The methods of this test will be depended on the standard of care required by the professionals. As both parties hunt for equivalent ends, there is no need to envisage a conflict of interests. *You can also browse our support articles here >, Correct identification of the relevant issues, Accurate knowledge and understanding of the law, Structured and reasoned arguments and a logical conclusion. J R Soc Med 1990;83:439–43, Who Decides; Making Decisions on Behalf of Mentally Handicapped Adults (LCD, 1997), [1] Bolam v Frierm Barnet HMC 1957 1 WRL 582, [2] Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985. She cites Kay J’s 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] . Lord Scarman recognised, in this case, the therapeutic privilege which entitles a doctor to withhold information from a patient. Lloyd (2001)[16] noted from his studies that although many patients had had the risks of treatment explained to them they did not fully understand the degree of risk posed by the treatment and they were therefore unable to give full informed consent. The court stated that this could have been avoided if the doctors had expressed the risk factor in terms of the percentage of cases were complications might occur. Dickenson, D. (1994) Children’s informed consent to treatment: is the law an ass? Mr Bolam sought compensation on the basis that his anaesthesia had been negligent because: 1. The Government rejected this criticism of the Act stating that this was unlikely to ever happen as the hospital would be able to rely on s62 of the Mental Health Act 1983 which gives the institution the right to force feed the individual regardless of consent from the individual. The patient in this case displayed the symptoms of Tuberculosis, but the doctors could not rule out several other illnesses. Abolishing Bolam in totality could lead to an influx of claims for negligence, and an inability for doctors to be able to treat patients in the way they regard as best for the patient for fear of facing litigation if the treatment is not successful. The case Bolam v Friern Hospital Management Committee (1957) 1 WLR 583 established that there can be no breach in the duty of care so long as the doctor acted in accordance with a responsible body of medical opinion. Shaw, M. (1999) Treatment Decisions in Young People: The Legal Framework. Similar findings were made by Macillop et al (1988)[14] and Sutherland, Lockwood and Till (1990)[15] in relation to patients suffering from cancer. The Bolam Test, at the end of the day, must still satisfy an additional test – it must withstand logical analysis and common sense; which again falls within the purview of the courts. Moreover, Lord Bridge acknowledged this observation by envisaging of situations where the confession of a risk may be patently necessary to the rumination of an informed choice; ergo ‘no reasonably prudent medical man would fail to make it’ [48] . The Bolam Test Lives On Bolitho v City and Hackney Health Authority1 IN recent years, considerable criticism has been levelled at the test for determining the standard of care in negligence with respect to persons within the medical profession. The unconvincing effects of this ruling simply connote that if medical judgment is provided, and as long as the actions of the doctor were in accordance with an accepted practice, negligence has not occurred. 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. Health is preeminent in all humans, and its sustenance has direct ramifications for individual autonomy. The Royal College of Surgeons[10] were also acutely aware of the need for better information to be given to patient’s and produced their own advisory leaflet in 1997 entitled The surgeon’s duty of care. Copyright © 2003 - 2020 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. Airedale NHS Trust v Bland [1993] A.C. 789. 1995 Mar 4;345(8949):575. 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, … Doctors had not warned him about the risks involved. Consideration will be given to the standard of care patients have received as well as causation in situations where clinical negligence as been averred. However, interestingly in this case, Lord Scarman dissented promulgating that Bolam should not apply to issues of informed consent as the practitioner ought to owe a duty to convey any inherent or material risks posed to the patient. Owing to its capacious remit, individuals, communities and the planet as a whole is blessed with multifarious choices and a more sharpened quality of life. The doctor in this case failed to dispense the relaxants and also neglected to fasten restraints on the patient. The Bolam test should be applied.”, Lord Templeman went further in affirming the fact that there are times when the doctor’s would be justified in not warning a patient of the inherent risk. Do you have a 2:1 degree or higher? Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is a case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (e.g. Explanation. This friction is accentuated in negligence claims when failure to consider the wishes of the autonomous patient results in volatile environment. This paper will seek to examine the ubiquitous jurisdiction of Bolam whilst a meticulous attempt will be made to analyse subsequent case law in an effort to ascertain the tendency of judicial decree. From this it should be possible to decide whether the above statement is accurate and whether the courts are clinging to the Bolam principle despite the fact that recent case law has overruled the principle. The anaesthetist did not administer muscle relaxation before the procedure 2. doctors): the Bolam test. This test was by no means a novel idea and considering that medical practitioners possess unequivocally specialist skills it is certainly to be expected that they be judged in accordance with those fellow professionals that are fairly adequate in their vocation. They stated that doctors should weigh up factors such as fear and depression to determine how the disclosure might affect the patient. … Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. *You can also browse our support articles here >. Because she suffered from diabetes she was more likely to have a large baby and there was also a ris… A practitioner’s discretion and clinical judgment remains the foundation of the Bolam test in contemporary clinical practice. Mr Bolam was not restrained during the procedure 3. This Bolam case has been a matter of sustained criticism. Hence as Mackenzie and Cox observe, Brazier finds the medical deviation towards consumerism as a tocsin to restore medical integrity amid suggestions that clinicians are being reduced to mere ‘body technicians’ [30] . Monstrose, writing in the aftermath of the Bolam case, declared that ‘in so far as negligence is concerned with what ought to be done, it may be called an ethical concept’ [41] . It could be argued that this part of the test does not really afford a distinctive bias towards the medical profession than it would to any other line of work. He was able to breathe unaided but was never going to awake from this state. You should not treat any information in this essay as being authoritative. Akin to the court affairs in Bolam, there was a schism between the medical judgments as one body of medical opinion endorsed the defendant’s view whilst another body disapproved of the conduct. The main source of discontent was the … Medical law. No doctor in his senses would impliedly contract at the same time to give to the patient all the information available to the doctor as a result of the doctor’s training and experience and as a result of the doctor’s diagnosis of the patient. Furthermore, Brazier’s findings suggest that the principle of beneficence, not autonomy, promotes a middle ground in battles against medical paternalism. As yet these fears have been unfounded. Take a look at some weird laws from around the world! The test is based on a long line of cases dating 2004. The Bolam test has been criticised for adopting a sociological criterion that legitimises the force of custom; in an evidence linked era, the test is believed to demand too little by way of encouraging higher standards of care. Skip to main content Accessibility help We use cookies to distinguish you from other users and to provide you with a better experience on our websites. However, according to McNair J, ‘A man need not possess the highest expert skill; This has been broadly accepted by the courts as a symptom of the condition and is used in the decision making process as a tool to be used to enforce non consensual treatment of such patients. Moreover, it appears as though the judiciary are too enchanted by the specialty and this beclouds the real issues of external evaluation of medical evidence. This test has been repeatedly approved at appellate level and is enshrined in law. Dealings with the body and matters relating to physical integrity are directly attached to individual autonomy; ergo any malaise endured confines an individual’s autonomy. VAT Registration No: 842417633. Reference this. You can view samples of our professional work here. Second guessing the merits of a clinical evaluation to a patient’s happiness, especially when such little is known about the patient’s life, can be hazardous. Therefore, this asymmetry necessitates for frontier demarcation which is mooted in law and ethics. In connection to medical law, individuals should have the liberty to mediate on matters concerning their wellbeing. Professor Vedsted’s finding have been Endorsed in The UK. The Bolam Test is a means of assessing clinical negligence in Court. Reference this. Department of Health. in cases of alleged clinical negligence, a test used to determine the standard of care owed to a patient by doctors. He applied the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) as to whether that omission was accepted as appropriate by a responsible body of medical opinion. The main source of discontent was the apparent judicial abdication of the power to determine the standard of care required to avoid negligence liability. In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health Authority[3]. 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 patient’s moral agency’ [24] . The child’s mother had asked a hospital to sterilise her daughter as she was concerned that her daughter who had a substantial handicap might be seduced and become pregnant and give birth to an abnormal child. In a discipline like Medicine, there are diverse practices followed by doctors, but mere conformity with one of these practices cannot amount to negligence. Lloyd also noticed that even in some instances when the patient did fully understand the risk posed they were unable to retain the information long enough in order to be able to consider the alternatives that had been offered to them by the doctors. The court upheld the order stating that there was no medical reason for performing this operation and that the child should be protected until she was able to make informed consent on the issue. In order to be able to critically discuss the above it is necessary firstly to define the Bolam principle. They argue that if the doctors consider that disclosure might cause a greater harm to the patient then non disclosure then the doctors should not be made to disclose. A test that arose from English tort law, which is used to assess medical negligence. Company Registration No: 4964706. must be given sufficient information, in a way that they can understand, in order to enable them to make informed decisions about their care[6].”. To establish that trust you must respect patients’ autonomy—their right to decide whether or not to undergo any medical intervention . 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. Criticisms of the Bolam test The principal criticism of the Bolam test is that it fails to draw a distinction between ‘ what is done’ and ‘ what ought to be done’. Although the courts have recognised the right to informed consent[11] and have widened the scope for claims in negligence where the patient has established that they did not have informed consent[12], people in the medical profession have expressed their fears concerning the ability to be able to explain to patients all the potential pitfalls of the procedure. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Superspecialists and the Bolam test. You can view samples of our professional work here. Ways in which doctors might avoid a claim for negligence. Likewise, there existed conflicting medical practice about alerting patients to this risk, some doctors believing that a prompt may prevent the patient from accepting this helpful therapy. Consequently an erratic ambience is created, nurturing a confrontation between both doctor and patient. 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