What is Duty of Care, and What Does it Mean to Breach It?

The UK is experiencing an infrastructural crisis like no other, as rising inflation and interest rates together exacerbate existing fault-lines in health and social care. The NHS was already struggling due to chronic underfunding, with the coronavirus pandemic adding significantly to strain on the service – but today, with ambulance wait times soaring and GPs inaccessible, ‘concern’ is the operative word.

One of the leading concerns relates to the falling standard of healthcare, as individual practitioners struggle to cope with rising demand and burdensome workloads. Both medical professionals and legal professionals have expressed fears over the growing epidemic of medical negligence cases. While many cases do not merit settlement, let alone make it to trial, there are still thousands of cases to resolve; in 2021-22, NHS Resolution spent £2.5 billion resolving over 16,000 claims.

For a medical negligence claim to be taken on merit, there are some key criteria it must meet – one of which relates to the core principle of duty of care. But what is it, and what exactly does it mean to breach it?

What is Duty of Care?

Duty of care describes the responsibility a medical professional takes over a given patient. In agreeing to treat or examine a patient, a medical professional agrees to do their utmost to secure the health and safety of said patient, and to act in their best interests.

Interestingly enough, duty of care is not a principle rooted specifically in medical law. Rather, the principle emerged from retail and commerce – specifically, a 1932 case in which a poorly-produced batch of ginger beer led to serious illness in at least one consumer. A legal precedent was set to hold individuals responsible for the health and safety of others.

Breach of Duty

Medical negligence claims are predicated on the essential notion that a professional has failed in their duty of care to a patient. This breach is known as ‘dereliction’ in legal circles. But how can you ascertain that a doctor has breached their duty of care?

First, it needs to be established that duty of care was adopted to begin with – simple enough with doctor’s notes and medical records. Next, it needs to be established that the professional worked in such a way – whether purposefully or negligently – that the patient came to unnecessary harm.

The specifics of dereliction differ from case to case, but common examples might include the failure to diagnose a condition, or the failure to prescribe the right medicine. In some cases, the dereliction might involve complications during surgery.

The Average Claim

Medical negligence claims vary widely in scope and subject, but commonly relate to neo-natal practice. The average amount of compensation to which a negligence claimant might be eligible could be somewhere in the region of £50,000 including legal fees – but compensation values change depending on the severity of injury as a result of dereliction. Not only this, but the government is working to cap legal fees for negligence claims, in order to further lighten loads on the NHS.