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Table of Cases UK cases Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771 Donoghue v Stevenson [1932] AC 562 Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871

The Bolam test is a test that is used the determine whether or not a medical professional has breached their duty of care to a patient when

medical negligence is claimed. To determine whether or not negligence has occurred, there is a three stage test that must be satisfied.1 It must be proven that a person is owed a duty of care, that the duty of care established has been breached and that there has been harm that is legally recognised caused as a direct result of that breach. The principle of duty of care was established in the case of Donoghue v Stevenson2, where it was held that there is a general duty to take reasonable care as to not inflict a foreseeable injury to a ‘neighbour’. The definition of who classes as a neighbour is any person who that may be directly affected by your act that it is reasonable to assume that you should have them in contemplation as being affected. A medical practitioner owes a duty of care to their patients as they are directly affected by their actions so much so that the practitioner should have the patient in consideration when carrying out acts.

The locus classicus of the Bolam test is that a medical professional doesn’t breach the standard of care if their actions are regarded as proper by a responsible body of medical professionals in the same field3 In the case of Bolam v Friern Hospital Management Committee4, the defendant was sued after the patient claimed negligence as the doctor did not restrain them or give them a muscle relaxant drug prior to electroconvulsive therapy. The claimant sustained several fractures to his pelvis during the procedure5 1 Daniele Bryden and Ian Storey, 'Duty Of Care And Medical Negligence' 2 Donoghue v Stevenson [1932] AC 562 3 John Tingle and Pippa Bark, Patient Safety, Law Policy And Practice (2011). 4 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 5 'Health Hospital Treatment' (Lawteacher.net, 2020) accessed 15 March 2020.

however it was held that the doctor did not breach his duty, therefore the defendant was not liable as the method was approved by a “responsible portion of the medical profession”.6 Therefore, in order to satisfy the test and be considered not negligent, others must agree that the individual did not act in a way that has breached the standard of care expected. Additionally, It does not matter if others, within the same area of practice, would disagree with this practice as long as the responsible body agrees.

The Bolam test traditionally made it hard when attempting to claim negligence against a medical professional as the evidence of negligence is decided by other medical practitioners. The Bolam test prevents judges from scrutinising competing bodies of experts in order to discover what is reasonable.7 A practitioner would almost always be able to assemble a body of expert opinion that concluded that the method used by them was indeed proper. The judge was not entitled to find the defendant guilty of the basis of preference of one method over another. The issue regarding this is that the judgement is based alone on the testimony of only one body, and the rationale of the process behind the evidence cannot be questioned, therefore it would be rare for a judge to be able to find the defendant negligent.

6 'Bolam V Friern Hospital Management Committee' (Lawteacher.net, 2020) accessed 14 March 2020. 7 Rob Haywood, '“IF THE PROBLEM PERSISTS, COME BACK TO SEE ME ... .”—AN EMPIRICAL STUDY OF CLINICAL NEGLIGENCE CASES AGAINST GENERAL PRACTITIONERS' (UEA Law School 2018).

However, the court argued that they reserve the right to disagree and disprove a method, therefore hold the defendant as negligent, even if it was accepted widely by a medical body as proper. In Bolitho v City and Hackney Health Authority8, it was challenged that if the court believed that the Bolam test was not appropriate for a certain case then a judge can overrule it. It was held that a judge would be able to now consider whether or not a body of medical experts was logical. The judge had to be satisfied that the expert opinion had a logical basis regardless if the method in question was agreed as acceptable by a body of professionals.9

The Bolam test was criticised heavily as only being in the interest of protecting medical professionals and not being in the interest of the patients or logic.10 The test ensures that regardless of logical reasoning, it is unlikely that a practitioner would be found negligent as it serves as a means to protect themselves and each other. By allowing the test of whether a practitioner is found negligence or not to be determined by other medical professionals alone, it allows for them to set their own standards, which therefore allows them to be set low.11 The Bolam test can therefore be argued as unfair and not in the interest of the patient as it is hard to prove negligence when the standards are set by the same people

8 Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771 9 'Bolitho Test - Timms Solicitors' (Timms Solicitors, 2020) accessed 15 March 2020. 10 'A Doctor Is Not Guilty Of Negligence' (Lawteacher.net, 2020) accessed 15 March 2020.

11 'A Doctor Is Not Guilty Of Negligence' (Lawteacher.net, 2020) accessed 15 March 2020.

who act out the negligent methods. A shift is needed in order to ensure that the test is reasonable, logical and not biased. Instead of upholding a high standard of care, the Bolam test allows the standard to be below what is objectively acceptable as long as it can be supported by others.12

The decision of the court in Montgomery v Lanarkshire has been seen to redefine the law regarding medical negligence.13 In this case the claimant wasn’t informed about the risk of her child having shoulder dystocia due to her diabetes. The doctor claimed that her reason for not informing her patient of said risk was due to it being a small risk. The doctor believed that upon being informed of the risk, patients would opt for a caesarean which was not in their best interests. It was held that a practitioner has a duty of care to ensure that they have informed consent, which means their patient fully understands and is aware of any material risks that are associated with the recommended treatment, as well they have a duty to inform of any alternative treatments.14 A material risk is defined as something in that a reasonable person in the patient’s same position would be likely to attach significance to the risk. The law now requires a practitioner to take reasonable care to make sure that the patient is aware of any risk of the treatment and of any reasonable alternative treatment.

12 (Medicalandlegal.co.uk, 2020) accessed 15 March 2020. 13 Rob Haywood, '“IF THE PROBLEM PERSISTS, COME BACK TO SEE ME ... .”—AN EMPIRICAL STUDY OF CLINICAL NEGLIGENCE CASES AGAINST GENERAL PRACTITIONERS' (UEA Law School 2018). 14 'Montgomery And Informed Consent - The MDU' (Themdu.com, 2020) accessed 14 March 2020.

Instead of asking what a reasonable practitioner would do the question is now what would a reasonable patient want to know.15 This is called the ‘prudent patient test’. Doctors are now expected to spend time adapting their disclosures in accordance with specific patients, as people have different needs. In Montgomery it was stated the “doctor must make a judgement as to how best to explain the risks to the patient, and that providing an effective explanation may require skill”

Contrastingly, in the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital16, Lord Diplock, Templeman and Scarman all stated that the Bolam test was the correct application. Lord Diplock stated that the doctor was right in his decision to refuse to warn the patient of the possible complications. He stated that disclosing risks to the patient can only be a deterrent to undergoing a treatment which a doctor deems in the patients interest.17 He believed that there are times that a doctor is justified in not informing a patient of the risks and that the doctor has the therapeutic privilege. Therapeutic privilege is where a practitioner may be excused from revealing information to a patient when disclosing such information would pose a psychological threat. This was challenged by Lord Browne-Wilkinson as he stated that the court must be “vigilant to see whether to reasons given for putting a patient at risk are valid in the light of any well-known advance in 15 Albert Lee, ‘Bolam’ To ‘Montgomery’ Is Result Of Evolutionary Change Of Medical Practice Towards ‘Patient-Centred Care’ (2016).

16 Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871 17 'The Bolam Test In Clinical Negligence' (Lawteacher.net, 2020) accessed 15 March 2020.

medical knowledge” or “whether they stem from a residual adherence to out of date ideas”.

In conclusion, a shift from Bolam in regard to medical negligence is needed in order to have a. patient centred approach that is focused on the wants of the patient and not the preservation of a practitioners. Bolam still remains an important part regarding breach of duty however medicine is developing into a more protocol focused practise with guidelines deciding the standard of care.

Bibliography

Books Tingle J, and Bark P, Patient Safety, Law Policy And Practice (2011)

Websites and blogs

'A Doctor Is Not Guilty Of Negligence' (Lawteacher.net, 2020) accessed 15 March 2020 'Bolam V Friern Hospital Management Committee' (Lawteacher.net, 2020) accessed 14 March 2020 'Bolitho Test - Timms Solicitors' (Timms Solicitors, 2020) accessed 15 March 2020 'Health Hospital Treatment' (Lawteacher.net, 2020) accessed 15 March 2020 'Montgomery And Informed Consent - The MDU' (Themdu.com, 2020) accessed 14 March 2020

'The Bolam Test In Clinical Negligence' (Lawteacher.net, 2020) accessed 15 March 2020 (Medicalandlegal.co.uk, 2020) accessed 15 March 2020 Bryden D, and Storey I, 'Duty Of Care And Medical Negligence' accessed 15 March 2020 Haywood R, '“IF THE PROBLEM PERSISTS, COME BACK TO SEE ME ... .”—AN EMPIRICAL STUDY OF CLINICAL NEGLIGENCE CASES AGAINST GENERAL PRACTITIONERS' (UEA Law School 2018) Lee A, ‘Bolam’ To ‘Montgomery’ Is Result Of Evolutionary Change Of Medical Practice Towards ‘Patient-Centred Care’ (2016)...