The first issue is whether a person has in fact become a patient of a health-care professional or a hospital. This question is discussed in sections 11–14 of UKCC (United Kingdom Central Council for Nursing, Midwifery and Health Visiting 1996) and some useful illustrations are given. The NMC Code now provides in Clause 1.2:
Clause 1.4 provides:
Patient and client are defined in the glossary in the Code as ‘Any individual or group using a health service’.

The following situation may also help to explain the issue:
Can the guard and the nurse be said to have owed a duty of care to the accident victim that would have required such action? Furthermore, what about the position of the hospital? Were there any organisational failures, such as failure to erect a signpost properly or to man a reception desk, that would make the hospital directly liable for any negligence?

Much will depend on the circumstances of the case and on answers to factual questions such as: How ill did the victim look? What was the time of the incident? and so on. It will be seen that Example 2 of section 14 in United Kingdom Central Council for Nursing, Midwifery and Health Visiting 1996 is similar in facts to the problem discussed. The UKCC states that in its example the nurse would be expected to take some action, comforting and supporting the patient and calling for expert help. Clause 8.5 of the NMC Code would now govern this situation.

An issue does arise of how generally competent nurses are in first aid: not every nurse will necessarily be good at first aid; it will be an acquired skill. A case that is instructive in this area is Cattley v. St John’s Ambulance Brigade (1988) QBD (unreported) (but see Lexis). This case involved an allegation of negligence against two members of the St John’s Ambulance Brigade. It was alleged that the plaintiff’s spinal injuries were made worse by the negligent way he was treated by the St John’s members immediately after his fall from a motor cycle at a schoolboy motor scrambling event. The judge in the case, Judge Prosser, applied the ‘Bolam’ test and stated that the St John’s ambulance men were not negligent because the volunteers had observed the procedures laid down in the Brigade’s First Aid Manual. The judge stated:


Good Samaritans such as the St John’s Ambulance Brigade can be sued. The court would probably expect more from the good Samaritan nurse assisting in an emergency than from a member of the public. A nurse administering first aid would be holding him/herself out ostensibly as somebody who knows what they are doing and the court would probably adopt the conventional wisdom of members of the public generally or, to use a modern phrase, the ‘urban myth’ that all nurses are trained in first aid, which of course they are not. By stopping and assisting at a first aid event the nurse creates a legal duty of care situation and can be sued personally if negligence and damage results.

In determining the legal standard of care if litigation was being brought, lawyers would have to take advice from other nurses in the same speciality. If the case went to trial, the judge would hear expert evidence and would draw conclusions from this as to the standard of professional practice. The legal principles stated come from the well known Bolam case (Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582). In the case, the Judge, Mr Justice McNair, stated what has become known as the Bolam test:
The judge went on to say that a professional would not be liable in negligence:
Clause 1.4 of the NMC Code applies here: ‘You have a duty of care to your patients and clients, who are entitled to receive safe and competent care’. ‘Competent’ and ‘reasonable’ are defined in the Glossary in the NMC Code. The Bolam and Bolitho cases, to be discussed below, are mentioned.

Sections 15 and 16 of United Kingdom Central Council for Nursing, Midwifery and Health Visiting 1996 provide a useful discussion of the concept of reasonableness with reference to the Bolam principle (see above):
If a nurse is a trainee s/he is still expected to accord with the standard of a qualified practitioner (Nettleship v. Weston [1971] 2 QB 691). Nurses who are unsure of what to do should get advice from a more experienced practitioner. By doing so, not only are they acting in accordance with good practice but this is likely to absolve them of liability in negligence (Wilsher v. Essex AHA [1986]3 All ER 801).

The courts have not handed over totally the task of determining the standard of care to the nursing and medical professions. While expert evidence as to nursing or medical practice will usually be accepted, the courts could still overrule a body of professional practice. Nevertheless, the courts would not easily condemn accepted nursing or medical practice as negligent (Jones 2003). The question of what happens when professional opinion differs was considered by the House of Lords in a case involving a nurse plaintiff (Maynard v. West Midlands Regional Health Authority [1984] 1 WLR 634). Staff Nurse Maynard consulted a physician and a surgeon experienced in the treatment of chest diseases. Tuberculosis was considered to be her most likely diagnosis but there were symptoms that also suggested Hodgkin’s disease, carcinoma and sarcoidosis. Unless Hodgkin’s disease was treated early it would prove fatal (as treatment was understood in 1970). The doctors decided upon a mediastinoscopy, which would provide them with a biopsy that they could have examined immediately. The operation involved a risk of damage to the left laryngeal nerve even if carried out correctly. Unfortunately, the nerve was damaged despite the fact that the operation was carried out carefully. The biopsy proved negative and it was later confirmed that the plaintiff was suffering from tuberculosis and not Hodgkin’s disease. She sued in negligence, alleging, among other things, that it was a negligent decision to carry out the mediastinoscopy rather than to await the results of the sputum test. Her action failed. Lord Scarman stated:
These legal principles can be applied to another controversial nursing issue; the Edinburgh University solution of lime (Eusol) wound care dressing debate (Tingle 1990). Many nurses are reluctant to use Eusol, some arguing that they have a professional duty not to do so as they say it is ineffective as a promoter of wound healing. Some consultants like to use Eusol and ask nurses to use it. There have been a number of publicised disputes, as nurses face a conflict between the consultant’s request and their own professional view on Eusol. Applying the principles set out in Bolam and Maynard it can be seen that, generally speaking, it is not negligent to use Eusol because there is a competent body of medical opinion that would support its use (Burton 1993).

Developments in health-care practice generally may influence the manner in which the Bolam test may operate and assist in defining what amounts to a responsible body of professional practice. It is interesting to speculate the extent to which concepts such as evidence-based medicine/nursing and clinical guidelines and protocols will push the standard of care from reasonable practice, in the Bolam sense, to best practice. Evidence-based medicine is practice based on a clear body of research and agreed principles. The Bolitho case can be seen to revamp the notion of ‘evidence-based health-care practice’, giving judicial credence to the concept. The courts now seem to expect more from practitioners: just coasting along on outdated nursing practices that have no evidence base is no longer a tenable practice.

In this case a 2-year-old boy was being treated for breathing difficulties in hospital. He suffered, on one day, two episodes of acute shortness of breath and a doctor was urgently summoned by the ward sister. The doctor failed to attend or arrange for another doctor to attend. Later that day, the boy suffered a respiratory and cardiac arrest. He was resuscitated and was found to have brain damage. The health authority was sued for negligence. It was alleged that the plaintiff’s brain damage was caused by the negligent failure of medical staff to attend. Negligence was admitted by the defendant’s medical staff, who should have attended when summoned, but that was not the end of the matter. Intubation of an infant is not an easy or completely safe procedure. The doctor who had been summoned and failed to attend said that she would not have intubated him even if she had attended. Expert opinion was divided on the necessity of intubation. This case was referred to the House of Lords and the issues of breach of duty and causation were key issues of discussion. The Bolam case was discussed and Lord Browne-Wilkinson’s speech contains the contemporary view on how Bolam will be applied. To an extent, we can see a movement away from reasonable to best or evidence-based practice as the legal benchmark for standard of care to be looked for:

“The use of these adjectives responsible, reasonable and respectable all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.

Expert reports in cases must be evidence-based. We will see in Chapter 4, in Penney and Others v. East Kent Health Authority (The Times, 25 November 1999 (CA)) how the courts can approach national clinical guidelines and the Bolitho and Bolam cases. It is also unclear whether nurses will be subject to the same degree of scrutiny as doctors, or indeed whether the courts would be willing to undertake a more rigorous review than is the case regarding medical decision-making. (See also the discussion of Bolitho in Chapter 5.)

A nurse would not necessarily be viewed as being negligent if s/he departed from accepted nursing practice in a particular situation. For example, a wound care specialist might decide, on the basis of a recent research study, to mix two types of topical wound care solution together and apply them to a patient’s wound, arguing that recent research had shown that when the solutions are mixed together they became more effective. This is not, however, the conventional way to apply the solutions. If problems did occur and the patient then took legal action, the nurse would have to justify the departure from conventional practice. There is a clear danger in accepting claims made by one research paper only. There is a need for confirmation and exploration of the implications of changing practice. There must be critical appraisal of new research.

If a nurse is given instructions by a doctor but is of the view that these are wrong, what should s/he do? It is suggested that it would be good practice to raise the concerns with the doctor. But if the doctor disagrees and the nurse goes along with the doctor’s instructions, then if harm results the nurse may be held not to be negligent because s/he was acting on doctor’s orders (Gold v. Essex County Council [1942] 2 All ER 237; Montgomery, 1995 and Montgomery, 1997), although this may be an approach that the courts are less willing to take as the nurse’s role in clinical practice increases still further.

The nurse in the above example might have felt that there were no real significant adverse risks to the patient in his/her proposed course of action, the benefits outweighing any treatment risks. Whether the nurse was correct in his/her assessment would be an important issue for the experts to determine in their reports to the lawyers.