Radiography (2008) 14, e33ee38

ava i lab le at www.sc ienced i rec t . com

journa l homepage : www.e lsev ie r . com/ loca te / rad i

Legal issues of extended practice: Where doesthe responsibility lie?

Susan J. Buttress a,*, Tim Marangon b,c

a MSc Professional Development, School of Healthcare Professions, University of Salford,Frederick Road, Salford M6 6PU, UKb Programme Leader MA Healthcare Law/LLB Health Law, Salford Law School, Lady Hale Building,University of Salford, M5 4WT, UK

Received 12 June 2008; revised 16 September 2008; accepted 26 September 2008Available online 2 November 2008

KEYWORDSExtended role;Legal implications;clinical guidelines;Health policy drivers

* Corresponding author. Tel.: þ44 16E-mail address: s.buttress@salford

c Tel.: þ44 161 295 6342.

1078-8174/$ - see front matter ª 200doi:10.1016/j.radi.2008.09.002

Abstract The development of new roles in healthcare has been developing rapidly since evenbefore the publication of the NHS Plan in 2000. The driving forces have encouraged the blurringof traditional professional role boundaries and the development of extended roles in practice inwhich health professionals have adopted tasks out of their normal scope of practice. This paperexamines the legal implications of such actions and highlights the importance of recognising thelegal responsibility of taking on tasks beyond their recognised role. The case law applicable tothis area is discussed and applied to clinical negligence cases that could arise from practice thatis beyond the scope of professionals within their field and appropriate conclusions are drawn.ª 2008 The College of Radiographers. Published by Elsevier Ltd. All rights reserved.

Introduction

As is often the case in any presentations involving lawyers, thispaper begins with a disclaimer. It is not really intended toprovide a comprehensive discussion of the principles governingclinical negligence claims, nor is it intended to give a definitivepicture of how the courts will deal with practitioners who haveextended roles. Indeed it appears from our research that wehave no firm indication as yet from the courts as to how theywill deal with negligence claims involving such practitioners.

What is provided, however, is a brief overview of therelevant law that applies in this area and perhaps some

1 295 00332..ac.uk (S.J. Buttress).

8 The College of Radiographers. P

useful pointers about some common sense steps thatpractitioners with extended roles can take to avoid liability.Bearing in mind the disclaimer and the relatively limitedscope of this talk, practitioners are advised to seek legaladvice from their trust or privately where situations ofa legal nature arise.

A bit of history

In July 2000 the Labour Government set out their vision fora new National Health Service (NHS) in their White PaperThe NHS: A Plan for Investment, a Plan for Reform.1

Amongst other things, the White Paper proposed a dramaticrevamping of the way its staff worked.

The plan was to allow nurses and other staff a greateropportunity to extend their roles beyond traditional

ublished by Elsevier Ltd. All rights reserved.

e34 S.J. Buttress, T. Marangon

boundaries with a view to make the provision of healthcaremore effective and patient-centred. As was noted at thetime:

‘‘This is not a question of staff working harder. It isabout working smarter to make maximum use of thetalents of all the NHS workforce.’’.1 ( p. 82)

This goal was reiterated in a subsequent White PaperDelivering the NHS Plan: Next Steps on Investment, NextSteps on Reform2 and the limitations of the working practicesadopted by the NHS at that time were roundly condemned as‘‘overly demarcated and inflexible’’.2

It was clear, however, from the White Paper Deliveringthe NHS Plan that the process of change envisaged in TheNHS Plan was already underway with the documentreporting such key successes as the enhancement of theroles of therapists and nurses through the creation of newconsultant posts and the creation of new powers toprescribe drugs and treat patients as well as an increase inthe availability of staff development opportunities.2

Radiographers were not left untouched by these devel-opments. In June 2003 the Department of Health publishedRadiography Skills Mix: A Report on the Four-Tier ServiceDelivery Model3 which reported on the national Radiog-raphy Skills Mix project. The project was, of course,initially designed to look at ways to deal with critical issuesin radiography such as a world shortage in radiographersand a need to meet growing public expectations and evermore stringent government targets.

The proposed method for dealing with the many chal-lenges facing radiographers was to introduce a four-tieredservice delivery model in which advanced practitionerswere to play a key role. Whilst this new model for servicedelivery was initially piloted solely in breast screening, itwas soon extended to encompass radiotherapy and clinicalimaging.4

Whilst the extension of the roles of such a large volumeof staff within the health service may have gone some waytowards providing the more efficient and flexible deliveryenvisioned by the NHS Plan it has also, however, given riseto some interesting questions about the liability of suchpractitioners. It is to that issue that we now turn ourattention.

Clinical negligence claims: The law

It is a well established principle of law that a person seekingto succeed in any negligence claim (not just clinical negli-gence claims) has to establish (1) that the defendant owedhim a duty of care, (2) that he was in breach of that dutyand (3) that the harm of which the victim complains wascaused by that breach of duty. All three elements of thistest must be satisfied for the claimant to succeed.5

The duty of care issue is rarely controversial in clinicalnegligence claims since it is generally accepted thata healthcare practitioner owes a duty of care to anybodythey treat.6 The agreement to treat the patient gives rise toan undertaking to care for the patient, a principle which iswell illustrated in the case of Barnett v Chelsea and Ken-sington Hospital Management Committee [1969] 1 QB 428.In that case the defendant hospital ran an Accident and

Emergency (A&E) department. The court held that thedefendant owed a duty of care to anyone who camethrough the doors of the A&E department and presentedthemselves for treatment.

A neat illustration of this principle in action would be thefollowing straightforward example. A GP is enjoying a mealin a local restaurant and a fellow diner starts choking ontheir main course. The GP can see that this diner is introuble, but is the GP obliged to go to the diner’s aid?

It may surprise some of you to learn that the GP in thisexample is under no legal obligation7 to play the role of the‘‘good Samaritan’’ and save the choking diner. Providingthe GP takes no steps to assist the diner no duty of carearises because there is no undertaking to care for him.

If, on the other hand, our GP does the noble thing andsteps in to assist our troubled friend then this amounts to anundertaking to care for them and the GP will immediatelybe placed under a duty of care to the diner.

Although the duty of care issue contained in the firstlimb of the negligence test outlined above is relativelyuncontroversial, the same cannot necessarily be said forthe second limb of the test.

In order for the court to decide whether the defendanthas breached their duty of care, the court will ask whatstandard of care the defendant should have been expectedto reach in the circumstances. If the defendant meets orexceeds the requisite standard of care then they will bedeemed to have fulfilled the duty of care they owed to theclaimant and the court will find that the defendant was notnegligent. If, on the other hand, the defendant fails tomeet the requisite standard of care, they will be deemednot to have fulfilled the duty of care they owed theclaimant and the court will find that the defendant wasnegligent.

The concept of the standard of care can therefore beviewed as a yardstick against which the defendant’sconduct will be ‘measured’. There is, of course, onefundamental question that needs to be addressed beforewe can continue our discussion, namely how do the courtsset the standard of care that the defendant’s conduct willbe measured against?

In the case of an individual who possesses some specialskill or knowledge (such as a healthcare professional), thecourt used to set the standard of care required of thedefendant by making reference to the ‘Bolam test’ whichcomes from the case of Bolam v Friern Hospital Manage-ment Committee.8

In that case, Mr Justice McNair said that the standard ofcare expected of the defendant in cases where thedefendant possesses some special skill or knowledge was tobe set by asking what an ‘‘ordinary competent man’’carrying out the same task as the defendant would havedone in the circumstances.8 Mr Justice McNair thereforegoes on to say that a defendant will not be deemed to havebreached their duty of care if they have ‘‘acted in accor-dance with a practice accepted as proper by a responsiblebody of . men skilled in that particular art’’.8

Although seemingly straightforward, the Bolam testproved to be a minefield for claimants in negligence claimsbrought against professionals. Perhaps the biggest problemcreated by the Bolam test is commented upon byMontgomery who notes:

Legal issues of extended practice e35

‘‘The essence of the Bolam test is that professionals areto be judged against the standards of their peers. Theywill win a negligence action if the experts from theirprofession who are called to give evidence are preparedto accept that their actions were proper. That does notmean that the experts would have done the same, butthey regard the defendant’s actions as within the rangeof acceptable practice. This means the minimal level ofacceptable practice, not what they would like to haveseen happen’’.9

The problem highlighted by Montgomery was furtherexacerbated by Lord Justice McNair’s subsequent statementin Bolam that a defendant could not be found to be negligentif he had expert evidence which agreed he had ‘‘acted inaccordance with a practice accepted as proper by a respon-sible body of . men skilled in that particular art’’ merelybecause ‘‘there is a body of opinion who would takea contrary view’’.9 This statement was mirrored by LordScarman in the case of Maynard v West Midlands RegionalHealth Authority10 who said ‘‘It is not enough to show thatthere is a body of competent professional opinion whichconsidered that [the defendant’s decision] was a wrongdecision, if there also exists a body of professional opinion,equally competent, which supports the decision as reason-able in the circumstances.’’

This effectively put the defendant in clinical negligenceclaims into a virtually unassailable position. Providing thatthe defendant could find an expert witness to testify thatthere was a responsible body of opinion which supportedthe defendant’s actions, the defendant would be successfulin defending the claim against them. This was the case evenif the claimant could find an expert to testify that there wasan equally strong body of opinion that would not agree withcourse of action the defendant embarked upon, a factwhich prompted Brazier to comment:

‘‘The key to successfully defending a claim in negligencewas to find expert witnesses who would be impressive inthe witness box’’.5

Consequently the Bolam test effectively placed thepower to set the standard of care required of the defendantinto the hands of the defendant’s peers and not into thoseof the court. As Lord Scarman in Sidaway v Governors ofBethlem Royal Hospital commented:

‘‘.the law imposes the duty of care, but the standard ofcare is a matter of medical judgement’’.11

It was in light of this and many other criticisms levelledat the Bolam test12 that the House of Lords revisited it inthe case of Bolitho v City and Hackney Health Authority.13

The House of Lords held in that case that it was no longerenough for the defendant to show that there wasa responsible body of professional opinion which supportedtheir conduct in the circumstances. Following the decisionin Bolitho the defendant also had to show that this body ofopinion was reasonably held. According to the House ofLords in this case, the body of opinion put forward had to becapable of withstanding ‘‘logical analysis’’ otherwise thedefendant’s case would fail.

In simple terms, what the House of Lords appeared tosuggest in Bolitho was that they were going to take a more

critical view of the practices of professionals. We havealready seen in our discussion of Bolam that it was seem-ingly enough for the defendant to show that there wasa body of opinion that supported their practice in order forthem to avoid a claim in negligence. According to the Houseof Lords in Bolitho, however, the mere fact that sucha body of opinion existed would no longer be conclusive insettling the issue.

The decision in Bolitho almost seems to add a secondlimb to the Bolam test. The defendant will still have toshow that their actions in the circumstances would havebeen ‘‘accepted as proper by a responsible body of . menskilled in that particular art’’.8 However, the defendantwould then have to go on to show that in developing thisparticular practice they had ‘‘directed their minds to thequestion of comparative risks and benefits and had reacheda defensible conclusion on the matter’’.9

At first sight, it appears that the House of Lords inBolitho had succeeded in bringing the power to set thestandard of care back into the hands of the court. Conse-quently it might be though that it would be more likely thata professional would be found to have been negligent. Inreality, however, it seems that the impact of Bolitho in thisregard has been minimal. Indeed, in the case of Bolithoitself Lord Browne-Wilkinson stated that ‘‘it will veryseldom be right for a judge to reach the conclusion thatviews genuinely held by a competent medical expert areunreasonable’’.13

Brazier cite the research of MacClean14 who found thatthe decision in Bolitho was only mentioned in 29 out of the64 clinical negligence claims heard post Bolitho (but before2001) The decision in Marriott v West Midlands RegionalHealth Authority15 is one of those rare cases where thecourts have held that the body of opinion put forward bythe defendant to support their conduct was not deemedcapable of withstanding logical scrutiny. The judge in thatcase held it was unreasonable for the doctor to fail to refera patient who had suffered a head injury on to a hospitalgiven the risk of them suffering from a blood clot on thebrain and the severe nature of the possible consequences ofsuch a condition

One interesting issue that has come to the fore recentlyarising out of the decision in Bolitho is the role that clinicalguidelines have to play in setting the standard of careexpected of the defendant. We have already seen in ourearlier discussion that the evidence advanced by thedefendant in support of their conduct must be capable ofwithstanding logical scrutiny.

We have also seen that when judges are considering thisissue they will be looking to see whether the defendant hadweighed up all the potential risks and benefits of theavailable courses of action and had used this assessment asthe basis for reaching a defensible conclusion that thecourse of action they embarked upon was a reasonableoption. It is this element of the Bolitho test that may bringclinical guidelines into play.

In their article ‘The role of clinical guidelines in medicalnegligence litigation: a shift from the Bolam standard?’’Samanta et al.16 point out that clinical guidelines will bebased on scientific evidence and risk/benefit analyses.

Consequently, the authors claim that acting in compli-ance with relevant guidelines will ensure that the

e36 S.J. Buttress, T. Marangon

defendant’s practice is capable of fulfilling the require-ments of Bolitho. Conversely a failure to follow practicerecommended by the guidelines may be indicative ofa failure to adopt a reasoned approach to selecting a courseof action which may fall foul of the requirements ofBolitho. As Samanta and Samanta note in a later article:

‘‘practitioners should be able to account for why theychoose to [deviate from] guidance that is endorsed byprofessionally recognised bodies’’.17

An inability to provide such a justification may beindicative of a practice which is not capable of with-standing logical analysis.

A vivid illustration of this is provided by the case ofFotedar v St George’s Healthcare NHS Trust [2005] EWHC1327, cited in Samanta and Samanta (2007).17 The defen-dants in this case were found to be liable in negligence fordamage suffered by the claimant child during birth. Thedefendants had carried out a procedure that was contraryto recommendations contained in guidelines issued aroundthat time by the Royal College of Gynaecologists andObstetricians. Furthermore, the defendant’s practice hadalso gone against the hospital’s own guidelines on whatwould and would not be viewed as acceptable practice inthe circumstances. In relation to the defendant’s failure tofollow the guidelines issued by the Royal College ofGynaecologists and Obstetricians Mr Justice Gray said:

‘‘[The guidelines] are in my judgement a clear andauthoritative indication that to attempt [the procedurecarried out by the defendants] was not at the time of[the claimant’s] birth acceptable practice’’.18

This would appear, therefore, to be a clear indicationthat the failure to follow both external and internalguidelines was a decisive factor in leading the judge toconclude that the defendant had failed to meet therequisite standard of care.

The increasing importance of clinical guidelines in clin-ical negligence claims is further evidenced by empirical datawhich appears to show that lawyers (this umbrella termincludes barristers and solicitors) are using guidelines inclinical negligence claims. The guidelines are normallyreferred to in the reports of expert witnesses and are used byboth claimants and defendants to support their cases. Thesame data also appears to show that there is a belief in thelegal profession that, at least in some cases, the use ofguidelines has influenced the final decision of the court andthat their use in clinical negligence claims is likely to grow.16

It should not be thought, however, Samanta andSamanta17 are advocating rigid adherence to guidelines asa sure-fire way to avoid clinical negligence claims. This isfor two reasons, which we will examine briefly.

The first problem with guidelines is the large volume ofguidelines in existence, some of which may be of dubiousquality. A set of guidelines is only as good as the evidencethe recommendations are based on. As some studiesunderpinning the guidelines may be of very variable designand quality it is clear that the quality of some guidelinesmay also be variable.

If we accept that some of the guidelines in existencemay not have been devised on the basis of the sort ofthorough reasoned risk/benefit analysis required by Bolitho

then uncritical compliance with such guidelines may resultin a finding that the defendant has not met the requisitestandard of care

A further problem with guidelines is that they aim toprovide general guidance for the practitioner. Not all casesdealt with by the extended practitioner, however, willnecessarily be ‘standard cases’ and adherence to theguidance in such cases may be inappropriate at best or,worst still, may lead to an exacerbation of the problem.Slavish adherence to guidelines without giving consider-ation to their appropriateness to the situation in hand,therefore, is not advised.

The observations made in the previous two paragraphsmake perfect sense when considered in the light of thedecision in Bolitho. The defendant is required to show thatthey reached a reasoned decision about the best course ofaction to embark upon in any given situation. A rigidadherence to the guidelines without considering either theacademic rigour of the evidence which underpins them ortheir appropriateness to the particular situation is notindicative of reasoned analysis, indeed at worst it could betaken as a failure to reason at all.

Of course, if you do make the decision to depart fromstandard practice, you must be able to justify such a deci-sion. This will include explaining why it was inappropriateto follow standard procedure in this particular case, as seenin the decision in Clark v MacLennan [1983].19

We should, by now, all be in a position where we arecomfortable with the basics of how the courts set thestandard of care expected of a defendant in a clinicalnegligence claim. From here we can now move on toconsider the potential complications that may arise ina claim made against a practitioner with an extended role.

Clinical negligence claims in context: Thestandard of care expected of practitionerswith extended roles

Setting the standard of care expected of the defendant inthe context of claims involving Practitioners who haveextended roles may potentially be problematic.

The standard of care expected of a healthcare profes-sional in clinical negligence claims is a benchmark stan-dard; that is to say the bare minimum standard of conductthat the defendant will be expected to reach in order todefend a claim in negligence.

Our earlier discussions have shown that the standard ofcare expected of a defendant in a clinical negligence claimis generally determined by reference to how the defend-ant’s peers (that is to say individuals in the same role as thedefendant) would have acted in the same circumstances. Ifthe defendant’s conduct is deemed acceptable by his peersand is deemed by the courts to be a logical course of actionin the circumstances, then the defendant will avoid liabilityin negligence.

This is where the problem arises in the context of claimsagainst those with extended roles. The question that arisesis, when we are setting the standard of care expected ofsuch a defendant, whose conduct should be viewed as thebenchmark standard against which the defendant’s conductwill be judged?

Legal issues of extended practice e37

Looking at the same question within the context ofa specific everyday example, we might ask whether theextended practitioner who carries out minor surgicalprocedures is to be judged against the standard of careexpected of a fully qualified surgeon or are they to be judgeagainst the standards of a fellow extended practitioner whocarries out similar tasks.

This is a difficult question to answer with any degree ofcertainty. On the one hand we might take the view thatsuch a defendant should be viewed as an ‘inexperiencedsurgeon’ and subsequently we should expect a lower stan-dard of care expected of them.

Such an approach, however, appears to go againstestablished case law which suggests that a defendant’sinexperience is irrelevant when setting the standard ofcare.20 Furthermore, there is additional case law whichsuggests that a defendant who holds themselves out aspossessing a particular level of skill and knowledge mustactually reach that standard or be found to have breachedthe duty of care owed to the patient.21

On the other hand, we could argue that expecting thedefendant extended practitioner to meet the standard ofcare of a fully qualified surgeon is expecting too muchof the defendant. In the case of Sidaway v Governors ofBethlem Royal Hospital,22 for example, Lord Bridge stated:

‘‘The language of the Bolam test clearly requiresa different degree of skill from a specialist in his ownfield as from a general practitioner’’.

It is at least possible, therefore, that a court followingthis approach would not expect the extended practitionerin our hypothetical example to meet the standard of care ofthe fully qualified surgeon, but rather a lower standard;probably the standard of the reasonably competentextended practitioner who performs the same proceduresas our defendant. This does not, however, particularly helpus draw any firm conclusions about the standard of care tobe expected of the defendant extended practitioner.

Some firmer guidance is to be found, however, in thework of Dimond writing in the context of nurses withextended roles.23 Dimond states unequivocally:

‘‘It has been emphasised that when a clinical nursespecialist or consultant nurse takes on an expanded rolethey must provide the same standard of care whichwould have been provided by the health professionalwho would originally have performed that activity’’.23

Similarly, Jackson notes:

‘‘If a GP were to attempt a specialist procedure, such asanaesthesia, she would be judged by the standard ofa reasonable anaesthetist’’.24

Both views would suggest that the approach advocatedin R v Bateman noted earlier will be followed. In that caseLord Chief Justice Hewart stated:

‘‘If a person holds himself out as possessing special skilland knowledge, by and on behalf of a patient, he owesa duty to the patient to use due caution in undertakingthe treatment. If he accepts the responsibility andundertakes the treatment and the patient submits to hisdirection and treatment accordingly, he owes a duty to

the patient to use diligence, care, knowledge, skill andcaution in administering the treatment’’.21

Consequently it would seem that if the practitioner inour earlier example had held themselves out as having thenecessary skills required to carry out the surgical procedurethen the practitioner will be expected to meet the standardof care of the reasonably competent surgeon.

The standard of care expected of practitionerswith extended roles: Mitigatingthe harshness of the law

By this stage we have examined the rules governing how thecourts set the standard of care expected of healthcareprofessionals in clinical negligence claims generally. Wehave also considered the difficulties of determining thestandard of care expected of those practitioners withextended roles and reached the conclusion that the courtswill expect the practitioner to reach, what may appear tosome to be, an unfairly high standard of care.

The first point to note, that may provide a degree ofconsolation to the defendant extended practitioner in ourearlier scenario is that they are not expected to reach thestandard of care of an expert surgeon, rather they aremerely expected to meet the standard of the ‘‘reasonablycompetent’’ surgeon as outlined in our earlier discussion ofthe Bolam test. Indeed, in the case of R v Bateman itself,Lord Chief Justice Hewart went on to say:

‘‘The jury should not exact the highest, or a very high,standard, nor should they be content with a very lowstandard. The law requires a fair and reasonable stan-dard of care and competence’’.

Furthermore, our reading around the subject (and a bitof lateral thinking and commonsense) has also revealeda number of practical steps that the practitioner with anextended role can take to try and ensure that they meetthe standard of care required of them in their extendedrole.

The first piece of advice is based on the decision in thecase of Wilsher v Essex AHA.20 The defendants in that casewere junior doctors who mistakenly inserted a catheter,through which oxygen was going to be administered, intoa vein rather than an artery. The doctors failed to noticethis mistake, but most importantly, the senior registrarchecking their work also failed to notice their error.

The Court of Appeal pointed out in this case that inex-perience of the junior doctors was irrelevant in setting thestandard of care expected of them, but the potentialharshness of this statement was mitigated by a furtherdeclaration that the junior doctors could have met thestandard of care required of them by getting a moreexperienced colleague to check their work. Since the juniordoctors took this step it was the senior registrar and not thejunior doctors who were found to be negligent for failing tospot the mistake.

The case of Wilsher often cited as authority for theproposition that the defendant’s inexperience will beirrelevant when it comes to setting the standard of carerequired of them, but there is a further point to be taken

e38 S.J. Buttress, T. Marangon

from this case, namely that all healthcare professionalsshould be aware of their limitations.

What we mean by this is that the practitioner should beaware of the limits of their competence and ensure that theyonly ever act within the scope of this competence. If thepractitioner undertakes to carry out a procedure that isoutside of their sphere of competence we have already seenthat this amounts to an undertaking to the patient that theycan perform this procedure and the practitioner will beplaced under a duty of care to perform that procedure withskill and care. Such an action may not only lead to a breach ofa civil law duty of care owed to the patient, but may alsoamount to a breach of the practitioner’s professional duties.For example The NMC Code of Professional Conduct whichstates that a nurse is obliged to seek additional help froma competent practitioner where they have to embark ona practice which is ‘‘beyond ‘their’ level of competence oroutside [their] area of registration’’.

If the practitioner in question is unsure for exampleabout how to perform a particular technique or about theappropriateness of a particular procedure in the circum-stances, they should consult a more experienced colleagueor a colleague with particular expertise. As we have seenfrom the decision in Wilsher this may well be enough forthe defendant to discharge their duty of care.20 This willparticularly be the case where the instructions given areunusual or blatantly wrong.9

The danger of holding yourself out as being competentto perform a particular skill when that is not, in fact, thecase, should therefore be obvious. Indeed, Montgomerypoints to the case of Defreitas v O’Brien25 as authority forthe proposition that:

‘‘it would be negligent for a general practitioner toperform a medical procedure which should only beattempted by a specialist in a particular field’.

In the case of any practitioner who is performing anextended role, therefore, there is a great deal of sense inthat practitioner start by taking the time to assess the skillsrequired to carry out a particular task. The practitionershould then reflect upon the skills they possess and make anhonest appraisal about whether they possess the necessaryskills, or whether the skills they possess are sufficientlydeveloped. Finally, if the practitioner identifies shortcom-ings between the skills they need and the skills they actuallypossess then they should either refrain from carrying out theprocedure in question altogether until they have obtainedadequate training, or at the very least they should onlyperform the procedure under the careful supervision ofa more experienced colleague. In that way the practitionerwould be able to demonstrate that they had taken reason-able steps to discharge the duty of care owed by them.

Conclusions

This brings us to the end of our discussion of this issue. Wehave seen how the courts set the standard of care expectedof a healthcare professional and we have considered howthe requirements of Bolam and Bolitho might be met if thepractitioner can demonstrate that they had complied withrelevant clinical guidelines. We have also specifically drawnyour attention, however, to the fact that rigid compliance

to the guidelines without consideration of their reliabilityor suitability to the situation may not be enough to meetthe required standard of care.

We have also seen that the question of what standard ofcare will be expected of a practitioner with an extended rolecould, potentially, be seen as a little harsh as it requires thepractitioner with an extended role to meet the standard ofcare of the person who would normally carry out that role.

In view of the potential harshness that this rule mayseem to create we concluded by considering practical stepsthat the extended practitioner could take to show that therequisite standard of care has been reached. Being awareof the limitations of their knowledge/skills and beingprepared to ask a senior/expert colleague for help areseemingly simple matters for the practitioner to get to gripswith, yet they could potentially have a major impact on anindividual’s liability in any clinical negligence claim.

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18. Fotedar v St George’s Healthcare NHS Trust [2005] EWHC 1327.19. Clark v MacLennan [1983] 1 All ER 416.20. Wilsher v Essex AHA [1987] QB 730.21. R v Bateman. Criminal Appeal Reports 1925;19:8.22. SidawayvGovernorsofBethlemRoyalHospital [1985]1All ER1018.23. Dimond B. Legal Aspects of Nursing. 4th ed. Pearson; 2005.24. Jackson E. Medical law: text cases and materials. Oxford:

Oxford University Press; 2006. p. 122.25. Defreitas v O’Brien. Medical Law Reports 1993;4:281.