Once it has been established that a duty of care is owed by one person to another, the legal obligation is eponymous in nature: there is a duty to take care. The ‘standard of care’ is the name given to the legal test that determines whether that duty has been discharged in an adequate manner. Some refer to this middle prong in the elements that go to make up negligence as ‘breach of duty’, since if the defendant’s conduct falls below the standard of care required by law then she is said to have breached the duty to take care. The standard of care can thus be said to be the crux of negligence, as it is the part that concerns the actual behaviour of the defendant towards the claimant. Needless to say, how one person acts in relation to another – and indeed how the law allows people to act towards each other – has serious policy consequences that can be relevant to feminist discourse (Conaghan 1996b; Peppin 1996). Not least, in the professional setting, it can set the paradigms of the power in the relationship between service provider and the person seeking to access that service. Nowhere can this have more serious ramifications than in the provision of medical treatment, where a relationship that gives power to the professional at the expense of the patient means that the former may have effective control over the body of the latter. Furthermore, women have traditionally been under-represented in the upper echelons of the medical profession, so female doctors may feel that they are at a disadvantage with a legal definition that, as we shall see, defines reasonableness in the actions of a professional’s peer group. Thus women may find a lack of empathy from (mostly male) judges and (mostly male) senior doctors in their role as both doctor and patient.
This chapter considers feminist critiques of the law relating to the standard of care. More specifically, it will examine whether the problems identified within the legal system have been addressed by developments in the law, most notably in the case of Bolitho v City and Hackney Health Authority , which claim to ensure that it is less paternalistic and less deferential to professionals (Woolf 2000). In 1998, in an early collection in the Feminist Perspectives series, Sally Sheldon offered a searing critique of the relationship between the legal and medical professions (Sheldon 1998). Over a decade later, it certainly stands the test of time and remains a sharp diagnosis of what is wrong about the use of the law. Yet her chapter – just – predates the House of Lords’ decision in Bolitho and with it, if we are to believe the courts, a significant change to both the law and judicial philosophy. Post-Bolitho, we were told, there would there be excessive deference to doctors, and patients’ rights would be protected above medical discretion. Taking Sheldon’s and others’ arguments as its starting point, this chapter considers how and to what extent this change in attitudes has played out. How, if at all, has the relationship between the two professions changed? And what, if any, have been the benefits to women both within and as users of the medical profession?
It begins by examining the general rules relating to breach of duty, including those that apply to professionals in general and doctors in particular, before going onto focus on the criticisms of the law, and whether they remain valid. Nevertheless, at the outset it is important to note that, just because these issues are pertinent to feminists, it does not mean that they are necessarily limited to women. The power dynamic and the resulting harm applies to everyone regardless of sex. Indeed, the power given to the medical profession by the law should, in theory, provide that male patients will also have been the victims of paternalism by female doctors. However, as Joanne Conaghan notes, women are more at risk from such interactions:
The concept of gendered harm can also embrace those harms which, although not exclusive to women in any biological sense, are risks which women are more likely to incur than men – the risk of rape, incest, sexual harassment, spousal abuse or, more contentiously, the risk of harmful medical intervention.
(Conaghan 1996a: 407)
Thus, the fact that some of the cases involve male patients and/or female doctors does not detract from the main point. We begin, then, by examining how the law defines the standard of care.
Defining negligence and identifying some
conceptual problems – laypersons, professionals
The test for the standard of care is supposed to be objective (although, as we shall see, such claims are inherently problematic), and rely on the concept of ‘reasonableness’. In order to achieve the standard of care required by law, it is sufficient to show that the defendant has acted in a ‘reasonable’ fashion. Thus, the definition of the question of what is reasonable conduct becomes key. It is most clearly explained by McNair J in the case of Bolam v Friern Hospital Management Committee :
in an ordinary case which does not involve any special skill, negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or doing some act which in the circumstances a reasonable man would not do … How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man on the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man at the top of the Clapham omnibus.
(Bolam v Friern Hospital Management Committee : )
There are a number of things to note here. First, it encompasses both acts and omissions – a failure to do something that a reasonable person would do is just as ‘unreasonable’ as doing something that the reasonable person would not do. Secondly, the conduct is not so much evaluated on its own terms, but instead by reference to what others might have done. This, while perhaps justifiable in an objective test as an expression of socially agreed behavioural norms, inevitably translates into a question of what the judge or members of the jury might have done in the same situation (as they are all, surely, reasonable people). Finally, one cannot help but notice the gender-specific language – however predictable that might have been in 1957. Feminists and others have long noted that the ‘ordinary’ or ‘reasonable’ man test is far less objective than it claims to be.1 It is sufficient for the purposes of this chapter to note that it is not just the fact that the test ‘embodies a male point of view, thereby holding women to a standard which was devised without them in mind’ (Conaghan and Mansell 1999: 53). Instead:
[t]his charge of ‘maleness’ goes well beyond a dislike of the gender-specificity of the standard as traditionally expressed. It is rather a critique of the approach which … [it] represents … which assumes that behaviour can be fairly and objectively evaluated with only limited reference to the context within which it takes place and against a backdrop of abstract and incontrovertible principles which apply in all situations.
(Conaghan and Mansell, 1999: 53)
For this reason, it is an insufficient response to simply substitute the word ‘man’ for ‘person’ (Bender 1988: 22; Moran 2003). As Leslie Bender notes, the ‘legal world that generated the “reasonable man” was predominantly, if not wholly, male’, so even if referred to as the ‘reasonable person’ it still meant ‘person who is reasonable by my standards’ and therefore reflected a male perspective, or that of someone trained to think in this way (1988: 22–3). Thus, in a world where judges are still predominantly male (and from a certain social class), any test which invites him to assess ‘reasonableness’ will inevitably result in his own views and prejudices being applied. That will be the case whether the test is referred to as relating to the ‘reasonable man’, ‘reasonable person’ or even ‘reasonable woman’. It is also the reason that claims regarding the objectivity of the test cannot logically be supported.
The failings of the test – or, perhaps more specifically, the way that it is applied – can lead to inequity when the reasonableness or otherwise of the actions of groups other than white, middle-class males are considered. Moreover, the situation when this test is applied to professionals inevitably leads to unfairness. McNair J, continuing his description of the standard of care in Bolam, turned his attention towards those with a special skill:
where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not … is the standard of the ordinary skilled man exercising and professing to have that special skill … A man need not possess the highest skill at the risk of being found negligent … [I]t is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
(Bolam v Friern Hospital Management Committee : )
Of note here is the way in which the ‘reasonable’ man metamorphoses into the ‘ordinary’ professional. This is deeply problematic. As Kenneth Norrie highlights, the distinction between the two words is more than merely semantic. ‘Ordinariness’ is a descriptive concept – if all architects act in a certain way, then that is enough to satisfy a test of ‘ordinariness’ as it merely asks what architects do. ‘Reasonableness’, however, is normative. Just because all architects would act in a certain way, it does not prove that it is reasonable to do so (although it may be evidence of reasonableness). Rather, ‘[a] test of “reasonable care” necessarily carries with it a connotation which allows the court to say what ought to have been done in the circumstances’ (Norrie 1985: 148). Therefore, a test of ‘ordinariness’ effectively allows a profession to set its own standard of care, whereas a test of ‘reasonableness’ allows the court to retain ultimate control by reserving the right to classify conduct that it does not like (however ubiquitous) as ‘unreasonable’. This distinction is key when it comes to the actual operation of the test, which relies heavily on expert evidence in recognition of the fact that the judge is not, to continue our example, an architect.
The operation of the test therefore involves an expert ‘war’, with each side lining up its own experts to back their case. The question is whether (and, if so, how) the judge might choose between them if, as is common, both sides find support for their case. Bolam itself is somewhat unclear about this. McNair J said that the effect of the test was that:
[a] doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art … [equally] a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes the contrary view.
(Bolam v Friern Hospital Management Committee : )
Thus, what is key is that doctors escape liability by achieving the legal standard if they act in the same way that other doctors would act. The test can therefore be seen to privilege conformity to the professional standard, and obviously the role of expert witnesses cannot be overstated. If the witnesses constitute a ‘responsible body’ of medical practitioners, then the defendant is held to have acted reasonably.
But how might we determine whether the body is ‘reasonable’ in practical terms? Is the mere existence of medical evidence on behalf of the defendant sufficient? It is here that the law relating to doctors and other professions diverged for 40 years. Indeed, for all professions except the medical profession, the law was that although expert evidence constituted evidence of reasonableness, it was not conclusive proof. Thus, in the case of Edward Wong Finance Co Ltd v Johnson, Stokes and Master , the Privy Council held that the universal practice of conveyancers in Hong Kong – of the buyer handing over money to a solicitor in return for an undertaking to hand over the deeds – was unreasonable, as it obviously allowed a dishonest solicitor to abscond with the money. Moreover, this was not limited to the legal profession – the rule that the courts reserved the right to assess and, if necessary, reject the practices of a profession applied to all with one exception.
In the case of doctors, however, the law was applied differently. In the process, Bolam was transformed from a minor first instance direction to a jury to the most important case regarding the standard of care. For doctors, the mere existence of expert evidence on behalf of the defendant appeared to prove that the doctor had acted to the requisite standard of care. In Maynard v West Midlands Regional Health Authority , for example (decided by the House of Lords only a year after Edward Wong), the precise question for their Lordships was whether a judge was even permitted to find for the claimant where the defendant had provided experts to testify in her support. The trial judge had preferred the evidence of the claimant’s experts and found the doctor liable, and the appeal was based on whether he was entitled to do so. The House of Lords held, unanimously and categorically, that he should not have done so:
I have to say that a judge’s ‘preference’ for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, honestly expressed, honestly held, were not preferred. If this was the real reason for the judge’s finding, he erred in law … For in the realm of diagnosis and treatment, negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate specialty, if he be a specialist) is necessary.
(Maynard v West Midlands Regional Health Authority : , emphasis added)
What can be seen here is the privileging of the medical profession’s standards over the law’s duty and ability to provide oversight. Doctors, unlike other professionals, were able to set their own standard of care, and judges were not entitled to challenge them. Furthermore, the number of experts required to constitute a ‘responsible body of medical opinion’ was held to be extremely small – in the case of DeFreitas v O’Brien , for example, five out of 250 specialists were deemed enough. Essentially, there was a distinction between the medical and other professions based on different interpretations of how ‘reasonableness’ should be determined. For professions other than medicine, the concept of ‘reasonableness’ was defined and applied in a normative way – the courts, in Norrie’s words, looked at what ought to have been done. This involved the judge assessing the expert evidence and, if it made no sense, potentially rejecting it and finding for the claimant. With doctors, as Maynard demonstrates, ‘reasonableness’ was conflated with ‘ordinariness’ and interpreted descriptively, so the role of the court was little more than a rubber stamp that would merely check whether expert evidence for the defendant existed. If it did, then the doctor was deemed to have acted ‘reasonably’ whatever the circumstances and it was not open to a judge to find otherwise. Conformity would therefore be rewarded, and a lack of it punished.
And so it continued for 40 years, until the case of Bolitho, in 1997. In this case the House of Lords found that this restrictive application of Bolam was wrong, and that it was open to the courts to declare even the common practice of the medical profession to be unreasonable if it fails to exhibit logical force. The case is discussed in detail below. For present purposes the key point is this. Essentially, doctors were to be treated the same as other professionals, and according to the law as defined in Edward Wong.
But why were doctors for so long placed in such an exalted position by judges, and had separate rules to anyone else? In her seminal analysis of Bolam, Sheldon argues that the reason is the class, race and gender similarities within the legal and medical professions:
Why is it that judges prioritise one set of policy considerations to the complete occlusion of the others? I would argue that this is best understood within the context of class, race, and gender, where the judges naturally identify with the position of the doctor as a fellow professional. This is not surprising: judges and doctors share the same socio-economic space within society. Judges will probably have similar career aspirations and expectations to doctors and are likely to have family and friends who are doctors and thus should have a clear understanding of their concerns. What becomes clear on a close reading of these cases are the very different reactions to doctor and patient.
(Sheldon, 1998: 21)
The effect of this is an instinctive judicial empathy towards the doctor rather than the patient. The judge can perhaps see himself more as the dedicated professional making difficult decisions in difficult cases more than as a wronged party. Moreover, the medical profession has traditionally been – with the legal profession – amongst the most powerful in society. Thomas Szasz referred to the ‘church of medicine’ in the last century, arguing that it carried a level of social power analogous to that of the Christian church in the 16th century (Szasz 1979). What is undeniable is that, before Bolitho, doctors were treated differently from other professions in English law. That includes other prestigious professionals such as solicitors (see, for example, Edward Wong). Sheldon offers no explanation as to why doctors were held in such unique esteem, and it is difficult to divine why. It cannot be the mere scientific nature of medical practice, as this has not stopped the courts from imposing liability on, for example, architects and engineers (Yule 1996).
From a conceptual perspective also, the pre-Bolitho law’s claim to be an impartial definer of an objective concept of ‘reasonableness’ is less than convincing. What is ‘reasonable’ depends on the perspective of the person defining ‘reasonableness’ – which is of course a subjective calculation. Rather, there is much power at the hands of (predominantly male) judges, and when it is delegated it then resides in a (also predominantly male) medical profession. It is thus unsurprising that ‘reasonableness’ continues to be criticised by feminists. The inevitability of a ‘male’ application of the law means that the central tenet of the ‘reasonableness’ test – that it is an approach which ‘assumes that behaviour can be fairly and objectively evaluated with only limited reference to the context within which it takes place’ – cannot be supported (Conaghan and Mansell 1999: 53). Moreover, the test also encourages homogenous thinking, with difference punished. The danger is that in so far as female doctors take a different view on the appropriateness of treatments, particularly in the context of obstetrics, they – as well as female patients – will suffer in a male-dominated profession if they do not conform.2
Thus, despite the change in the law in Bolitho, it does not follow that women will be treated differently by the judiciary. If Sheldon’s identification of class, race and gender as factors in judicial deference to the medical profession is correct, then that deference is a reflection of judicial attitudes. Just because judges can challenge medical evidence, it does not mean that they will do so. Consequently, a change in the law will achieve little without a concurrent change in judicial attitude. The rest of this chapter will investigate whether Sheldon’s critique is therefore still valid, or whether Bolitho represents something of an empty gesture. It considers Sheldon’s critique of the pre-Bolitho law, and then continues by examining what effect Bolitho has had on her critique.
Sally Sheldon’s practical critique
Sheldon began by noting that Bolam