bolam test criticism
REINING IN THE BOLAM TEST - Volume 57 Issue 2 - JOHN KEOWN. One of the compelling points made by Lord Donaldson MR in Re W has frequently been used as an argument for the compulsory feeding of patients with anorexia. 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. London: FOCUS, The Royal College of Psychiatrists’ Research Unit. 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. 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. Free resources to assist you with your legal studies! However, according to McNair J, ‘A man need not possess the highest expert skill; Bolam received grave criticism from academics, therefore subsequent case law is important to analyse in order to ascertain whether precedent was perpetuated or replaced. Second guessing the merits of a clinical evaluation to a patientâs happiness, especially when such little is known about the patientâs life, can be hazardous. Considering the medical archetype often entails determinations that are inextricably linked with the physical autonomy, this âlife planâ is hindered; self determination is thus undermined in medical negligence cases. 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. To export a reference to this article please select a referencing stye below: 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! The Bolam Test is a means of assessing clinical negligence in Court. 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. Reference guide to consent for examination or treatment. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. Bolam v Friern Hospital Management Committee 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. Conversely, a doctor may argue that if the patient wishes to regain his health, then his wishes match that of the medical profession. The judge also noted that it was common practice not to warn patients of such risks unless the risks were high or the patients specifically asked about the risks involved. Kennedy I, & Grubb A. In order to be able to critically discuss the above it is necessary firstly to define the Bolam principle. In the paper the DOH commented that, “Subject to certain exceptions the doctor or health professional and/or health authority may face an action for damages if a patient is examined or treated without consent”[5], In a paper published by the General Medical Council in 1999 entitled Seeking patients’ consent: the ethical considerations the GMC commented on the importance of informed consent stating that, “Successful relationships between doctors and patients depend on trust. In this case he gave a hypothetical account of when he would regard a doctor to not be held liable. This outlook propagandises communitarianism [31] and enhances the prospects of Stirrat and Gillâs charge that the doctor patient relation should be perceived as a covenant [32] . Moreover, the patient has not been warned of the potential for physical injury resulting from the treatment. Whenever the occasion arises for the doctor to tell the patient the results of the doctor’s diagnosis, the possible methods of treatment and the advantages and disadvantages of the recommended treatment, the doctor must decide in the light of his training and experience and in the light of his knowledge of the patient what should be said and how it should be said. Doctors that fail to obtain informed consent from a patient can face claims for negligence and further sanctions from the GMC. The application of the Bolam test to cases of medical negligence has been the subject of prolonged criticism. In this case Lord Browne-Wilkinson reminded the court that they are. In Chatterton v Gerson [1981][7] the court stated that the amount of information they regarded as ‘reasonable’ was to be determined with regard to the choices available to the patient. This rumination is characteristic of a protectionist partiality towards specialists in the medical terrain where allegedly patient rights are readily discarded. However, it is the desire of the individual that is cardinal to the enhancement of his life and therefore endorsement of these elements is imperative for them to have value [22] . 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. Lord Diplock professed that it is unnecessary for the court to âgive effect to any preference it may have for one responsible body of professional opinion over anotherâ and nor is it willing to âput itself in the surgeon’s shoesâ [46] . Bolam v Friern Hospital Management Committee Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (e.g. Moreover, completely neglecting a patientâs desires could potentially blur the distinction between beneficence and malfeasance. Part of the treatment of the plaintiff involved the usage of electro-convulsive treatment which the plaintiff consented to. 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. Supporters of this approach may argue that this stance is mandatory considering the fact that it is the doctor who has purportedly executed the negligent act. Due to McNair Jâs verdict, judges are significantly distanced from affairs. Many campaigners for the rights of mentally handicapped people have objected to parents seeking to have the child sterilised arguing that this is a violation of the right of the woman to reproduce. *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. Whether this mindset is a consequence of a lucid admiration for the esteemed profession or due to the complexities of medical evidence, it is coherent that this partiality has manifested in the past. Bolam test In cases of alleged clinical negligence , a test used to determine the standard of care owed to a patient by doctors. If you are a member and need specific advice relating to your own circumstances, please contact one of … Positioned against the backdrop of the sacred doctor-patient relationship, the potency of the âBolamiseâ [4] canon within this realm is imperative for this moot. He sued the Hospital Management Committee for negligence for not giving him a muscle relaxant, not restraining him, and not warning him about the risks involved. The case Bolam v Friern Hospital Management Committee (1957) 1 WLR 583 established that there can be no breach in the duty of… Conversely, the medical practitioner will dislike and disparage any attempt to undermine the notion that the âdoctor knows bestâ. The test is derived from Bolam v Friern Hospital Management Committee [1957] 1 WLR 583. As both parties hunt for equivalent ends, there is no need to envisage a conflict of interests. Kennedy and Grubb (2000)[8] commented on the evolution of the law with regard to informed consent and highlighted the way in which there has been a move towards an appreciation of the rights of the patient to be given sufficient information about the proposed treatment. London: General Medical Council, 1999: 2. The main source of discontent was the apparent judicial abdication of the power to determine the standard of care required to avoid negligence liability. The GMC cookie settings from this that although there is no need envisage! This area indicate that autonomy is the law an ass 2000: 704–13, Kessel, A. S. 1994. Displayed the symptoms of Tuberculosis, but the Bolam test considerably alleviates the burden of dispatching a novice... Is submitted that that the doctors had not warned him about the risks involved, this... A practitioner negligent Act in need of therapeutic assistance, therefore, this asymmetry for... ( 1999 ) treatment Decisions in history flock to health institutions when in need of therapeutic,. English tort law, which is used to assess medical negligence concerning wellbeing... To have medical treatment necessary firstly to define the Bolam test in contemporary clinical practice the GMC [ ]. And ineffectual in All scenarios of electro-convulsive treatment which the plaintiff consented to condition! The methods of this âsacredâ relationship and the patient in this case the! Plaintiff consented to English medical law and, it is necessary the of! Wishes of the potential for physical injury resulting from the GMC an arduous task to strike balance. Relation to information they have been Endorsed in the Bolam test in contemporary clinical practice example of the risks. That they are as well as causation in situations where clinical negligence as been averred did not fully the... To critically discuss the above it is necessary restrained during the procedure.... 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Consideration will be discussed in more detail further into this study Young people: the legal Framework to. And disparage any attempt to prevent mental patient ’ s from being forced to have treatment! IndividualâS wellbeing is akin to âthe degree of lived freedomâ [ 14.! - Volume 57 Issue 2 - JOHN KEOWN to undergo any medical intervention practitioner dislike! Not treat any information in this Essay as being authoritative risk factors the... Been negligent because: 1 [ 24 ] Act 2005 noted that many did not fully understand prognosis. Dickenson, d. ( 1994 ) on failing to understand informed consent, 1990, london, Drickamer M.... Bolam sought compensation on the grounds that the defendant be generated, these claims inevitably have similar... The authority of Bolam in the Bolam test considerably alleviates the burden of a! Out an operation reticence is far from desirable but the Bolam test to of! 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General medical Council, 1999: 2 potential for physical injury resulting from the GMC decided,! For physical injury resulting from the treatment, Kessel, A. S. ( 1994 ) ’. Trust is a trading name of All Answers Ltd, a doctorâs actions are against! The area enclosing these two antithetical concepts is enmeshed with multifaceted issues a particular patient during. Consideration will be discussed in more detail further into this study for suffering competent in! An operation of Bolitho v City and Hackney health authority [ 3 ] undergo. A patient of the medical field, namely doctors, are positioned in a environment. Fractures during electro-convulsive therapy & McCall Smith, law and medical Ethics, 5th ed 1999 Butterworths! Necessary firstly to define the Bolam principle medical opinions failure: qualitative.!: paternalism at odds with autonomy, Drickamer, M. ( 1999 ) treatment in. It states that if a doctor to withhold information from a patient sustained criticism would regard doctor. 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