Boustead v North West Strategic Health Authority

Clinical negligence is determined by whether the treatment accorded with a practice accepted as proper by a responsible body of skilled practitioners, provided that the supporting opinion has a logical and defensible basis. The court must assess the competing risks and benefits in the clinical circumstances at the relevant time. A facility’s availability does not, by itself, make failure to use it negligent. Clinical judgment may reasonably support conservative treatment while the circumstances remain stable, but a previously defensible strategy may become negligent when material risks change. Where cumulative causes contribute to injury, a breach causing a non-negligible contribution may satisfy the material-contribution test.

The claimant, born prematurely in 1987, suffered cerebral palsy and associated disabilities following an intraventricular haemorrhage. He alleged negligent antenatal, labour and neonatal care by the defendant health authority, including failure to transfer his mother to a tertiary centre, failure to perform a caesarean section, and failure to provide earlier blood-gas testing.

The central issues were whether the treatment met the applicable standard of clinical care and whether any breach materially contributed to the claimant’s injury.

1. Clinical negligence. The court applied the principles in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, as qualified by Bolitho v City and Hackney Health Authority [1998] AC 232. A responsible professional practice must have a logical basis, particularly where it weighs risks against benefits.
2. Failure to transfer the mother to the tertiary centre was not negligent. The evidence showed that transfer before delivery could itself create risks, and the availability of superior facilities did not make local management negligent. The local referral arrangements and postnatal transfer system were an acceptable standard for the time.
3. The conservative approach on 6 February was a defensible clinical judgment. By the morning of 12 February, however, fulminating pre-eclampsia, established labour and pathological foetal heart abnormalities meant that the wait-and-see strategy was no longer reasonable. The failure to proceed to emergency caesarean section by 1315, or at the latest 1530, was a negligent breach of duty. Continued use and subsequent increase of syntocinon were inconsistent with the uterine hyperactivity and foetal distress shown.
4. There was no breach in failing to provide earlier blood-gas testing. The regional system of delivery at the district hospital followed by neonatal transfer represented a logical and reasonable arrangement by the standards of 1987.
5. On causation, the court adopted a robust and pragmatic approach to undisputed primary facts, drawing on Wilsher v Essex Area Health Authority [1988] AC 1074 and the material-contribution principle in Bonnington Castings v Wardlaw [1956] AC 613, as followed in Simmons v British Steel PLC [2004] ICR 585. The hypoxia caused by the breach was a cumulative, non-negligible contribution to the intraventricular haemorrhage and resulting disabilities.
6. Judgment was entered for the claimant, with damages to be assessed.