Company Registration No: 4964706. 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. Do you have a 2:1 degree or higher? Free resources to assist you with your legal studies! Many have disagreed with this and were concerned that allowing such an action could lead to doctors withdrawing treatment for mentally handicapped patients. Hence as Illich attests, an individual’s wellbeing is akin to ‘the degree of lived freedom’ [14] . Registered Data Controller No: Z1821391. Several schools of thought recognised that the treatment caused severe muscular spasms and consequently administered muscle relaxants. 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]. The main source of discontent was the apparent judicial abdication of the power to determine the standard of care required to avoid negligence liability. 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. If you are a member and need specific advice relating to your own circumstances, please contact one of … Shaw, M. (1999) Treatment Decisions in Young People: The Legal Framework. Prior to these comments, in Salmond’s 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] . It could also lead to claims against doctors for disclosing too much information as in some instances the disclosure might cause psychiatric harm to the patient. & Lachs, M. S. (1992) Should patients with Alzheimer’s disease be told their diagnosis? 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. 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] . 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. D. Mehl, et … 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] . Generating the most equitable outcome is much more difficult in both practice and theory. 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. Criticism on Bolam Test In England. The Bolam test which demonstrates that a medical practitioner is incapable of negligence if his actions are certified as suitable by a ‘responsible body of medical opinion’ [3] enhances this impression. The patient in this case displayed the symptoms of Tuberculosis, but the doctors could not rule out several other illnesses. Furthermore, Brazier’s findings suggest that the principle of beneficence, not autonomy, promotes a middle ground in battles against medical paternalism. Here a breach is revealed once a doctor has descended below the recognised standards of practice on the clinical scale and consequently, by act or omission, inflicted some sort of detriment upon the patient. British Journal of Hospital Medicine, 52, 235-239, Lloyd A. Lord Scarman recognised, in this case, the therapeutic privilege which entitles a doctor to withhold information from a patient. Brazier characterises the paternalism trend as becoming an archaic ideology and indicative of a primitive mindset, commenting specifically on the fundamental disparities between the notions of paternalism and beneficence [27] . VAT Registration No: 842417633. The surgeon’s duty of care. 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] . The anaesthetist did not administer muscle relaxation before the procedure 2. Hence, he argued for greater patient empowerment to rekindle the principle of the autonomous being. According to an article published by the Department of Health in 1990 patient’s have the right to refuse treatment or withdraw previously give consent. Concerns were raised, when the 2005 Act was being enacted, that the insertion of s28 into the Act might allow a patient suffering from anorexia nervosa to refuse to be force fed, which could ultimately lead to the death of the patient. In the later stages, due to the variety of cases that came in front of the court, the courts had decided to loosen this test so that cases such as the Bolam’s case can be decided. In a discipline like Medicine, there are diverse practices followed by doctors, but mere conformity with one of these practices cannot amount to negligence. 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. New England Journal of Medicine, 326, 947–951, Fennell, P, Treatment without Consent: Law, Psychiatry and the Treatment of Mentally Disordered People since 1845, Waddington History of Psychiatry.1996; 7: 480-481. 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. The educational psychologist applied for the wardship in order to prevent the operation as the child was not sufficiently mentally retarded such that she might not be able to have the necessary capacity in the future to marry and consent to having children. 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. 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. He alleged that if the hospital had done this he would not have been injured by flailing around and that due to their negligence he ought to be entitled to compensation. The claimant remarked that consultants should have awaited the result and thus avoided any needless damage to her left vocal cord. Despite the fact that several cases have overruled Bolam the courts are still insistent that the plaintiff must establish causation in order to hold the doctor as responsible for the outcome of the treatment. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. Cancer patients’ perceptions of their disease and its treatment. The Bolam Test is a means of assessing clinical negligence in Court. balance of probabilities while the Bolam test permits a minority view to be determinative, Otton LJ was reluctant to dismantle Bolam further for fear that it would degenerate into a ‘head count’ of opinion: ‘The issue whether or not to operate could not be determined by counting heads. 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. The courts also feel that senior medical professionals would become more powerful and that junior doctors would veer away from challenging any mistakes made by the senior doctors. He noted that many did not fully understand the prognosis of their condition or the treatment that the doctors were proposing. In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health Authority[3]. Dickenson, D. (1994) Children’s informed consent to treatment: is the law an ass? 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] . 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. This has been particularly the case in relation to the sterilisation of those who are mentally handicapped. I liked John-Paul Swoboda’s description of this process as “the deep ossification of the Bolam test in the common law” in his excellent recent article on Bolam … This will be discussed in more detail further into this study. It was impossible for the patient in this case to give informed consent as he lacked the capacity to communicate in anyway. Mr Bolam sought compensation on the basis that his anaesthesia had been negligent because: 1. Ways in which doctors might avoid a claim for negligence. 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]. 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. This outlook propagandises communitarianism [31] and enhances the prospects of Stirrat and Gill’s charge that the doctor patient relation should be perceived as a covenant [32] . REINING IN THE BOLAM TEST - Volume 57 Issue 2 - JOHN KEOWN. Mason & McCall Smith, Law and Medical Ethics, 5th Ed 1999, Butterworths. McNair J defined what is meant by negligence in relation to situations where specific expertises are required, differentiating this scenario to the ‘test of the man on top of a Clapham omnibus’ [33] . An obligation to give a patient all the information available to the doctor would often be inconsistent with the doctor’s contractual obligation to have regard to the patient’s best interests. A patient may feel his autonomy is being crippled by the purported omniscience of a practitioner. 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. That is not to say that paternalism is fruitless and ineffectual in all scenarios. Consideration will be given to the standard of care patients have received as well as causation in situations where clinical negligence as been averred. Critical analysis of the ‘Bolam’ principle. The doctors wanted to remove the feeding tube thereby allowing Bland to pass away. Positioned against the backdrop of the sacred doctor-patient relationship, the potency of the ‘Bolamise’ [4] canon within this realm is imperative for this moot. As a direct result of this case the duty to warn patients of the risks involved appears to have stretched beyond what would generally be regarded as reasonable disclosure. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. In the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital[2] Lord Diplock , Lord Templeman and Lord Scarman all affirmed the application of the Bolam principle. They stated that doctors should weigh up factors such as fear and depression to determine how the disclosure might affect the patient. The ‘Bolam’ principle was based on the case of Mr Bolam who suffered from serious injury as a result of electroconvulsive therapy (ECT) in 1954. In these studies the authors concluded that it was impossible to assert with authority that the patients had given informed consent to the treatment as many of those who participated in the research did not seem to fully understand the information they had been given. The sentinels of the medical field, namely doctors, are positioned in a jeopardous environment that warrants protection. In this case he gave a hypothetical account of when he would regard a doctor to not be held liable. Company Registration No: 4964706. This intrinsic empathy for medical practitioners entails a deep understanding of the fallibility of the profession. A test that arose from English tort law, which is used to assess medical negligence. Poetica 64, 2005 Plotting Early Modern London, ed. This was emphasised in the case of South Australian Asset Management Corp v York Montague Ltd[29] in which Lord Hoffman made the point that it would be wrong to hold a doctor responsible for an unforeseeable event. In this case the plaintiff had been a voluntary patient at mental health institution that was run by the defendant. This ‘disequilibrium of power’ [21] purports possible scope for misuse or application of power. 23rd Jul 2019 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. This is not an example of the work produced by our Law Essay Writing Service. A principal battleground: Paternalism at odds with Autonomy. *You can also browse our support articles here >. Other fields face a more stringent analysis by judges in an effort to guarantee that expert testimony is reasonable under the circumstances. Moreover, Brazier has recently [28] advocated for patients to assume responsibility as quickly as they are to invoke their rights. In this case Lord Browne-Wilkinson reminded the court that they are. 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. The Bolam Test has formed the backdrop to all clinical negligence cases since 1957, providing a cornerstone for the defence of these claims. This same view was used in helping the court to decide on whether it was lawful to discontinue feeding a patient who was in a persistent vegetative state. Blyth v Bloomsbury Health Authority [1993] laid down the things that a doctor ought to consider in determining what information should be disclosed. PMID: 7776780 No abstract available. Superspecialists and the Bolam test Lancet. The realm of informed consent has been raised not only in cases of treatment of patients but has also been raised over the removal of organs from bodies during post mortem examinations. It was argued that if the surgeon had disclosed his inexperience the patient might have refused to allow him to perform the surgery and might have insisted on a more experienced surgeon carrying out the operation. British Journal Cancer 1988;58:355–8. In reaching his decision McNair J accepted the evidence from the expert witnesses that the general consensus of the medical profession was against the use of relaxant drugs and that using restraints could increase the risk of fractures rather than prevent them. 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. Considering the notion of autonomy only picked up pace towards the early 1960s, Bolam was simply seen as reinforcing the law and any yielding by the judiciary was due to factors such as ‘seniority, reputation and performance in court’ [40] . The Bolam test was first recognised in the case of Bolam vs Friern Hospital Management Committee. Add this result to my export selection Towards a … 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] . In connection to medical law, individuals should have the liberty to mediate on matters concerning their wellbeing. To establish that trust you must respect patients’ autonomy—their right to decide whether or not to undergo any medical intervention . 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. Bolam test is a test that can only be carried out on a professional defendant to identify whether he or she has breached their duty of care. Moreover, the patient has not been warned of the potential for physical injury resulting from the treatment. 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. Bolam, prima facie, fails to attach the appropriate weight to patient rights with importance fastened, instead, to the role of the doctor. 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 patient in this case displayed the symptoms of … 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. Title: The impression gained thus far is that, while the courts are increasingly determined to see the Bolam (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118) principle is not extended, they still have an innate reluctance to abandon it in respect of medical opinion (Mason & McCall Smith’s; Law and Medical Ethics (7th ed) page 317) Critically discuss this statement with reference to standard of care and causation in clinical negligence. Take a look at some weird laws from around the world! Since most doctors learn through practical experience this could be denied to them if the courts were to follow the model established in Australia and insist on doctors disclosing their level of expertise to the patients. Dworkin continues, envisaging autonomy as the capability to ruminate desires as ‘what makes an individual…is his life plan’ and in pursuit of autonomy a person truly ‘gives meaning to his life’ [17]. Conversely, the medical practitioner will dislike and disparage any attempt to undermine the notion that the ‘doctor knows best’. The test is derived from Bolam v Friern Hospital Management Committee [1957] 1 WLR 583. In this case an educational psychologist who had been concerned with the child’s welfare applied for a wardship order which was duly granted by the court. Nonetheless, set against the backdrop of Hippocrates’ 5th Century clinical pledge, paternalism is also heavily rooted in the consequentialist moral theory of utilitarianism [9] . Conversely, a doctor may argue that if the patient wishes to regain his health, then his wishes match that of the medical profession. 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. Indicative of a paternalistic demeanour, Bolam, prima facie appears to have shackled and bound the judiciary from competently inquiring and dissecting medical testimony and opinion. London: FOCUS, The Royal College of Psychiatrists’ Research Unit. This realistic and impartial argument recognises that ultimately, both the doctor and the patient seek the customary target of rejuvenating the individual. 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. This Bolam case has been a matter of sustained criticism. It is submitted that that the latter concept expects clinicians to channel any manoeuvre in a manner beneficial to the patient. 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, … In Airedale NHS Trust v Bland[23] the doctors were seeking an order from the court to be able to remove the feeding tube. Additionally, to impose upon an individual actions that are manifestly contrary to their convictions is to dethrone their integrity, which in turn is to lose something of great value [23] . You can view samples of our professional work here. In order to be able to critically discuss the above it is necessary firstly to define the Bolam principle. 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. Free resources to assist you with your legal studies! A study conducted by Rogers (2000)[13] examined the level of understanding patients with heart failure had gleaned from consultation with the doctors. The plaintiff also claimed negligence on the grounds that the doctors had failed to warn him of the possible risks involved. Blyth v Bloomsbury Health Authority (1993) 4 Med LR 151, 157, Bolitho v City and Hackney Health Authority [1998] 2 AC 232, Buchanan, Alec. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Medical law. Re B (A Minor) (Wardship: Sterilisation) [1987] 2 All ER 206, Re D (A Minor) (Wardship: Sterilisation) [1976] 1 All ER 326, Re KB (adult) (mental patient: medical treatment) (1994) 19 BMLR 144, Re M (A Minor) (Wardship: Sterilisation) [1988] 2 FLR 497, Re W (a minor) medical treatment: court’s jurisdiction) [1993] Fam 64, [1992] 4 All, Rogers AE, Addington-Hall JM, Abery AJ, et al. The very concept of the medical province is to alleviate, cure and prevent harm. 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. Any guidance is intended as general guidance for members only. He stated in this case that if a mountaineer had sought an opinion about the condition of a his knee before attempting to climb a mountain and the doctor declared his knee to be fit but then the mountaineer suffers an injury not related to his knee, such as a landslide, then the doctor should not be liable for the injuries sustained. 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