The Standard of Care in Medical Negligence – Still Reasonably Troublesome?

Abstract

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.