Hunter v Hanley: The Scottish Medical Negligence Test Explained
In Scotland, when a patient suffers harm at the hands of a medical professional, the legal question of whether that professional was negligent is not answered by guesswork or by the standards applied in English courts. It is answered by a test that has its roots in a Scottish case decided over seventy years ago — a case involving a broken hypodermic needle, a general practitioner in Lanarkshire, and a legal principle that continues to define medical negligence litigation in Scotland to this day.
That case is Hunter v Hanley, decided by the Court of Session in 1955. Understanding what it established, how it works in practice, and why it matters is essential for anyone in Scotland who has suffered harm as a result of medical treatment and is considering whether they have a claim.
The Background to the Case
The facts of Hunter v Hanley were relatively straightforward. A patient, Mrs Hunter, attended her general practitioner, Dr Hanley, for an injection. During the procedure, the hypodermic needle broke and caused injury to the patient. Mrs Hunter argued that the doctor had been negligent — that he had used a needle that was unsuitable for the purpose and had applied excessive force during the injection.
The case reached the Inner House of the Court of Session, which is the senior appellate civil court in Scotland. The presiding judge was Lord President Clyde, and his judgment contained a formulation of the test for professional negligence that became one of the most frequently cited passages in the history of Scots law.
The question Lord President Clyde was addressing was deceptively simple: when does a doctor's departure from normal practice amount to negligence? His answer established a three-part test that Scottish courts have applied ever since.
The Hunter v Hanley Test
Lord President Clyde set out the test in clear terms. To establish that a professional person was negligent in departing from the usual practice of their profession, three things must be proved.
First, it must be proved that there is a usual and normal practice in the relevant field. You cannot establish a departure from a standard that does not exist or cannot be identified. Medical practice must have a recognised approach to the situation in question.
Second, it must be proved that the defender — the medical professional being sued — departed from that usual and normal practice. It is not enough to show that the professional did something differently from how most practitioners would approach the same situation. The departure must be demonstrated with specificity.
Third, and most importantly, it must be proved that the departure from normal practice was one that no professional of ordinary skill would have taken had they been exercising ordinary care. This is the crucial element. A doctor who departs from usual practice is not automatically negligent. Medicine involves clinical judgment. Different practitioners make different decisions. The question is not whether the professional did something unusual — it is whether what they did was something that no reasonably competent professional in their field, exercising reasonable care, would have done.
Lord President Clyde expressed this himself in language that has been quoted in Scottish courts repeatedly in the decades since. He made clear that a deviation from normal practice is not negligent in itself. The deviation becomes negligent only when it is of a kind that no doctor of ordinary skill would make if they were exercising ordinary care.
Why the Third Element Is the Heart of the Test
The third element of the Hunter v Hanley test is where most medical negligence cases in Scotland are won or lost. It sets a deliberately demanding standard of proof for claimants, and it does so for a reason.
Medicine is not an exact science. Clinicians make judgment calls every day. Two competent surgeons may approach the same procedure differently. Two experienced GPs may prescribe different treatments for the same presentation. The law does not require every medical professional to make the optimal decision in every situation. It requires them to exercise the skill and care of a reasonably competent practitioner in their field.
This means that a patient who has received treatment that turned out to be suboptimal, or even harmful, does not automatically have a negligence claim. The treatment must have fallen below the standard that no ordinarily skilled professional would have fallen below. There is a meaningful gap between a bad outcome and a negligent one, and the Hunter v Hanley test is designed to preserve that distinction.
From a claimant's perspective, this makes expert evidence central to any medical negligence case in Scotland. To satisfy the third element of the test, you almost always need a medical expert who can testify that the treatment given to you was not only different from standard practice but different in a way that no reasonably competent practitioner exercising ordinary care would have countenanced. That expert evidence defines the shape of the case.
Hunter v Hanley and the English Bolam Test
The Hunter v Hanley test is sometimes compared to the Bolam test, which is the equivalent standard applied in English medical negligence cases. Bolam v Friern Hospital Management Committee was decided in England in 1957, two years after Hunter v Hanley, and it established that a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular field.
The two tests are similar in their broad approach — both protect medical professionals who exercise reasonable clinical judgment and both require expert evidence to establish what proper practice looks like. However, they are not identical, and there are meaningful differences in how they operate and how they have developed through subsequent case law.
In England, the Bolam test was modified by the House of Lords in Bolitho v City and Hackney Health Authority in 1997, which confirmed that the court is not bound to accept expert evidence simply because a body of professional opinion supports the defendant's conduct — the expert opinion must also be capable of withstanding logical scrutiny. Scottish courts have considered similar principles, and the relationship between Hunter v Hanley and the evolving English case law has been the subject of academic commentary and judicial discussion in Scotland.
The important practical point for Scottish claimants is that their case will be assessed by Scottish courts applying the Hunter v Hanley test, not the Bolam test. Scottish solicitors instructed on clinical negligence cases will frame their arguments and their expert evidence around the Scottish formulation. This is another reason why having Scottish legal representation matters when pursuing a medical negligence claim.
How the Test Applies in Practice Today
The categories of medical negligence claim to which Hunter v Hanley applies are broad. Surgical errors, misdiagnosis, delayed diagnosis, prescribing errors, failure to refer, failures in post-operative care, obstetric errors, dental negligence, and GP negligence are all assessed against the same three-part standard.
In each case, the process follows a similar pattern. The claimant's legal team obtains the full medical records. Those records are reviewed by an independent medical expert in the relevant specialty. The expert considers whether the treatment given departed from the usual and normal practice in that field, and if so, whether that departure was one that no ordinarily skilled practitioner exercising ordinary care would have made. If the expert concludes that it was, that opinion forms the foundation of the negligence case.
The medical records themselves are therefore critical. In Scotland, patients have a legal right to access their medical records under both UK data protection law and the Access to Health Records Act 1990. Obtaining those records early in the process — before any limitation concerns arise — is one of the first steps any clinical negligence solicitor will take.
The three-year time limit under the Prescription and Limitation (Scotland) Act 1973 applies to medical negligence claims as it does to other personal injury claims, though the date from which the clock runs can be more complex in clinical negligence cases. Where a patient did not know — and could not reasonably have known — that their harm was caused by a failure in their treatment, the three years may run from the date they acquired that knowledge rather than from the date of the treatment itself. This is known as the date of knowledge, and it is a question that requires careful legal analysis in many clinical negligence cases.
What Hunter v Hanley Means For You
If you have suffered harm following medical treatment in Scotland — whether in an NHS Scotland hospital, a GP surgery, a private clinic, or a dental practice — the Hunter v Hanley test is the legal framework that will determine whether you have a negligence claim.
It is a rigorous test. It is intended to be. But it is also a test that can be satisfied, and is satisfied, in cases across Scotland every year. The key is expert evidence, early action, and legal representation by Scottish solicitors who understand clinical negligence litigation and the Scottish court system.
If you believe your treatment fell below the standard required, the starting point is always the same: get your records, get independent medical opinion, and get specialist legal advice before the three-year clock runs out.