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. 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. ... Chester’s ‘consent’ was obtained as an event, a single consultation, with minimal time to allow her to ponder the pros and cons of surgery. A discussion of the two polarities is imperative to efficaciously evaluate the essence of Bolam and later cases. 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. Judgment in the appeal case of Montgomery v Lanarkshire Health Board (Scotland) [2015] was handed down by the Supreme Court last week. This article considers the potentially untapped significance of the Bolitho test, while the Bolam test looks to be facing a challenging twilight. Moreover, Brazier has recently [28] advocated for patients to assume responsibility as quickly as they are to invoke their rights. This case rejected the principles laid down by Bolam and emphasised that the doctors should determine the level of disclosure for each individual patient based on their own evaluation of the ability of the patient to understand what they are being told. This yearning to develop into a transcendental entity, he argued, has resulted in a destruction of our capacity for health and transformed people into consumers. Several generations of women gave up childbirth at home to the medical profession. The essence of the Bolam test (or Bolam defence) is the inevitability that differences of opinion exist. It will also be necessary to discuss the principle of informed consent and examine the decisions that have been reached by the courts since the decision handed down in Bolam. 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. Blyth v Bloomsbury Health Authority [1993] laid down the things that a doctor ought to consider in determining what information should be disclosed. Gestalt Therapy I. 1. ... a small piece of empirical work is presented as an illustration of the pros and cons of such an approach and as a possible springboard for future research. Montgomery. The absolute right to refuse treatment ‘exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent’ [25] . He stated that there are occasions when complications arise in theatre or during the course of the treatment of the patient that cannot be regarded as reasonably foreseeable and therefore allowance should be given for the failure of the doctor to warn of the remote possibility of such complications. In the medical context this naturally pertains to the relationship of the doctor and the patient. Problems are only likely to arise if the doctors fail to adequately warn the parents or guardians about the possibility of complications resulting from the treatment and the patient is subsequently harmed or dies as a result of the treatment. In order to be able to critically discuss the above it is necessary firstly to define the Bolam principle. Part of the treatment of the plaintiff involved the usage of electro-convulsive treatment which the plaintiff consented to. Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1AC 871, Smith v Tunbridge Wells Health Authority (1994) 5 Med LR 334, 339, South Australian Asset Management Corp. v York Montague Ltd. (1996) 3 All ER 365, 371-2, Sutherlund H, Lockwood G, Till J. Indeed a growing ethos within the NHS nowadays is that of harmonious participation where doctors work with patients. The UK Supreme Court Montgomery judgment marks a decisive shift in the legal test of duty of care in the context of consent to treatment, from the perspective of the clinician (as represented by Bolam rules) to that of the patient. Looking for a flexible role? The test of materiality is patient specific 4. Lord Diplock commented that the doctor was right to refuse to warn the patient of the possible complications. 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. Hence, it seemed that Donaldson MR’s declaration at the Court of Appeal stage that ‘the law will not allow the medical profession to play God’ [47] , would be ignored once again and the Bolam test would be perpetuated. Ways in which doctors might avoid a claim for negligence. A… 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] . 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. Many patients with anorexia have tried to argue that force feeding cannot be regarded as treatment however the courts have rejected these arguments and have adopted the stance as regarding the feeding of the patient as treatment. Reference this. 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] . 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] . Bolman & Deal’s four frames are as … It is evident from this that although there is no specific legislation in this area the right to informed consent is recognised. ... Chester’s ‘consent’ was obtained as an event, a single consultation, with minimal time to allow her to ponder the pros and cons of surgery. In connection to medical law, individuals should have the liberty to mediate on matters concerning their wellbeing. However, upon appeal the House retired its option to scrutinise the evidence and simply applied the dictum of Bolam, thus exonerating the defendants. The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC [1] in which the court concluded that a doctor might be able to avoid a claim for negligence if he can prove that other medical professionals would have acted in the same way. 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. 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. Therefore, this asymmetry necessitates for frontier demarcation which is mooted in law and ethics. In Montgomery however, the UK Supreme Court reversed the judgments at first instance and on appeal, making clear that in the UK, the doctor’s duty to advise her patient of the risks of proposed treatment falls outside the scope of the Bolam test. Most educational administration graduate students can tell you about Bolman & Deal’s leadership frameworks. Mr Bolam was not restrained during the procedure 3. 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. Bolam–Bolitho. In a discipline like Medicine, there are diverse practices followed by doctors, but mere conformity with one of these practices cannot amount to negligence. The Bolam test which was derived from the case of Bolam v Friern Hospital Management Committee looks at the opinion and common practices of medical practitioners at that time. . 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. 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. 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. The essence of the Bolam test (or Bolam defence) is the inevitability that differences of opinion exist. The author of this research paper discusses the advantages and disadvantages of using e-recruitment as a form of the job advertisement. General Medical Council. 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. In this case he gave a hypothetical account of when he would regard a doctor to not be held liable. Seeking patients’ consent: the ethical considerations. Blyth v Bloomsbury Health Authority (1993) 4 Med LR 151, 157, Bolitho v City and Hackney Health Authority [1998] 2 AC 232, Buchanan, Alec. Looking for a flexible role? The pathophysiology of OA is not fully understood; therefore, there is currently no cure for OA. The extent of patients’ understanding of the risk of treatments. the Bolam test in this context any longer. A dialogue is required 5. 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. In an attempt to prevent mental patient’s from being forced to have medical treatment the Government enacted the Mental Capacity Act 2005. Gravity. In Airedale NHS Trust v Bland[23] the doctors were seeking an order from the court to be able to remove the feeding tube. Several schools of thought recognised that the treatment caused severe muscular spasms and consequently administered muscle relaxants. 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. Gerald Dworkin’s contributions to this area indicate that autonomy is the aspect of individuals that should thwart paternalistic intervention [15]. Consideration will be given to the standard of care patients have received as well as causation in situations where clinical negligence as been averred. 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. 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. 2004. Bolam test. In a Cochrane review, 17 ECV appeared to be a safe and effective way of reducing the number of elective caesarean sections for breech presentation but there was not enough evidence to quantify serious complications. Dickenson, D. (1994) Children’s informed consent to treatment: is the law an ass? The court applied the Montgomery test and decided that the risk was not material as the claimant was prepared to accept the background risk of having a disabled child, having de facto accepted that risk in relation to a test for Down syndrome (risk of 1 in 1753). 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 such as doctors. It was impossible for the patient in this case to give informed consent as he lacked the capacity to communicate in anyway. Subsequent tests developed in Anns ... the court may deny Caparo of any significance and move towards the Nicholas H approach of weighing up the pros and cons in granting the claim. 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. Justice McNair found that the amount of information given to Mr Bolam accorded with accepted medical practice at the time [3]: 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. This realistic and impartial argument recognises that ultimately, both the doctor and the patient seek the customary target of rejuvenating the individual. Disclaimer: This work has been submitted by a law student. The Bolam test. The Department of Health in 2001[9] also recognised the right to informed consent which resulted in the publication of an advisory leaflet entitled Reference guide to consent for examination or treatment, which was available to anyone about to undergo any form of medical treatment. From the practitioner’s 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. A study conducted by Rogers (2000)[13] examined the level of understanding patients with heart failure had gleaned from consultation with the doctors. This will be discussed in more detail further into this study. He alleged that the failure to warn was negligent. It will get better, but it takes time, longer and more slowly than I thought. Airedale NHS Trust v Bland [1993] A.C. 789. 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. 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. And yet tiny nuances are … Take a look at some weird laws from around the world! 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. He suggested a distinction between freedom (particular acts) and autonomy which is more pervasive and alluding to states of an individual [16]. That is not to say that paternalism is fruitless and ineffectual in all scenarios. S1(3) goes on further to recognise that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success[18], whilst s1(4) confirms that a patient is not to be treated as unable to make a decision merely because he makes an unwise decision[19]. “Mental Capacity, Legal Competence and Consent.” Journal of the Royal Society of Medicine, 920: 415-420. Bolam. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Given the expert medical evidence for the Board, the Bolam test was not met. 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. In this case the doctors had commented to the patient that risks were ‘not uncommon’, but they did not express to the patient the number of occasions were complications had occurred. 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] . It can be concluded from the above that although in some instances there has been a move away from the protection afforded by Bolam the courts are not prepared to totally abolish the ruling as the knock on effect could be devastating for the medical profession. It is unlikely that Bolam will be abolished entirely as the evidence above shows the problems that are likely to occur if the courts took the decision to abolish the ruling. The fragility of this ‘sacred’ relationship and the accompanying risk factors pave the way for potentially serious claims to be generated. 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. PLAY. Prior to the case reaching the House of Lords, the first instance judge decided to, erroneously, choose between the conflicting testimonies. For obstetricians, there are particular implications about maternal choice – Lady Hale’s concurring judgment highlights that doctors should advise on the pros and cons of vaginal delivery and caesarean section in any situation where either mother or child is at greater risk from vaginal delivery. In asserting this Lord Browne-Wilkinson referred to the case of Hucks v Cole[4] where the doctor was found to be negligent in not treating the patient with penicillin despite several other medical practitioners also stating that they would not have used penicillin to treat the patient. 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