One size fits all or made to measure? Is the professional standard of care about to be reassessed?

by Bart Kavanagh

For the half a century since Bolam [1957], the standard by which competent professionals have been judged in performing their duties has been one of “reasonable skill and care”. During this time what constitutes reasonable and care has been considered to be what is; “accepted as proper by a responsible body of professional opinion.” [1]

Sidaway [2] [1985] considered the professional duty of care with respect to warning about risks. In this medical case Lord Scarman considered the characteristics and interests of the particular patient in assessing the appropriate test and expressed the view, obiter, that the law; “…recognises a right of a patient of sound understanding to be warned of material risks save in the exceptional circumstances to which I have referred.” Lord Diplock, however, was of the firm opinion that; “The Bolam test should be applied.”

The judgment in Bolitho [1998], confirmed Bolam as the appropriate test but stipulated that the body of professional opinion should be such that it; “could not be rejected as incapable of standing up to rational analysis.” [3]

Nevertheless, throughout this string of cases, the profession remained the arbiter of the standard.

In 2015, however, the case of Montgomery [4] signalled a change for the medical profession that may also have implications for architects.

In outline Mrs Montgomery, who suffered from diabetes, became pregnant. Diabetes increases the likelihood that a foetus will have broad shoulders and consequently increases the risk of a condition known as shoulder dystocia, where the shoulders are too wide to pass thorough the birth canal and caesarean delivery is required. The risk of serious complications is small and the Doctor decided that Mrs Montgomery did not need to be warned of that risk. The rationale for this decision, which was supported by a considerable body of medical opinion, was that almost every woman, if warned of this risk, would elect to have a caesarean delivery, which carries risks of its own.

In the event the risk materialised, the baby was born with severe disabilities and Mrs Montgomery took action against her doctor for professional negligence.

In upholding Mrs Montgomery’s claim, the Supreme Court considered the Australian case of Rogers. In this case the court adopted the approach suggested by Lord Scarman in Sidaway and reconsidered the test in the light of the actual circumstances and expectations of the particular patient rather than those of a hypothetical reasonable patient. The Australian court said:

“a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.” [5]

Lord Kerr and Lord Reed agreed, saying:

“That is undoubtedly right: the doctor’s duty of care takes its precise content from the needs, concerns and circumstances of the individual patient, to the extent that they are or ought to be known to the doctor.” [6]

They also considered that:

“… patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices”. [7]

This is a view that could well be applied to an architect in relation to personal clients where the passage from Rogers may be recast as:

“a risk is material if, in the circumstances of the particular case, a reasonable person in the Employer’s position, if warned of the risk, would be likely to attach significance to it or if the Architect is or should reasonably be aware that the particular Employer, if warned of the risk, would be likely to attach significance to it.”

It is not difficult to see the application of the reformulated test with respect to an architect’s private residential clients, and possibly others who are embarking on a construction project for the first time, who have little or no prior experience of the industry and its complexities. Might an Architect be expected to recognise a greater need for care and advice for such clients when compared to a corporate or institutional client with experience of procurement and its risks?

This is potentially a significant shift of emphasis. No longer would the test rely upon what a responsible body of professional opinion considers to be reasonable, and which a competent architect could reasonably assess. Instead it would require an architect to consider the likely reaction not of a hypothetical reasonable client, but of the particular client, if warned of the particular risk, where the architect knows, or ought to know, the needs, concerns and circumstances of that particular client.

[1] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, para. 587

[2] Sidaway v Bethlem Royal Hospital and the Maudsley Hospital Health Authority & Ors [1985] AC871

[3] Bolitho v City and Hackney Health Authority [1998] AC 232, paras 241 – 243

[4] Montgomery v Lanarkshire Health Board [2015] UKSC 11, on appeal from [2013] CSIH 3 and [2010] CSIH 104

[5] Rogers v Whitaker(1992) 175 CLR 479 (pp489 – 490)

[6] Montgomery paragraph 73

[7] Montgomery paragraph 75
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