Conclusions
Overall the question of professional negligence is problematic because, to a certain degree, each profession sets its own standards and may to that extent be considered "self-regulating". The arguments are complex. The difficulty for the law is to strike a balance between the interests of the professionals and those who rely on them. There is a form of legal pendulum that can swing either way depending on the policy issues involved but this is sometimes of little comfort to those who feel that they have not found justice in the legal system. In cases such as Whitehouse v Jordan the court holds that the doctor was not at fault because he did what other doctors might have done in the same circumstances. Thus, the claimant was brain damaged and that damage was caused by what the doctor did, but the doctor was not legally at fault. In one sense, this may be considered fair to the doctor who did exactly what many other doctors would have done. But the baby's brain damage is just as bad no matter what the cause of it, and it seems unfair that the difference between obtaining damage and being denied any remedy should depend on the court's application of negligence. Many use this type of case to argue in favour of a system of no-fault compensation such as that introduced in New Zealand in 1972. The question of no-fault compensation in the UK was considered by the Royal Commission on Civil Liability and Compensation for Personal Injury (the Pearson Commission), which reported in 1978. Although the Report was critical of the existing system, its terms of reference prevented it from recommending a comprehensive no-fault scheme. Instead it recommended an extension of the existing social security scheme to give greater assistance to victims of industrial injuries and to include the victims of road accidents. The possible extension of misfeasance in public office to include situations in which potentially dangerous individuals are released into the community complicates the duties of the professions involved. Given that medical professionals are already held out as having more reliable diagnostic and treatment skills, any obvious indifference as to whether those released will cause problems may expose the professionals to a new source of liability (see Mason and Laurie: 2003).
Read more about this topic: Bolam V Friern Hospital Management Committee
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