What is the Difference Between the Legal Test for Medical Negligence in Northern Ireland and the Republic of Ireland?
The legal systems in the Republic of Ireland and Northern Ireland share many similarities. One key difference which is important to consider for people living in each jurisdiction is the distinction between the legal test for establishing medical negligence.
Having a general awareness of both legal tests is important not only for medical professionals and lawyers, but also for the general public; particularly those who avail of cross border medical treatment.
The Test in Northern Ireland
The test for medical negligence in the UK has evolved over the last 64 years since the Judgment in the case of Bolam v Friern Hospital Management Committee (1957) which set out that a doctor is not negligent if they have acted within what would be considered a responsible body of medical opinion.
The scope of the ‘Bolam’ test was then narrowed by the House of Lords Judgment in Bolitho v City & Hackney Health Authority  which stated that the body of opinion relied upon must have a logical basis. This Judgment established the rule that in a case where a particular course of action was found to be within a ‘reasonable body of medical opinion’, it would be very rare for a Court to determine that a medical professional has acted negligently.
In summary, the Bolam & Bolitho test for negligence requires that a medical professional has acted below a standard which would be deemed acceptable by a reasonable body of medical opinion.
The only deviation from the Bolam & Bolitho test will occur when the issue relates to a medical professional obtaining informed consent from a patient. The UK Supreme Court case of Montgomery v Lancashire Health Board (2015) replaces the Bolam test in assessing the adequacy of consent. The Montgomery test requires medical professionals to disclose ‘any risk to which a reasonable person would attach significance.’
The Test in the Republic of Ireland
The test for medical negligence in the Republic of Ireland is set out in the case of Dunne v National Maternity Hospital & Jackson (1989) which states:
‘The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he or she has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty, if acting with ordinary care.’
Following this test, negligence would not be established where the allegation of negligence is that the medical practitioner deviated from a general or approved practice unless it is proved that no other medical practitioner of equal specialism, status and skill would have adopted this particular practice.
The test for negligence established in Dunne has been recently upheld by the Irish Supreme Court in the case of Ruth Morrisey & Paul Morriseey v HSE, Quest Diagnostics Inc & Medlab Pathology Ltd (2020). In this case, the Supreme Court unequivocally affirmed the Dunne test as the appropriate legal standard for establishing negligence.
The key distinction between the tests in Northern Ireland and the Republic of Ireland in practice is that Bolam & Bolitho requires the Plaintiff to prove that a medical professional’s care or treatment has fell below what would be acceptable to a reasonable body of medical opinion, while Dunne requires the plaintiff to prove that the medical professional has acted in a manner that no other similarly qualified practitioner would act.
The test in Dunne is clearly more onerous and establishes an extremely high threshold for proving medical negligence in the Republic of Ireland. The natural argument in favour of the Dunne test is that the high evidential burden of proof offers due protection to the medical practice while also holding them to account for particularly serious deviations from accepted practice.
However, the practical implications of applying the Dunne test is that substandard medical treatment which results in serious injury will not be considered negligent unless the plaintiff can produce expert medical evidence from a similarly qualified expert who states that no other medical practitioner would have acted in this manner. This is often an impossibly difficult assessment for a medical expert to make.
It is submitted that the Bolam & Bolitho test (now bolstered by the Montgomery informed consent test) strikes a more appropriate balance between the rights of medical practitioners and protecting members of the public. This test offers a more nuanced approach but is still subject to rigorous scrutiny of expert medical evidence.
There is no indication of a move toward a less stringent test for medical negligence in the Republic of Ireland, particularly given the Supreme Court’s recent endorsement of the Dunne test in the Morrisey case. Nonetheless, the tests in both jurisdictions will undoubtedly evolve over time and will hopefully lead to a greater standard of healthcare across the island of Ireland.