How Useful is the Establishment of a Duty of Care for our Armed Forces?

Much has been written in recent months regarding the ‘duty of care’ this country has to its armed forces. Such a duty does not have to be enshrined in statute law and the establishment of such a duty is often left to the common law to determine in respect to individual cases. However, it is a welcomed fact that the duty is being enshrined within the Armed Forces Bill currently moving its way through parliament.

That said, whilst many people were, through the media of press and television, publically rejoicing at the Government’s decision, I was led to consider what such inclusion might mean in reality, and whether it was just a statement of the existing situation rather than a positive move towards establishing that which most people really want; that is, practical care of our serving forces personnel and their families, along with appropriate after-care when they leave the forces (and especially so if they are injured). The best way I can describe my concerns is to consider the duty of care which exists in respect to the role of healthcare personnel to our patients.

The Oxford Dictionary of Law defines ‘duty of care as ‘The legal obligation to take reasonable care to avoid causing damage’. Clearly, that is an understandable duty in respect to the actions of a doctor, for example. However, the same concept does not translate very well to a soldier serving in the front line of a war zone. In medicine, it is a duty which has been established in common law and is enshrined within the General Medical Council’s Code of Practice for doctors. From a patient’s perspective, the purpose of establishing a duty of care is to ensure that the patient is treated well. The flip side is, of course, that a patient might seek legal remedy should there be the perception that something has gone wrong in the process of that duty being performed. Therein often resides the difficulty, for establishing negligence (and thus being eligible for compensation) is a tortuous path to tread.

To establish negligence a patient must first show that there existed a duty of care; that done, the next step is to prove that there was a failure on the part of the doctor to fulfil that duty. Finally, it has to be shown that the failure directly led to the injury for which the patient seeks compensation. If there is no injury sustained, or the causal link between the three factors cannot be proven, then there is no remedy in law as negligence has not been established.

In medicine, the whole process is often confounded at the second hurdle, as what constitutes good or appropriate care is not always clear-cut within a profession that is only partially based on science. The Bolam test is often quoted, being a judgement stemming from a 1957 court case (Bolam v. Friern Hospital Management Committee), when it was established that ‘a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’. So, if it is as difficult as that within the realm of healthcare, what hope does the family of an injured soldier have, where the boundaries are even less clear? I fear that the current inclusion may be a good start, but the victory may still prove to be very hollow in a practical sense.

First Published in the Scunthorpe Telegraph, Monday 30th May 2011