexperience and argue that they met the duty placed
upon them personally. In fact as nurses become more specialist and as more
responsibility is given to nurses in terms of nurse-led primary care, this notion of
pleading `inexperience' becomes more remote. But in any case, this judgment
omits a vital part of theBolamtest and the majority of the Court of Appeal rejected
it as a correct formulation of the law. The court stated that the standard of care
must be set in accordance with the special skill which the person professes to have.
The patient is generally in no position to enquire whether, for example, a nurse
actually possesses such a skill, hence the objectivity of the standard. If nurses hold
themselves out to the patient as competent to undertake a particular procedure, a
duty of care will arise and will be breached if the procedure is negligently
performed.
Sir Nicolas Browne-Wilkinson's suggestion of a requirement of personal fault
has appeared in earlier cases on medical malpractice [8]. It is worth noting where it
leads. It would introduce a subjective standard and in so doing might lead to the
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