Mental Capacity Case

O'Brien v Guy's & St Thomas' NHS Trust

HHJ Tindal, sitting as a High Court Judge

We briefly mention the personal injury case of O'Brien v Guy's & St Thomas' NHS Trust [2022] EWHC 2735 (KB) for its consideration of the correlation between negligence and acting contrary to national and/or in-house clinical guidelines. The central issue was whether a doctor was negligent in administering a certain dosage of antibiotic whilst a patient was in ICU. After helpfully reviewing the authorities, HHJ Tindal summarised the legal principles at paragraph 88:

(1)    Even 'national' clinical guidelines are not a substitute for clinical judgement in an individual case. This is made clear by NICE and many of its actual clinical guidelines, by the GMC and by Courts e.g. Montgomery, Sanderson and Hewes.
(2)    It follows even 'national' clinical guidelines are not a substitute for expert evidence about that impugned clinical judgement (Loveday). However, they may inform expert evidence, e.g. as additional evidence of a Bolam-compliant body of practice at a particular time, even if the guideline comes later (Jones, Dowson).
(3)    Departure from a national guideline is not necessarily prima facie evidence of negligence, but is likely to call for some explanation: with the nature and detail required depending on the circumstances, including the strength of the guideline's 'steer' (Price). So, departure from an 'unsatisfactory' (e.g. incomplete, flawed or contradictory) guideline may not require so detailed an explanation (Sanderson).
(4)    Compliance with a national guideline may be prima facie inconsistent with negligence if the guideline constitutes a Bolam-complaint body of opinion or practice (Bland). It may not do so if 'unsatisfactory' (in a similar sense), but it may still 'militate against negligence' depending on the circumstances (Cumbria). However, these points do not apply to 'in-house' guidelines, as a defendant cannot in principle (or probably in practice) set their own Bolam standard of care.
(5)    What ultimately matters is whether the conduct fell within a Bolam-compliant practice in the usual way (Hewes, Cumbria, Price). Just as guidelines are no substitute for clinical judgement and expert evidence, they are no substitute (nor a shortcut) for the Bolam/Bolitho approach. However, as clinical guidelines are relevant, practitioners and experts should consider whether any national clinical guidelines were applicable - and if any 'in-house' guidelines should be disclosed.