The Court of Appeal the judges

The standard practice defence is concerned with the discussion of standard of care. I would be discussing in my essay the way in which professional avoid liability and use the defence of standard of practice to escape liability. There have been a lot of situations where by careless professionals escape punishment for what they have done due to the 'standard practice defence'. I would be considering what cases where the there had been negligence on the path of professionals, and which Standard practice had come to their rescue.

Most of the time 'standard practice defence are used by Medical Practitioners and I would be basing my essay on medical examples. The government should be held into account too for careless professionals getting away innocent in some circumstances. In establishing the standard of professional conduct that ought be reasonably adopted by certain professionals, the law does little more than articulate standards adopted by professionals themselves; it does not impose those of its own. When professionals use the defence of Standard practice, they would have acted negligently or carelessly.

The test for whether a person has acted carelessly is to consider what would have been expected of a reasonable person in the defendant's position. The same rule applies to professionals. If an ordinary person commits an offence, it would be unsatisfactory for them to escape liability by arguing that he had done his incompetent best. However Professionals can argue that they had simply been following Standard of practice, even though what was done wasn't in the best interest of their client. Carelessness isn't measured by asking if a person had fallen below his standard of conduct, but that of the reasonable person.

Sometimes this objective approach can provide a tension between the desire to compensate the plaintiff and the desire to limit liability to situations of moral fault. The case of Wilsher v Essex Area health Authority (19988) illustrates this problem. The case concerned a premature baby who had been placed in a special baby care unit at the defendant's hospital. A junior and inexperienced doctor on duty in the unit and accidentally placed an oxygen monitor in the baby's vein rather than its artery. As a result the monitor wrongly showed that the baby was receiving insufficient oxygen and led to it been giving more. In fact the baby had enough oxygen and hence it had been given too much. It was later discovered that the baby was blind which I one of the possible side effects of being given too much oxygen.

One of the questions in the case was whether the junior doctor had acted negligently. In the Court of Appeal the judges disagreed in their approach. Browne-Wilkinson V-C said that 'so long as the English law rests liability on personal fault, a doctor who has properly accepted a post in a hospital in order to gain necessary experience should only be liable for acts and omissions which a careful doctor with his qualification and experience would have done or omitted.' Judged against the objective standard of the inexperienced doctor, the junior doctor in this case was not careless. Instead, Browne – Wilkinson V-C suggested that the hospital itself might be held negligent if it had failed to provide doctors of sufficient skill to staff its specialist units. However, Mustill and Glidwell LJJ took a different view of the standard to be applied to the junior doctor.

They held that he had to be judged against the objective standard of care of the post of which he occupied, that of someone providing a specialist service. The public should not be expected to put up with a lower standard just to enable junior doctors to gain more experience. Glidwell LJ was clearly concerned that this approach was harsh in relation to the inexperience and he readily found that the junior doctor had done all that could be expected from his post when he showed the x- ray of the monitor's position to the supervising registrar.

The experienced registrar failed to notice the misplacement and it was he who was negligent. Mustill LJ was less convinced that the junior doctor should escape liability but did not rule on the matter because the negligence of the registrar was sufficient to decide on the case. This case illustrates the fact it isn't only the standard of practice defence that provides a defence, but the fact that certain areas of the law aren't clear.

An important point to note when discussing standard of practice is that, the standard to which a Professional will be judged is not going to be the same as that of the ordinary reasonable man, who has no expertise in their field. For example a doctor is under a duty to conform to the ordinary standards of the profession. Legally this has been defined in Bolam v Fiern Hospital Management [1957] WLR 582. In this case Lord Justice McNair stated that "The test is the standard of the ordinary skilled man exercising and professing to have that special skill, a man need not posses the highest expert skill" (Davies P195).

Although on ethical point of view "judges are not qualified to make professional judgements on the practices of other learned professions" (Braizier p87). This statement could be taken as a contradiction to what LJ McNair stated above, it could be seen that doctors are articulating their own standards, because judges do not want to get involved. The first difficulty in application of the Bolam Test arises when applied to junior doctors, who may lack expertise. In this case the courts have felt the need to follow the reasoning given in Nettleship v Weston [1971] 3ALL ER 581.Where a learner driver was held subject to the same standard to that of the reasonably competent driver.

This shows the courts trying to exercise that doctors cannot set their own legal standard. This principle was used in Jones v Manchester Corporation [1952] 2 ALL ER 125 where it was stated that errors due to inexperience were no defence. A contradicting view was seen in Wilsher v Essex AHA [1987] QB 730, where it was stated that when a junior doctor got their work checked, they would not be found liable as they were entitled to have it checked.

LJ Mustil went on to muddy the water by claiming that you could ascertain the standard of practice by reference to the post, he stated he "preferred to relate duty of care not to an individual, but to the post occupied. As it must be recognised that different posts requires different demands." (Stauch p286) The courts are trying to achieve a minimal standard below which no doctor can fall. Emergencies are an exception to the Nettleship v Weston principle.

As M Jones stated "in an emergency it may well be reasonable for a doctor inexperienced in a particular area to intervene, and so he would only be expected to achieve the standard given the situation, which would probably be low" (Stauch p286). This was clarified in Wilsher v Essex by LJ Mustil "an emergency situation may overburden the available resources, if an individual is forced by the circumstances to do many things at once, the fact that he has done one of them incorrectly should not be taken as negligence" (Stauch p286). This shows that common law does little to articulate the standards.

In R v Bateman [1925] 94 LJKB 791, a principle founded was that if the physician is following approved practise he can not be found negligent. This was shown in Marshall v Lindsey County Council [1935] 1 KB 516 where LJ Maugham stated "a defendant charged with negligence can clear himself if he shows that he acted in accordance with general and approved practice" (Lewis p194) What is approved practise? The courts have stated that they will not choose between two schools of thought.