Liability for negligence by members of professions

Abstract

The themes of the thesis arise from a perceived increase in the incidence of liability for negligence by professional persons. Factors affecting the increase are many and show there is a delicate balance to be maintained between independent action on the part of the professional and control by regulatory agencies such as the professional bodies and the courts. Chapter 1 The history of professional negligence is intimately connected with the development of the tort of negligence and the law of contract. Professional liability derived from membership of a 'common calling' and was based, initially in tort and later in contract, on doing badly or not at all something which had been undertaken. Chapter 2 A profession may be described as an occupation which displays certain traits in common with a number of other occupations. Among most important traits are autonomy from outside control, maintenance of standards and discipline. In the case of the latter two traits the courts also assume an overriding role. As a result, it is inevitable that there can be no absolute autonomy. However, if the professions do their jobs well enough then there should be less need for court supervision, bearing in mind that the courts, and not the professions, will deal with claims for compensation by those injured by professional activity. Chapter 3 Professions are concerned about the increasing incidence of claims in professional negligence. Such is the relationship between professional and client that duties may arise in contract and in tort. For the purpose of investigating professional negligence attention has been focussed upon the legal and medical professions. Much of the concern has been fuelled by disturbing accounts of malpractice liability in the USA. American trends may well develop in the UK but owing to cultural differences and differences between legal and medical systems the full impact will not be felt. Among factors which lead to concern over liability and which affect both professional and client, although differently, are causation, proof of negligence, level of awards, nature of awards and insurance. There are many procedural problems as a consequence of these factors. Chapter 4 The liability of the legal profession is examined. The liability of barristers arises in tort. Liability of solicitors, though formerly exclusively based upon breach of contract, is now based on contract and tort. A major area of concern has been the expanding scope of solicitors' negligence, particularly in the light of recent developments in the House of Lords. It appears that the prospect of widening liability has receded for the moment. Chapter 5 Advocates' immunity produces an anomalous situation of which barristers are the main beneficiaries. Immunity exists because of public policy considerations upheld by the courts. Other professions see no justification for the immunity and it is not granted in some other jurisdictions. In a climate of consumerism the immunity is under attack. Chapter 6 Medical negligence affords an opportunity to examine the mechanism for maintenance of standards of one group of professionals. The General Medical Council is charged with maintaining professional standards. However, it has little control over the standards associated with negligence and cannot, in any event, provide compensation for injured persons. The courts have this task and the issue of negligence standards falls to be considered by them. Unfortunately, the standards of the medical profession as a whole are taken to be the standards relevant for negligence. Thus, the accountability of the medical profession to the courts, and ultimately patients, is limited. Chapter 7 Disclosure of risk provides some insight into the doctor/patent relationship. In actions relating to non-disclosure of risk there is no allegation that medical treatment or procedures have been negligently performed. The patient suffers the consequences or side-effects of adequately performed procedures. The gist of the allegation is that there would have been no consent to the procedure if the risks had been disclosed. The problem is what risks should be disclosed? The issue raises questions about how far a patient has an interest in what happens to his own body, and how much patients should participate in decision-making. Conclusions There is no professional negligence "crisis" but there is a need to maintain vigilance in order that a balance might be maintained. Suggested reforms of the legal profession may produce adequate standards and discipline. Proposed reforms of health care provision may produce their own problems with regard to negligence. Substitution of a 'no fault’ system for tort liability might be a way forward.