Bolitho v City and Hackney Health Authority

Professional opinion does not conclusively determine whether clinical conduct was negligent. The supporting body of opinion must be responsible, reasonable and capable of withstanding logical analysis. Where treatment requires risks and benefits to be balanced, the experts must have considered the comparative risks and reached a defensible conclusion.

Where negligence consists of an omission, causation first requires a factual inquiry into what would have happened had the duty been performed. The professional standard has no role in that inquiry. If the practitioner would not have taken the injury-preventing step, the claimant may nevertheless prove causation by showing that proper continuing care required that step. A defendant cannot rely on a hypothetical further breach of duty.

Bolitho v City and Hackney Health Authority concerned a two-year-old child who suffered respiratory failure, cardiac arrest and severe brain damage after a paediatric registrar failed to attend him following two acute respiratory episodes. The registrar's failure to attend, or to arrange a suitable deputy, was admitted to be negligent. The child subsequently died, and his mother continued the proceedings as administratrix of his estate.

Hutchinson J found that the registrar would not have intubated the child had she attended. He also accepted that a responsible body of medical opinion regarded non-intubation as appropriate. The claimant therefore failed to prove that the admitted breach caused the injury. The Court of Appeal dismissed an appeal by a majority, Dillon and Farquharson L.JJ., Simon Brown L.J. dissenting: [1994] 1 Med. L.R. 381.

The central issues before the House were how causation should be analysed where negligence consisted of an omission, and whether a court was bound to accept genuine professional opinion as establishing compliance with the required standard of care.

1. Disposition. Lord Browne-Wilkinson delivered the leading speech. Lord Slynn of Hadley, Lord Nolan, Lord Hoffmann and Lord Clyde agreed with his reasons. The appeal was dismissed unanimously. Although the failure to attend was negligent, the claimant had not proved that proper attendance would have prevented the cardiac arrest.
2. Causation following an omission. Per Lord Browne-Wilkinson, the claimant retained the burden of proving that the admitted breach caused the injury, consistently with Bonnington Castings Ltd. v Wardlaw [1956] AC 613 and Wilsher v Essex Area Health Authority [1988] AC 1074. The first inquiry was factual: what would the registrar or her deputy have done if attendance had occurred? The professional-practice test in Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 583 had no relevance to that question.
3. Hypothetical further negligence. Per Lord Browne-Wilkinson, the registrar's evidence that she would not have intubated did not by itself defeat causation. A defendant cannot contend that the damage would have occurred because a further breach would have followed the original breach. Adopting the analysis in Joyce v Merton, Sutton and Wandsworth Health Authority [1996] 7 Med. L.R. 1, causation could alternatively be established by proving that the continuing exercise of proper care required intubation.
4. Logical analysis of professional opinion. Per Lord Browne-Wilkinson, evidence that medical experts genuinely supported the defendant's conduct was not conclusive. The description of the relevant body as responsible, reasonable or respectable requires the court to be satisfied that its opinion has a logical basis. In cases involving comparative risks and benefits, the experts must have considered those matters and reached a defensible conclusion. Hucks v Cole [1993] 4 Med. L.R. 393 and Edward Wong Finance Co. Ltd. v Johnson Stokes & Master [1984] 1 A.C. 296 demonstrated that professional practice could exceptionally fail that standard.
5. Application. Per Lord Browne-Wilkinson, this was not one of those rare cases. The view favouring non-intubation rationally balanced the small perceived risk of total respiratory failure against the mortality, morbidity and other risks of an invasive procedure. The trial judge was entitled to accept that view and had correctly declined merely to prefer one of two logically supportable bodies of expert opinion.

• House of Lords: The House unanimously dismissed the appeal and left the Court of Appeal's order undisturbed: [1997] UKHL 46; [1998] AC 232.
• Court of Appeal: Dillon and Farquharson L.JJ., Simon Brown L.J. dissenting, dismissed the claimant's appeal: [1994] 1 Med. L.R. 381.
• High Court: Hutchinson J found an admitted breach of duty but held that causation had not been proved because non-intubation accorded with a responsible body of professional opinion.