They argued that in cases of pure diagnosis, there is limited scope for a difference in opinion. The Bolam test has instilled a degree of confidence on the part of the professional, precisely because it allows a degree of flexibility as to differing medical views. The medical professionals carrying out the therapy did not give Mr Bolam any muscle relaxant and his body was not restrained in any way. To find out more about our Clinical Negligence barristers, click here. Disclaimer: This essay has been written by a law student and not by our expert law writers. Promoting the best interests of a patient is a notion held most dearly by the medical profession, yet some may argue that this acclamation can in some situations undermine the wishes of a patient. There have been a few cases involving misdiagnosis or delayed diagnosis where the Bolam test has been found to have limitations. Innovative treatment may be tested without undue trepidation, benefitting both practitioners and patients. Therefore, the only possible occasion where paternalism may benefit an individual is in the instance where a new life is championed as superior to one that may have otherwise been led[19]. Prior to these comments, in Salmonds Law of Torts, it was claimed that negligence alludes to an ethical concept as general practice itself may not be on equal terms with the standard of care required of a reasonably prudent man[43]. The author is of the view that the Bolam Test should be sparingly applied especially in situations where it will lead to injustice under the guise of judicial precedent. Nonetheless, equivalent arguments can be made from a patients perspective who having suffered a loss may conceivably have to live with it for the duration of his life. The NHS Trust used the Bolam test argument to show that the misdiagnosis wasnt through negligence. You should not treat any information in this essay as being authoritative. Apparent difference between 'Bolam' and 'Montgomery' The 'Bolam' principle has long been the traditional test governing how much information is necessary to avoid liability in negligence.The principle is that 'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . Lanarkshire Health Board (Montgomery) held that Bolam should no longer apply in the context of negligent non-disclosure of information about risks and reasonable treatment alternatives.2 Lords Kerr and Reed, who jointly gave the leading judgment, stated: 'There is no reason to perpetuate the application of the Bolam test in this context any In Bolam there was an issue of information disclosure (consent). On the other hand, he argues, as long as negligence is concerned with what is done, with practice, it may be said to be a sociological concept[42]. In the end, the judge used the Bolam test but considered the limitations when looking at negligence in cases involving pure diagnosis. Free resources to assist you with your legal studies! It should be duly noted that this boon of scientific growth should nevertheless be subordinate to patient welfare; patients cannot be treated as guinea pigs catalysing the careers of doctors. The case Bolam v Friern Hospital Management Committee (1957) 1 WLR 583 established that if a doctor acts in accordance with a responsible body of medical . Published: 22nd Jul 2019. Bolam insists upon a negligence test that is unique only to the medical profession, as the standard of care is set by other doctors[39]. The test of materiality was defined as whether "a reasonable person in the patient's position would be likely . Carson-Stevens A, Campbell S, Bell BG, Cooper A, Armstrong S, Ashcroft D, Boyd M, Prosser Evans H, Mehta R, Sheehan C, Sheikh A, Avery A. BMC Fam Pract. A patient may feel his autonomy is being crippled by the purported omniscience of a practitioner. For that reason, medical professionals within a similar field to the defendant doctor or healthcare professional will be called upon. However, the judge ruled in favour of the doctor after applying the Bolam test. For many years we have acted in cases across the spectrum of clinical negligence litigation, ranging from smaller claims arising from dental treatment and minor cosmetic surgery to the most serious cases of birth and catastrophic injury and fatality. An argument was made for informed consent but was rejected on the basis that the Bolam test should always be appliedwhen considering whether a doctor was negligent. Hence, it was a matter for the courts to adjudicate whether the failure to provide the necessary drugs amounted to medical bankruptcy and a triumphant claim of negligence. It is conceivable that in the venerated sphere of medicine the spirit of camaraderie may unfold and thus doctors may be willing to vouch for their fellow professionals who may be seen as committing a mistake in a distressing environment. What proves to be a distressing quagmire in medical negligence claims is the sour ordeal faced by the patient may leave him feeling disappointed with the administering of treatment. Kerr J considered the approach taken by HHJPeppit QC in Penney v East Kent Health Authority[2000] Lloyds Rep Med 41, who observed that the abnormality on Claimants slides in that case was there to be seen and should have been recorded. From the practitioners lens, a paternalistic approach is backed by the allegiance with the Hippocratic Oath; a solemn marriage to consider what is best for the patient at all times. Negligence occurs as a result of a person breaching a duty of care that is owed to another person, and the damage that consequently ensued was not too remote to that breach. Hence as Illich attests, an individuals wellbeing is akin to the degree of lived freedom[14]. Nonetheless, upon dissecting the case it is evident that whilst their Lordships were cognisant of patient autonomy in the face of a growing paternalistic approach, there appeared to be a clear hesitance to put a halt to this apparent erosion of patient trust. Br J Hosp Med (Lond). Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Rather, he places emphasis on the growing realisation in the medical kingdom that collective partnership in treatment can furnish therapeutic benefits, whilst affording due respect for the patients moral agency[24]. and transmitted securely. It also becomes inconvenient and burdensome as to decide who would automate and who would train Continue Reading 4 Quora User Medicine is inherently an arduous and technically convoluted discipline that requires a special degree of expertise and dexterity; skills that are not necessarily colloquial within the general public. Moreover, the patient senses resentment towards the modus operandi and will inevitably be aggrieved that in a state of vulnerability, his integrity and physical autonomy have been violated. United Kingdom, Clinical Negligence Cases: When the Bolam Test Does Not Apply, Bolam v Friern Hospital Management Committee, Muller v Kings College Hospital NHS Trust, Bolitho v City and Hackney Health Authority, FB v Princess Alexandra Hospital NHS Trust, Diagnosis and Management of Strokes in Emergency and Primary Care Settings, The Applicable Standard of Care in Cases Involving Medical Negligence Abroad. 2010 Jun;71(6):331-4. doi: 10.12968/hmed.2010.71.6.48444. Furthermore, owing to the fact that proceedings are reliant upon the existence of a concurring body of opinion, the practice has seemingly become nothing more than a rubber stamping exercise. Kerr J expressed regret that he was constrained by the law to view the exercise of preferring one expert over another through the prism of the exception to Bolam laid down in Bolitho v City and Hackney Health Authority[1998] AC 232 namely, whether the view of the body of opinion relied upon isuntenable in logic or otherwise flawed in some manner rendering its conclusion indefensible and impermissible ([79]). The 2015 UK Supreme Court ruling in Montgomery has displaced Bolam on this issue and is inducing a disquieting sense of angst in some medico-legally conscious clinicians. They can provide further clarification on anything you may be unsure of. This risk manifested during labour and complications during the delivery resulted in her baby being born with severe disabilities. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. automated-website-testing, selenium-testing, test-automation. It is apparent that public confidence is the key to advances in Medicine, but this must be attributed to the successful dispatching of a practitioners duties. The following section will look at some questions often asked about the Bolam test with regards to medical negligence claims. The standards that applied at the time of . Bolam holds that the law imposes a duty of care between a doctor and his patient, but the standard of that care is a matter of medical judgement. In treatment diagnosis, however, a doctor might recommend a certain course of treatment or further diagnostic test, and a range of these may be considered reasonable. The Bolam test of the reasonable standard of practice is still used to determine negligence. However, these are cases where the experts cannot both be correct. The patient suffered serious injuries, including a fractured hip joint, for which he claimed compensation. Bolitho test. This sector in medical law recognises the importance of autonomy over paternalism; however, this area can potentially become troublesome once an element of late pregnancies is adjoined[26]. It thus follows that an inquisition into the repercussions of the Bolam decision is necessary to contextualise the various criticisms and allegations enveloping the case. NG1 5EF McNair J at the first instance in Bolam[19] noted that what was common practice in a particular profession was highly relevant to the standard of care required. It considers the treatment provided (not the outcome) and is sufficiently flexible to take account of the fact that medical treatment is rarely black and white. In cases where a patient suffered further or avoidable harm under the care of a medical professional, this test can be used to ascertain whether the care provided was of an appropriate standard. The extent of your injuries will be considered, including how severe they are and how badly they have impacted your quality of life. The Bolam test is then described and how it has come to play such a prominent role in assisting the courts to assess if an appropriate standard has been achieved in medical negligence litigation. In this guide, well explore the Bolam test case thats often used in medical negligence claims today. Moreover, as Kennedy vehemently proclaims the doctor patient paradigm represents a disproportionate balance where due to the very nature of the relationship, the patient is completely vulnerable. Although the Bolam test can help to determine whether a doctor has acted negligently, some recent cases have highlighted its limits in certain medical negligence claims. Indubitably, it is an arduous task to strike a balance between the best interests and wishes of the patient. McNair J famously proclaimed in his judgment that a doctor cannot be held as negligent in his actions if he has acted in accordance with a practice accepted as proper by a responsible body of men skilled in that particular art[35]. But the question that still remains is whether India needs to adopt the new test to satisfy the requirements of stricter medical negligence laws and meet the needs of increasing negligence litigation. If the correct standard of care could have avoided the harm or worsening of your condition had they provided you with the correct standard of care, then this is an example of medical negligence. Within the Bolam test, the correct standard of care is a matter of medical judgement. Relying on Hunter v Hanley11 as the basis, McNair J in the landmark case Bolam v Friern Hospital Management Committee12 laid down the now famous Bolam test, which . There was thus no issue as to whether a particular course of professional conduct was acceptable practice. The Bolam principle1 establishes that a professional is required to exercise the ordinary skill of a competent practitioner in his/her field. Medical negligence: who sets the standard? Yet the case law encircling the pastures of repudiating medical treatment continues to uphold the principle of self determination. The Bolam v Friern Hospital Management Committee [1957] WLR 582 is a case between a patient and mental health facility. This prejudicial approach could be perceived as a hazardous caveat of the medical profession standing tightly in unity to eschew the blemishes of negligence claims; the law could become a gateway for medical miscarriages. Furthermore, Braziers findings suggest that the principle of beneficence, not autonomy, promotes a middle ground in battles against medical paternalism. Conversely, a doctor may argue that if the patient wishes to regain his health, then his wishes match that of the medical profession. For instance: It can be argued that patients cant fully consent to something if they dont have a full understanding. Several schools of thought recognised that the treatment caused severe muscular spasms and consequently administered muscle relaxants. the so called -Bolam test. Bolam The Consent Argument. Sandiford NA, Mahendra M, Wickramarachchi L, Back D, Bansal M. Cureus. The .gov means its official. The evidence you provide wont necessarily prove that negligence occurred. The Human Rights Act 1998 gave individuals in the UK recognised autonomy over their own bodies. How To Make A Claim If Cut By Barbed Wire, Back Injury Compensation Payouts In The UK, How Much Compensation For Whiplash? Financial Matters After Divorce. It is only just that adjudicators recognise this pose to avert any vexatious claims, but at the same time they must not err on the side of strictness to an extent where the conviction that health is a fundamental good is altered into the belief that medicine is a fundamental good[20]. Simply put, the Bolam Test was essentially that the body of professionals themselves were the best people . A discussion of the two polarities is imperative to efficaciously evaluate the essence of Bolam and later cases. In O'Hare and another v Coutts & Co, the High Court moved away from the "Bolam" test for professional negligence claims (by reference to what a responsible body of professionals would do), at least in respect of financial advisers alerting their clients to investment risks.Does this suggest a change is coming in assessing negligence claims against construction professionals? A potential benefit attained from Bolam is the lee weigh afforded to clinicians in experimenting with alternative treatment, which may have great bearing in the evolution of the discipline. One of the main drawbacks of the Bolam test is that it gives legal sanction to a self-regulatory system that operates for the benefit of clinicians in that it is the medical profession themselves and not the courts that decide the yardstick by which reasonable practice is measured. Moreover, the patient has not been warned of the potential for physical injury resulting from the treatment. Bolman and Deal proposed that a leader should see the organisation's challenges through these four Frames or 'lenses', to gain an overall view, and to decide which Frame or Frames to use. Bolam received grave criticism from academics, therefore subsequent case law is important to analyse in order to ascertain whether precedent was perpetuated or replaced. The highly dubious and academically contested area of the Bolam case lies in the reasoning applied to the second limb of the test. If youve been caused avoidable harm or a worsening of your condition as the result of medical negligence, you may be able to claim. Bolam had not been restrained during the procedure. Essays, case summaries, problem questions and dissertations here are relevant to law students from the United Kingdom and Great Britain, as well as students wishing to learn more about the UK legal system from overseas. In Muller v Kings College Hospital NHS Trust[2017] QB 987 these are recognised as 'pure diagnosis' cases. It was the practice of the defendants' doctors not to warm patients of the risks of E.C.T. Bolitho's test The Bolitho test evolved from the case of Bolitho v. City and Hackney Health Authority (1997), which challenged the approach of medical negligence taken in the case of Bolam. In this guide, we will look in greater detail at the duty of care owed by healthcare providers and how this can be breached. For that reason, it can help to have a solicitor experienced in handling these types of cases and helping you get the compensation you deserve. Attempts by the courts to move away from Bolam are discussed and the difficulties encountered because of the reluctance of the appellate courts to . It is thus unsurprising that judicial deference exists as the repercussions of legal verdicts can have a debilitating effect on the medical terrain. Do you have a 2:1 degree or higher? Clipboard, Search History, and several other advanced features are temporarily unavailable. First, we disaggregate the diagnostic process into three different acts: forming the diagnosis, communicating it to the patient, and . It is used to assess the standard of reasonable care in negligence cases (Abraham, 2017).As with (Wilsher v Essex Area Health Authority [1988] . The normal practice did not involve giving patients muscle relaxants or providing restraints. I want to know the advantages as well as disadvantages of automation testing. Lord Diplock professed that it is unnecessary for the court to give effect to any preference it may have for one responsible body of professional opinion over another and nor is it willing to put itself in the surgeons shoes[46]. The Supreme Court is the highest appeals court in England and Wales in most of the cases . She cites Kay Js proclamation that it would be a matter of great regret if patient rights were to usurp the medical empire, thus overlooking other ethical values and institutional integrity[29]. Identifying 'avoidable harm' in family practice: a RAND/UCLA Appropriateness Method consensus study. Specifically, the second limb of the test warrants that the detriment endured has a causal link to the negligent act. 1985 Sep;11(3):135-7. doi: 10.1136/jme.11.3.135. As a result of sustained increase in the level of instructions being received, opportunities now exist for established practitioners to join our cohesive and highly successful set of chambers. The body of doctors Bolam test was subsequently lifted and adopted by the Court of Appeal and High Court in cases like Maynard v West Midlands RHA 1984 1 WLR 634 and Sidaway v Bethlem and Maudsley Hospitals 1985 AC 871 to become "the Bolam test". Judges sense the burdens and stresses entangled in this demanding discipline and seemingly append excessive significance on these issues. The changing face of medical negligence law: from Bolam to Bolitho. What is the Bolam standard of care? Lastly, it will conclude by . Bolam v Friern Barnet Hospital Management [1957] 2 All ER 118 set the traditional test in professional negligence cases. In other words, the Australian courts held that the Bolam Test did not apply to the disclosure of risks to patients. 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