The Bolam principle1 establishes that a professional is required to exercise the ordinary skill of a competent practitioner in his/her field. Hence, the test in cases involving a doctors duty to advise patients and obtain their consent was thus formulated as follows [88]: an adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. Due to its ubiquitous domain, challenging medical acumen could subvert our general vista and call into question certain features of our everyday lives that are contingent upon it. Published: 22nd Jul 2019. 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. He claimed negligence for not being: However, the decision was in favour of the hospital, as the Court found the doctor had followed normal practice. The absolute right to refuse treatment exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent[25]. However, the doctor didnt inform her of the 1-2% risk of paralysis that the procedure carried. 8600 Rockville Pike Furthermore, in the context of health he proposed that as my body is me, any failure to revere my desires connected to my body is an offensive refutation of autonomy[18]. Judges are perceived to manifest a dormant engagement in cases where challenging the credibility of medical judgment is essential. In this guide, well explore the Bolam test case thats often used in medical negligence claims today. Furthermore the consultants failed to wait for the results of sputum tests and proceeded to carry out an operation. If youre looking to make a claim against the NHS for negligence, our guide could help. The medical province was however, able to find sanctuary under the aegis of an English court room where judges had developed a vehement and preservative attitude towards this universally revered vocation. Every healthcare professional owes their patients the correct standard of care. 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. In the following year, the highest judicature of English law in the case of Sidaway[45], was presented with yet another opportunity to discuss the applicability of Bolam. and transmitted securely. Informed consent says that a person must be given all of the information about what their treatment involves. The figures have been taken from the Judicial College Guidelines (JCG), which is a document that can be used by legal professionals to help value claims. Eventually, the correct diagnosis was given but the delay meant cancer had spread and the patient needed more extensive treatment. The issue was therefore whether on the facts, the SHO failed to take an adequate history. 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]. (2) "However, where there is a body of medical opinion which . This intrinsic empathy for medical practitioners entails a deep understanding of the fallibility of the profession. Calculate Compensation For A Breach Of Medical Duty Of Care, No Win No Fee Claims And The Bolam Test Case. It is thus unsurprising that judicial deference exists as the repercussions of legal verdicts can have a debilitating effect on the medical terrain. treatment (which they believed to be small) unless asked. It can be difficult for people outside the medical profession to determine whether a certain action breached the duty of care or not. This guide will explore the evidence you could gather when preparing to submit your claim. 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. Visit NHS Resolution to see the role they play in claims made against the NHS. Federal government websites often end in .gov or .mil. Judicial reticence is far from desirable but the Bolam test considerably alleviates the burden of dispatching a rather novice evaluation of contrasting medical opinions. She underwent the procedure and suffered paralysis. The author is of the view that the BolamTest should be sparingly applied especially in situations where it will lead to injustice under the guise of judicial precedent. Thereupon, the patient suffered inexorable damage to the pelvis area induced by the ECT. When a patient brings a medical negligence claim against a healthcare professional, it must be determined whether the healthcare professional's conduct has fallen below the standard required by their duty of care. Identifying 'avoidable harm' in family practice: a RAND/UCLA Appropriateness Method consensus study. 2008 Jun;69(6):335-8. doi: 10.12968/hmed.2008.69.6.29623. Bolam test in medical negligence claims guide. So, why not contact us on any of the following: See our guide for information on claiming compensation for a birth injury. Unauthorized use of these marks is strictly prohibited. This page was . Mr. Bolam argued that his doctor has been negligent for the following three reasons: 1.Muscle relaxation had not been administered before the procedure began. Then, it will discuss the advantages and disadvantages of the test using relevant cases. The duty to advise as to risks is subject to the exception that such information could be withheld if the doctor reasonably considered that its disclosure would be seriously detrimental to the patients health or, where the patient required treatment urgently but was unable to make a decision. As Wilkinson asserts, people can be ill equipped to distinguish what is best for them. Alternatively, continue reading for more information. Therefore, the Court held that he provided the correct standard of care in relation to that form of treatment. You should not treat any information in this essay as being authoritative. This led to her making a claim on the grounds that, had the doctor told her the risks, she wouldnt have consented to the surgery. Bolam test. In connection to medical law, individuals should have the liberty to mediate on matters concerning their wellbeing. 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. This is a constant problem within quasi-judicial bodies that often take every opportunity to accept unchallenged the lowest standards of expert opinion. The Bolam test can be used by courts to determine whether or not a healthcare professional was in breach of their duty of care. 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. There were 56 instances of this happening in this time frame. People flock to health institutions when in need of therapeutic assistance, therefore, to some degree trust in its prudence is necessary. They should also be open and honest when dealing with patients regarding their treatments. If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! Conversely, a doctor may argue that if the patient wishes to regain his health, then his wishes match that of the medical profession. An official website of the United States government. PDF. Medical negligence: Can doctors and nurses still rely on the doctrine that they know best? However, your solicitor will make you aware of this before you agree to submit your claim on this basis. 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. Notably in this relationship it is the patient that seeks the expertise of the clinician, who in his capacity possesses the unique competency to attack and encroach the patients body. If you believe you may have something, then waiting for the results of your blood test can generate a great amount of anxiety. Certainly, this test does not create a disproportionate criterion against which doctors are judged; merely the standard of an average doctor is engaged. The Bolam Test. The claimant remarked that consultants should have awaited the result and thus avoided any needless damage to her left vocal cord. 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. For medical negligence claims, its important to have evidence in support of your case. This involved a histopathologist who failed to diagnose a malignant melanoma. Simply put, the Bolam Test was essentially that the body of professionals themselves were the best people . Take a look at some weird laws from around the world! Before Bolam - the traditional view It may also mean that you incur costs that you would not have done if you hadnt been injured or made ill. For this reason, youre entitled to claim compensation for these additional costs incurred. The House of Lords, in Maynard[44], discussed the general principles relating to the standard of care in medical negligence cases and confirmed the locus classicus of Bolam. 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. He flailed about violently before the procedure was stopped, and he suffered some serious injuries, including fractures of the acetabula. Conversely, the medical practitioner will dislike and disparage any attempt to undermine the notion that the doctor knows best. However, before the therapy, the doctor didnt give him muscle relaxants to prevent muscle contractions or spasms, despite knowing that these can occur as a result of ECT and have a risk of causing fractures. 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]. 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. This site needs JavaScript to work properly. government site. 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]. This includes: However, it has been argued that there are limits to informed consent. 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. As part of your claim, you will usually be invited to an independent medical assessment. 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. Furthermore, it can be beneficial if youre concerned about the legal costs often associated with legal representation. 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. In order to prove liability in Negligence, the claimant must show on the balance of probabilities that: the defendant owed a duty of care, breached that duty by failing to meet the standard of care required and as a result the claimant suffered loss or damage which is not too remote. A patients perspective is concerned with autonomy. Attempts by the courts to move away from Bolam are discussed and the difficulties encountered because of the reluctance of the appellate courts to approve such decisions. official website and that any information you provide is encrypted The .gov means its official. Holding on too much to precedent even where it will lead to injustice is likely to infringe on one's fundamental human rights. call us on: 100% No Win, No Fee Claims 10 January, 2013. Distinguishing Between Employees Workers and Self Employed. Functional test automation uses a computer to run test cases, which saves time, effort and increases overall testing capacity and accuracy. Has Bolitho affected assessment of the appropriate standard of medical care? 24 The Ropewalk It is likely that Bolam will be of no or limited application where the issues in the case concern advice and/or consent to treatment, pure diagnosis or, where it is agreed that the alleged conduct, if proved, would be negligent. National Library of Medicine As it was, Kerr J felt bound by the law as it currently stands and thus he considered that his approach to the case had to be by reference to a possible invocation of the Bolitho exception (which unsurprisingly was invoked). Moreover, the Bolam test implies a high threshold for potential claimants, thus thwarting superfluous claims and to some extent relieving the ill equipped NHS of any unnecessary anxieties. All rights reserved 2022. Doctors had not warned Mr Bolam about the risks involved. As Breier-Mackie reports, to claim that patients have autonomy is to argue that they have the capacity and right to decide for themselves the values and rules that will govern their existence[12]. Ultimately, it was on this divergence of opinion that the defendant doctor was able to successfully refute the negligence claims. However, it can provide information on the extent to which you suffered as a result of your healthcare providers actions. This resulted in cerebral palsy. This test was applied to determine the doctor's standard of care in relation to the treatment and information given to the patient. the court uses the Bolam test.1 This article explores the limits of the Bolam test, and examines the recent shift in the way the legal stan-dard should be determined in medical litigation. For instance, you may go to the hospital with a badly crushed and broken arm. The depth of experience in our Clinical Negligence Team allows us to meet all levels of requirement. They are available 24/7 to either answer your questions or determine whether the claim you hold is valid. Testing Is Not Always Definitive. Even when the Bolam test proves that the medical professional caused your injuries, you won't automatically receive a compensation payment. The Court saw no reason why this approach should be maintained. A doctor will be judged to have come up to the required standard of clinical care if a reasonable body of medical opinion, albeit a minority one, would find his/her actions acceptable. Bolam test has been adopted for decades in various cases. Considering the medical archetype often entails determinations that are inextricably linked with the physical autonomy, this life plan is hindered; self determination is thus undermined in medical negligence cases. They stated that any histopathologist acting with reasonable care and skill could have made the same mistake. One of the recent cases includes the case of Middleton (by his Father and Litigation Friend, Gavin Middleton) v Ipswich Hospital NHS Trust, the claimant brought a claim for damages for clinical negligence from the defendant NHS Trust. Were fully committed to handling personal information youve supplied to us in compliance with the latest GDPR laws, and well never share your details. Attempts by the courts to move away from Bolam are discussed and the difficulties encountered because of the reluctance of the appellate courts to . The evidence you provide wont necessarily prove that negligence occurred. Further, it cannot be said that the doctor was negligent in his duty to the patient simple because there is a body of opinion taking a contrary view[36]. 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. 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. The Bolam v Friern Hospital Management Committee [1957] WLR 582 is a case between a patient and mental health facility. On the other hand Teff offers a slightly altered viewpoint suggesting that it is impertinent to see the doctor patient relationship as simply strife ridden. The issue was rather whether the conduct though wrong, fell short of actionable negligence. However, these are cases where the experts cannot both be correct. In particular, the Muller v Kings College Hospital NHS Trust [2017] QB 987 case. The Bolam case concerned a depressed patient who was voluntarily undergoing electro convulsive therapy at a mental health institution. 1985 Sep;11(3):135-7. doi: 10.1136/jme.11.3.135. During the procedure Mr Bolam violently convulsed and flailed about violently and dangerously, injuring himself in several different places before the procedure was stopped - including a fracture in his hip. Bolam, prima facie, fails to attach the appropriate weight to patient rights with importance fastened, instead, to the role of the doctor. As case law has developed, so have the principles underpinning the issue of breach of duty in medical negligence cases. We understand that we have covered a lot of information so if you have any questions, please dont hesitate to get in touch with our team. Prior to the case reaching the House of Lords, the first instance judge decided to, erroneously, choose between the conflicting testimonies. 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 . The area enclosing these two antithetical concepts is enmeshed with multifaceted issues. The test for this was first set out in the case of Bolam v Friern Hospital Management . Hull GP Dr Thomas Abraham looks back at the 60-year history of the Bolam test, which has underpinned doctors' defence against medical negligence claims almost since the NHS began. The medical professionals carrying out the therapy did not give Mr Bolam any muscle relaxant and his body was not restrained in any way. *You can also browse our support articles here >. 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. In Bolam there was an issue of information disclosure (consent). Failure to diagnose an ectopic pregnancy causing infertility. Case of Bolam v Friern Hospital Management a debilitating effect on the medical practitioner dislike. Can provide information on claiming Compensation for a breach of medical judgment is essential Bolam any relaxant... 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