Sir Rupert Jackson calls for a new clinical liability test which would ask whether a patient suffered “reasonably avoidable injury.”

Former Court of Appeal judge Sir Rupert Jackson revealed a radical new test at a medico-legal conference in London last week.  

Jackson called for different disciplinary tribunals to be abolished and suggested they be brought under a general tribunal system.

He said: “The same judges who currently hear clinical negligence claims would continue to do so, but in the tribunal context.”

“It may be easier to introduce and – in the future – extend my proposals for fixed costs, if the forum for clinical negligence litigation becomes a specialist chamber of the First-tier Tribunal or the Upper Tribunal.”

“In respect of cases above the fixed-costs regime, the tribunal would be well able to costs manage the proceedings.”

He explained that there was an increasing issue with standard of care: “As the population ages and the demands on the health service increase, doctors can more and more often rely upon systemic issues and say ‘I was doing my best in an impossible situation.”

‘The time may come, for example in an unusually long and cold winter, when an NHS trust can demonstrate it simply did not have the funds to deploy the requisite staff.”

“The answer is to simplify and objectify the test for liability… if the injury was reasonably avoidable, then the fact that the doctor had been on a twelve-hour shift and had numerous other patients to treat is neither here nor there. The relevant health trust or private hospital is liable.”

Jackson argued that the new test would offer new protection and ensure that medical professionals involved were not named in proceedings.  

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