Jess’s Rule: “Three strikes and we rethink” – ensuring protection for patients and clinicians in primary care

This article was authored by Abigail Brugger, solicitor apprentice and India O'Hagan, trainee solicitor.

The recent introduction of “Jess’s Rule” for GPs in England marks a significant development in the landscape of patient safety guidance within primary care. 

Named in memory of Jessica Brady, who tragically died due to cancer following multiple GP consultations without a timely diagnosis, Jess’s Rule emphasises the need for a GP to ‘reflect, review and rethink’ after three consultations for the same or similar symptoms or concerns where:

• No substantiated diagnosis has been made.
• The treatment plan is failing.
• The patient’s condition is deteriorating.

At this point, clinicians are advised to pause, review, and consider further investigations, referral, or alternative management.

Practical implications for patients

The principle of Jess’s Rule is arguably already part of good practice adhered to by GPs around the UK, however the Rule refocuses such practice.

The impact of Jess’s Rule can be anticipated with reference to its secondary care predecessor, Martha’s Rule, which was introduced in April 2024. Martha’s Rule provides a route for patients and their families to obtain an urgent review when a patient’s condition is deteriorating. Since being introduced, the data collected from NHS sites where it is in place “suggests Martha’s Rule is saving lives”, with escalation calls resulting in “potentially life-saving transfers of care”, and others resulting in changes to the treatment given.

Jess’s Rule is hoped to have a similarly positive impact in prompting a change in medical management and decision-making when there remains diagnostic uncertainty or ineffective treatment.

Legal relevance

Although Jess’s Rule does not have statutory weight and remains guidance only, departing from it is likely to support a claim that the expected standard of care was not met should there be a poor patient outcome.  However, much like departing from other guidance and guidelines, a clinician can still establish their actions were reasonable and in accordance with a responsible body of practice (O’Brien (administratrix of the estate of John Berry (deceased)) v Guy’s and St Thomas’ NHS Trust [2022]).

A GP’s decision to overlook Jess’s Rule, however, would still fall to be assessed against the established negligence tests:

• Bolam v Friern Hospital Management Committee [1957] – whether the clinician’s actions were in line with a responsible body of medical opinion.
• Bolitho v City and Hackney Health Authority [1998] – whether that body of opinion withstands logical analysis.

It is our view that court’s may look at the second pillar (Bolitho) with more scrutiny when considering claims with a Jess’s Rule element. How logical is it for a GP to refuse to obtain a second opinion, refer, or attempt alternative treatments when a patient is a frequent returner and is not improving.

Practical implications for potential clinical negligence claims

• Documentation remains key – clear contemporaneous records of clinical reasoning, safety-netting advice, and escalation decisions will be critical in demonstrating that a GP acted reasonably.
• Scope of the “three strikes” – questions will arise as to what constitutes a qualifying consultation and how similar symptoms must be for the rule to be engaged. The uptake of ambient voice technology in primary care will at least provide both parties with a more accurate and complete record of the index consultations than traditional notekeeping.
• Resource and systemic constraints – clinicians may need to rely on contextual evidence, such as service availability and referral pathways, to demonstrate that the actions taken were reasonable.
• Expert evidence – while Jess’s Rule may be cited as best practice, experts should be instructed to address the Bolam/Bolitho framework explicitly when considering alleged departures from the Rule.

Comment

Jess’s Rule provides a further safety net for patients not responding to treatment and is therefore a welcome step towards offering safer patient care in primary care settings. However, this will have resourcing implications. Whilst GPs have long seen themselves as the gatekeepers to secondary care, many expect an increase in secondary care referrals as a result. 

In the context of a claim for alleged clinical negligence, although Jess’s Rule may influence the scope of best practice, the law remains grounded in Bolam and Bolitho. A clinician’s decisions would need to be presented in context, supported by records, and evaluated against established negligence principles rather than evolving guidance alone.

Related items:

• Martha’s Rule: early intervention protecting patients and clinicians
• Kennedys Patient Safety Forum: a focus on Martha’s Rule