Law, ethics, and the duty of careBMJ 2012; 345 doi: https://doi.org/10.1136/bmj.e6804 (Published 10 October 2012) Cite this as: BMJ 2012;345:e6804
- Daniel K Sokol, barrister and honorary senior lecturer in medical ethics at Imperial College London
One word that strikes fear in doctors is “negligence.” When I visit hospitals in the United Kingdom, I enter safe in the knowledge that no patient will sue me, even if one collapsed before my eyes. I have no duty of care to patients, and without such a duty there can be no negligence. Doctors, however, have a duty of care to their patients, and hence it is unusual, in a clinical negligence case, for the issue to be in dispute.
Stepping outside the hospital, must doctors stop by the roadside to assist a person in distress or respond to the dreaded call, “Is there a doctor on the plane?” If they do assist, they acquire a duty of care. The person becomes their patient. But should they help in the first place?
This is where law and ethics part ways. In UK law a passing doctor has no legal obligation to assist a person in distress. However, the General Medical Council’s Good Medical Practice states: “In an emergency, wherever it arises, you must offer assistance, taking account of your own safety, your competence, and the availability of other options for care.”1 Hence the non-assisting doctor may dodge the sharp horn of the law but still be impaled by that of the GMC. In this respect the GMC expects a higher standard of ethics than that required by the law.
Traditional medical ethics, in normal circumstances, would also condemn the doctor who ignored the call for help. In Law and Ethics for Doctors (1958), Stephen Hadfield affirms that “a doctor must give necessary treatment in an emergency unless he is assured that it can and will be given by another.”2 The ethos of the physician is rooted in the benevolent desire to assist people in medical need. That is the raison d’être of the doctor. In the language of virtues, the doctor who ignores a cry for help may display selfishness and cowardice and lack the virtues of benevolence and compassion.
The existence of a duty of care is generally straightforward in the case of doctors and their patients, but what if the patient, through the doctor’s negligence, injures a third party? A doctor may give negligent advice to a patient with an infectious disease, who then goes on to infect another. Or the doctor may deem a patient fit to drive, only to discover weeks later that the patient has had a seizure at the wheel and injured another driver. And what about the doctor who fails to section a psychiatric patient who proceeds to assault a passer-by? Can the victims sue the doctor (or, by virtue of “vicarious liability,” the doctor’s employer)?
Several UK cases have shed light on the scope of the duty of care. In Goodwill v British Pregnancy Advisory Service, the defendants told a vasectomy patient that there was no need to use contraception.3 About three years later the patient began a sexual relationship with a woman. She fell pregnant, gave birth to a healthy girl, and sued the defendants for the expenses of the birth, the costs of bringing up her daughter, and the loss of income resulting from her reduced working hours. The Court of Appeal held that the defendants owed no duty of care to the woman. Lord Justice Gibson wrote: “The defendants were not in a sufficient or any special relationship with the plaintiff [that is, the woman]. At that time they had no knowledge of her, she was not an existing sexual partner of [the vasectomy patient] but was merely, like any other woman in the world, a potential future sexual partner of his, that is to say a member of an indeterminately large class of females who might have sexual relations with [the vasectomy patient] during his lifetime.”
In Palmer v Tees Health Authority, doctors discharged a psychiatric patient who went on to murder a 4 year old child.4 The child’s mother sued the health authority on the grounds that those responsible for the murderer’s care had failed to recognise and to act on the patient’s real risk of harm to children. Again the Court of Appeal found that the health authority had no duty of care towards the murdered child, as there was insufficient proximity between the defendant and the child.
The test for the existence of a duty of care is found in the seminal case of Caparo v Dickman.5 It is summarised neatly by Lord Justice Steyn in Elguzouli-Daf v Commissioner of Police of the Metropolis: “We must consider the ultimate question from three perspectives, namely (a) foreseeability of the harm that ensues, (b) the nature of the relationship between the parties, usually called the element of proximity, and (c) the question whether it is fair, just and reasonable that the law should impose a duty of care.”6
The test aims to keep the law of negligence within the bounds of reason. “Fair,” “just,” and “reasonable” are hardly measurable, scientific notions. They involve value judgments. In my experience many medical students believe that the law, unlike ethics, always yields a clear answer. The cases on duty of care prove otherwise. The law can be just as messy as ethics, but at the end of the day judges must commit to a decision.
Cite this as: BMJ 2012;345:e6804