8.5 Lack of resources
Once a finding of fact is made that provision is in some way inadequate, a related
issue arises of whether it can ever be a defence to plead lack of resources. The
answer is simply no. If nursing staff meet approved nursing practice to aBolam
standard, then this may refute a claim of negligence, but if they fall short of that
standard, then, once again, it does not matter why, and lack of resources is no
better an argument than that of tiredness or inexperience.
However, in spite of the objective nature of the standard, and the lack of any
necessary element of personal fault in a finding of negligence, there is without
question a move away from finding medical staff liable in situations in which lack
of adequate resources makes it impossible to meet a required standard. This is
clear from the judgment of Sir Nicolas Browne-Wilkinson inWilsherin which he
poses the following question:
`Should the authority be liable if it demonstrates that, due to the financial
stringency under which it operates, it cannot afford to fill the posts with those
possessing the necessary experience?'He goes on to say:
`in my judgment, the law should not be distorted by making findings of personal
fault against individual doctors who are, in truth, not at fault in order to avoid
such questions.'Similarly inRobertsonv.Nottingham HALord Justice Brooke, in finding that the
hospital system had been negligently run, expressed the following view:
`It would be unjust and unfair to hold that Dr X, after being let down... by the
negligence of others, was himself negligent.. .'One can quibble with this. It is not the law which is being distorted; rather it is the
law which is distorting the concept of blame. Nonetheless, this move away from
the concept of individual liability on the part of a medical professional, in favour of
asking questions about the organisation as a whole, is significant, and it is
important to understand what it represents.
In broad terms, the courts have been very reluctant to interfere with resource
decisions made in good faith within the NHS. Most famously, InRv.Cambridge HA
ex parte B /a minor)/1995) the Court of Appeal refused to intervene when a health
authority refused to fund treatment for a ten year old girl with leukaemia, even
though at first instance Mr Justice Laws would have demanded that the health
authority show that the priorities that it had established had taken account of all
relevant factors. This was rejected by the Court of Appeal which stated that difficult
resource decisions were not a matter for the courts. The courts would not be
minded to intervene unless the decision made was manifestly such that no
reasonable authority could have reached it ± seeAssociated Provincial Picture
Housesv.Wednesbury Corporation/1948) /Wednesburyunreasonableness).
This is a complex area which the writer has considered in much more depth
elsewhere [10]. However, it is important to state that the first chinks in the judicial
armour can be detected. To begin with, in a NHS which is subject in all sorts of
138 NursingLawandEthics