Ministry of Justice v Carter

In a clinical negligence claim, breach must be assessed by reference to the standard of the ordinary skilled practitioner, applying responsible professional practice and the logical-analysis safeguard in Bolitho [1988] AC 232. A court cannot substitute its own view that referral was easy or desirable. Where proper examination reveals no abnormality and responsible medical opinion treats specialist referral as discretionary, failure to refer does not become negligent merely because symptoms were reported repeatedly, concern persisted, or serious disease was later discovered. The assessment must be prospective and must take account of relevant professional guidance and clinical judgment.

The Ministry of Justice appealed from a judgment of Sir Christopher Holland in the High Court, handed down on 12 February 2010. The judge found that a prison doctor had breached her duty by failing to make a non-urgent breast-clinic referral after the claimant reported a breast lump for the third time, although the doctor had conducted a proper breast and axilla examination and detected no abnormality.

The appeal challenged the legal basis for that finding, together with aspects of the factual reasoning. The central issue was whether breach could be established where referral was not mandated by the relevant professional evidence and guidance. Causation and damages had not yet been determined.

Appeal allowed unanimously. Leveson LJ gave the leading judgment. Scott Baker and Smith LJJ agreed. The High Court’s factual findings, including that Dr Premaratne had conducted a careful breast and axilla examination and that no abnormality was detected, were open to the trial judge and were not disturbed.

1. In clinical negligence, the court had to apply the standard stated in Bolam [1957] 1 WLR 582, as qualified by Bolitho [1988] AC 232. A genuinely held professional opinion could be rejected only if it could not withstand logical analysis. Clinical risks and benefits normally required expert evidence.
2. The general-practitioner experts disagreed. Dr Cheng’s view was that referral was discretionary where no lump or other suspicious feature was found. That view was supported by the relevant guidance and referral pro-forma. The High Court neither rejected it as logically unsustainable nor adequately analysed the contrary material. Its finding that referral was not mandated was therefore fatal to the breach finding.
3. The judge was not entitled to replace the professional standard with his own assessment of persistent patient concern and the relative ease of arranging a routine referral. The later discovery that the concern was well founded was irrelevant to the prospective breach inquiry. Morris v West Hartlepool Steam Navigation [1956] A.C. 552 was distinguishable because it concerned an employment safety precaution, whereas clinical referral required clinical judgment.
4. The so-called Rule of 3 did not itself impose a duty to refer. Since examination disclosed no potentially sinister abnormality and no responsible professional standard required referral, negligence was not established. The appeal was allowed.

1. Court of Appeal (Civil Division): allowed the Ministry of Justice’s appeal and overturned the finding of breach of duty: [2010] EWCA Civ 694.
2. High Court of Justice, Queen’s Bench Division: Sir Christopher Holland found that the prison doctor was in breach of duty for failing to make a non-urgent breast-clinic referral after the claimant’s third presentation.