Clinical care comes under the spotlight

Atwood v Health Service Commissioner (Queen's Bench Division - 6 October 2008)

The claimant sought to judicially review a report of the Health Service Commissioner. The report was prepared following a complaint relating to the clinical care of a deceased patient and the quality of communication between those providing the treatment and the patient.

The claimant argued that the Health Service Commissioner misdirected herself in law because she failed to apply the Bolam test to issues relating to clinical decisions. Following Bolam, the actions of a healthcare practitioner can be defended if they would be supported by a responsible body of practitioners and withstand logical analysis. The claimant also raised a number of other points relating to the detail of the report.

The report stated that the Bolam test is used by courts for negligence claims and that the purpose of this investigation was somewhat different; it was to consider whether the family suffered injustice or hardship as a consequence of any failure in the service.

The standard of proof is, therefore, lower than for negligence. The test applied here was whether the service "fell below a standard which the patient could reasonably have expected in the circumstances".

As a matter of principle, it was held that the Health Service Commissioner was not required to stick to the approach of courts in negligence actions, even in relation to matters of clinical judgement. However, the approach taken must be a coherent one.

Comment

This case reflects the general principle that the function of the NHS complaints system is distinct from issues of clinical negligence. It highlights the difference between complaints and the litigation process, which we regularly see when considering issues of disclosure. - Ella Pirgon, BLM London.

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