If you are considering a medical negligence claim in Scotland, you will likely encounter the name Hunter v Hanley. This 1955 Scottish case established the legal test that courts use to decide whether a doctor or other healthcare professional has fallen below the required standard of care — and it is different from the test used in England.
What Is Hunter v Hanley?
Hunter v Hanley [1955] SC 200 is a landmark Scottish Court of Session decision. Mrs Hunter raised an action against Dr Hanley after a hypodermic needle broke during an injection, causing her injury. The court had to decide what standard of care a doctor is required to meet.
Lord President Clyde set out a three-part test that remains the foundation of medical negligence law in Scotland to this day.
The Hunter v Hanley Three-Part Test
To establish that a doctor has departed from the standard of a competent practitioner, a pursuer (the claimant in Scottish legal terminology) must prove all three of the following:
- There is a usual and normal practice in the relevant field of medicine
- The defender (the doctor) did not follow that usual and normal practice
- The course the defender adopted was one which no professional of ordinary skill would have taken if they had been acting with ordinary care
All three elements must be established. It is not enough simply to show that the doctor made a mistake, or that another doctor would have done things differently.
How Is This Different from the English Bolam Test?
In England, medical negligence is governed by the Bolam test from Bolam v Friern Hospital Management Committee [1957]. Under Bolam, a doctor is not negligent if they acted in accordance with a responsible body of medical opinion — even if other doctors would have done things differently.
The key practical difference is this: under Bolam, a doctor can potentially defend a claim by finding a body of expert opinion that supports their approach, even if it is a minority view. Under Hunter v Hanley, the pursuer must show that no doctor of ordinary skill, acting with ordinary care, would have taken the same course.
In practice, both tests set a high bar for claimants. However, Scottish courts apply Hunter v Hanley, and expert evidence in Scottish medical negligence cases must be framed around that test.
The Role of Expert Evidence
Because medical negligence cases turn on professional standards, expert evidence is essential. The pursuer's solicitor will instruct an independent medical expert — usually a consultant in the relevant speciality — to provide a report confirming that the treatment fell below the Hunter v Hanley standard. The defending health board (usually NHS Scotland) will instruct their own expert to argue the opposite.
The quality and credibility of expert evidence is often the deciding factor in Scottish medical negligence cases.
NHS Scotland and the Hunter v Hanley Standard
The vast majority of medical negligence claims in Scotland are brought against NHS Scotland. Claims are typically investigated by the relevant health board and defended by the Central Legal Office on behalf of NHS Scotland. Under the National Health Service (Scotland) Act 1978, health boards have a duty of care to their patients.
Common types of medical negligence claims against NHS Scotland include:
- Misdiagnosis or delayed diagnosis of cancer, stroke, or heart attack
- Surgical errors causing injury or complications
- Birth injuries including cerebral palsy and Erb's palsy
- GP negligence — failure to refer or to act on symptoms
- Anaesthesia errors
- Medication errors
Time Limits for Medical Negligence Claims in Scotland
Medical negligence claims in Scotland are subject to the 3 year limitation period under the Prescription and Limitation (Scotland) Act 1973. The 3 years runs from the date of the negligent treatment, or from the date you became aware (or ought to have become aware) that your injury was caused by negligence — whichever is later. This is particularly relevant for cases where a misdiagnosis is only discovered years after the original treatment.
Making a Medical Negligence Claim in Scotland
Scottish Claims Helpline works with specialist medical negligence solicitors who have extensive experience of Scottish court procedures and the Hunter v Hanley standard. All claims are handled on a no win no fee basis — you pay nothing unless your claim succeeds.
If you believe you or a family member has received substandard medical care from NHS Scotland or a private provider, contact us for a free, no obligation assessment.
About this article: Written by the Scottish Claims Helpline editorial team and reviewed by a qualified Scottish solicitor.
Scottish Claims Helpline is authorised and regulated by the Financial Conduct Authority
(
FRN 830381).