''Bolam v Friern Hospital Management Committee''
9571 WLR 582 is an
English tort law
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requi ...
case that lays down the typical rule for assessing the appropriate standard of reasonable care in
negligence
Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
cases involving skilled professionals such as doctors. This rule is known as the Bolam test, and states that if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent. ''Bolam'' was rejected in the 2015 Supreme Court decision of ''
Montgomery v Lanarkshire Health Board
''Montgomery v Lanarkshire Health Board'' 015UKSC 11is a Scottish delict, medical negligence and English tort law case on doctors and pharmacists that outlines the rule on the disclosure of risks to satisfy the criteria of an informed consent. T ...
'' in matters of informed consent.
Facts
Mr Bolam was a voluntary patient at
Friern Hospital
Friern Hospital (formerly Colney Hatch Lunatic Asylum) was a psychiatric hospital in the parish of Friern Barnet close to a crossroads which had a hamlet known as Colney Hatch. In 1965, it became part of the London Borough of Barnet and in the ...
, a mental health institution run by the Friern
Hospital Management Committee
From the founding of the National Health Service of the United Kingdom in 1948 until the reorganisation in 1974 the hospital management committee was the main instrument of local management. There were originally 377 committees which were answerabl ...
. He agreed to undergo
electro-convulsive therapy
Electroconvulsive therapy (ECT) is a psychiatric treatment where a generalized seizure (without muscular convulsions) is electrically induced to manage refractory mental disorders.Rudorfer, MV, Henry, ME, Sackeim, HA (2003)"Electroconvulsive th ...
. He was not given any
muscle relaxant
A muscle relaxant is a drug that affects skeletal muscle function and decreases the muscle tone. It may be used to alleviate symptoms such as muscle spasms, pain, and hyperreflexia. The term "muscle relaxant" is used to refer to two major therapeu ...
, and his body was not restrained during the procedure. He flailed about violently before the procedure was stopped, and he suffered some serious injuries, including fractures of the
acetabula
The acetabulum (), also called the cotyloid cavity, is a concave surface of the pelvis. The head of the femur meets with the pelvis at the acetabulum, forming the hip joint.
Structure
There are three bones of the ''os coxae'' (hip bone) that ...
. He sued the committee for compensation. He argued they were negligent for:
# not issuing relaxants
# not restraining him
# not warning him about the risks involved.
At this time, juries were still being used for tort cases in England and Wales, so the judge's role would be to sum up the law and then leave it for the jury to hold the defendant liable or not.
Judgment
McNair J at the first instance noted that expert witnesses had confirmed, much medical opinion was opposed to the use of relaxant drugs, and that manual restraints could sometimes increase the risk of fracture. Moreover, it was the common practice of the profession to not warn patients of the risk of treatment (when it is small) unless they are asked. He held that what was common practice in a particular profession was highly relevant to the standard of care required. A person falls below the appropriate standard, and is negligent, if he fails to do what a
reasonable person
In law, a reasonable person, reasonable man, or the man on the Clapham omnibus, is a hypothetical person of legal fiction crafted by the courts and communicated through case law and jury instructions.
Strictly according to the fiction, it is ...
would in the circumstances. But when a person professes to have professional skills, as doctors do, the standard of care must be higher. "It is just a question of expression", said McNair J.
"I myself would prefer to put it this way, that he is not guilty of negligence
Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying:
“I do not believe in anaesthetic
An anesthetic (American English) or anaesthetic (British English; see spelling differences) is a drug used to induce anesthesia — in other words, to result in a temporary loss of sensation or awareness. They may be divided into two ...
s. I do not believe in antiseptic
An antiseptic (from Greek ἀντί ''anti'', "against" and σηπτικός ''sēptikos'', "putrefactive") is an antimicrobial substance or compound that is applied to living tissue/skin to reduce the possibility of infection, sepsis, or putre ...
s. I am going to continue to do my surgery in the way it was done in the eighteenth century.” That clearly would be wrong."
In this case, the jury delivered a verdict in favour of the defendant hospital. Given the general medical opinions about what was acceptable electro-shock practice, they had not been negligent in the way they carried out the treatment. That passage is quoted very frequently, and has served as the basic rule for professional negligence over the last fifty years.
Significance
''Bolam'' was re-examined and revised in the 2015 Supreme Court decision of ''
Montgomery v Lanarkshire Health Board
''Montgomery v Lanarkshire Health Board'' 015UKSC 11is a Scottish delict, medical negligence and English tort law case on doctors and pharmacists that outlines the rule on the disclosure of risks to satisfy the criteria of an informed consent. T ...
''.
The law distinguishes between liability flowing from acts and omissions, and liability flowing from misstatements. The ''Bolam'' principle addresses the first element and may be formulated as a rule that a
doctor
Doctor or The Doctor may refer to:
Personal titles
* Doctor (title), the holder of an accredited academic degree
* A medical practitioner, including:
** Physician
** Surgeon
** Dentist
** Veterinary physician
** Optometrist
*Other roles
** ...
,
nurse
Nursing is a profession within the health care sector focused on the care of individuals, families, and communities so they may attain, maintain, or recover optimal health and quality of life. Nurses may be differentiated from other health c ...
or other health professional is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners adopt a different practice. In addition, ''
Hedley Byrne & Co. Ltd. v Heller & Partners Ltd.''
964AC 465 created the rule of "reasonable reliance" by the claimant on the professional judgment of the defendant.
"Where a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, and a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise."
Because of the nature of the relationship between a medical practitioner and a patient, it is reasonable for the patient to rely on the advice given by the practitioner. Thus, ''Bolam'' applies to all the acts and omissions constituting
diagnosis
Diagnosis is the identification of the nature and cause of a certain phenomenon. Diagnosis is used in many different disciplines, with variations in the use of logic, analytics, and experience, to determine " cause and effect". In systems engin ...
and consequential treatment, and ''Hedley Byrne'' applies to all advisory activities involving the communication of diagnosis and
prognosis
Prognosis (Greek: πρόγνωσις "fore-knowing, foreseeing") is a medical term for predicting the likely or expected development of a disease, including whether the signs and symptoms will improve or worsen (and how quickly) or remain stabl ...
, giving of advice on both therapeutic and non-therapeutic options for treatment, and disclosure of relevant information to obtain
informed consent
Informed consent is a principle in medical ethics and medical law, that a patient must have sufficient information and understanding before making decisions about their medical care. Pertinent information may include risks and benefits of treatme ...
.
*''
Barnett v Chelsea & Kensington Hospital''
968
Year 968 ( CMLXVIII) was a leap year starting on Wednesday (link will display the full calendar) of the Julian calendar.
Events
By place Byzantine Empire
* Emperor Nikephoros II receives a Bulgarian embassy led by Prince Boris (th ...
1 All ER 1068. Three men attended at the
emergency department
An emergency department (ED), also known as an accident and emergency department (A&E), emergency room (ER), emergency ward (EW) or casualty department, is a medical treatment facility specializing in emergency medicine, the acute care of pati ...
but the casualty officer, who was himself unwell, did not see them, advising that they should go home and call their own doctors. One of the men died some hours later. The post mortem showed arsenical poisoning which was a rare cause of death. Even if the deceased had been examined and admitted for treatment, there was little or no chance that the only effective antidote would have been administered to him in time. Although the hospital had been negligent in failing to examine the men, there was no proof that the deceased's death was caused by that negligence.
*''
Whitehouse v Jordan
''Whitehouse v. Jordan'' 9811 All ER 267: The claimant was a baby who suffered severe brain damage after a difficult birth. The defendant, a senior hospital registrar, was supervising delivery in a high-risk pregnancy. After the mother had been i ...
''
981
Year 981 ( CMLXXXI) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar.
Events
Births
* Abu'l-Qasim al-Husayn ibn Ali al-Maghribi, Arab statesman (d. 1027)
* Giovanni Orseolo, Venetian ...
1 All ER 267: The claimant was a baby who suffered severe brain damage after a difficult birth. The defendant, a senior hospital
registrar
A registrar is an official keeper of records made in a register. The term may refer to:
Education
* Registrar (education), an official in an academic institution who handles student records
* Registrar of the University of Oxford, one of the se ...
, was supervising delivery in a high-risk
pregnancy
Pregnancy is the time during which one or more offspring develops ( gestates) inside a woman's uterus (womb). A multiple pregnancy involves more than one offspring, such as with twins.
Pregnancy usually occurs by sexual intercourse, but ca ...
. After the mother had been in
labour
Labour or labor may refer to:
* Childbirth, the delivery of a baby
* Labour (human activity), or work
** Manual labour, physical work
** Wage labour, a socioeconomic relationship between a worker and an employer
** Organized labour and the labour ...
for 22 hours, the defendant used
forceps
Forceps (plural forceps or considered a plural noun without a singular, often a pair of forceps; the Latin plural ''forcipes'' is no longer recorded in most dictionaries) are a handheld, hinged instrument used for grasping and holding objects. Fo ...
to assist the delivery. The Lords found that the doctor's standard of care did not fall below that of a reasonable doctor in the circumstances and so the baby was awarded no compensation.
*''
Sidaway v Bethlem Royal Hospital Governors''
985
Year 985 ( CMLXXXV) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* Summer – Henry II (the Wrangler) is restored as duke of Bavaria by Empress Theoph ...
AC 871: The claimant suffered from pain in her
neck
The neck is the part of the body on many vertebrates that connects the head with the torso. The neck supports the weight of the head and protects the nerves that carry sensory and motor information from the brain down to the rest of the body. In ...
, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression, but did not include in his explanation the fact that in less than 1% of the cases, the said decompression caused paraplegia. She developed paraplegia after the spinal operation. Rejecting her claim for damages, the court held that consent did not require an elaborate explanation of remote side effects. In dissent, Lord Scarman said that the Bolam principle should not apply to the issue of informed consent and that a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed.
*''
Maynard v West Midlands Regional Health Authority''
985
Year 985 ( CMLXXXV) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* Summer – Henry II (the Wrangler) is restored as duke of Bavaria by Empress Theoph ...
1 All ER 635. The patient presented with symptoms of
tuberculosis
Tuberculosis (TB) is an infectious disease usually caused by '' Mycobacterium tuberculosis'' (MTB) bacteria. Tuberculosis generally affects the lungs, but it can also affect other parts of the body. Most infections show no symptoms, in ...
but both the consultant physician and the consultant surgeon took the view that
Hodgkin's disease
Hodgkin lymphoma (HL) is a type of lymphoma, in which cancer originates from a specific type of white blood cell called lymphocytes, where multinucleated Reed–Sternberg cells (RS cells) are present in the patient's lymph nodes. The condition wa ...
,
carcinoma
Carcinoma is a malignancy that develops from epithelial cells. Specifically, a carcinoma is a cancer that begins in a tissue that lines the inner or outer surfaces of the body, and that arises from cells originating in the endodermal, mesodermal ...
, and
sarcoidosis
Sarcoidosis (also known as ''Besnier-Boeck-Schaumann disease'') is a disease involving abnormal collections of inflammatory cells that form lumps known as granulomata. The disease usually begins in the lungs, skin, or lymph nodes. Less commonly af ...
were also possibilities, the first of which if present would have required remedial steps to be taken in its early stages. Instead of waiting for the results of the sputum tests, the consultants carried out a
mediastinoscopy
Mediastinoscopy is a procedure that enables visualization of the contents of the mediastinum, usually for the purpose of obtaining a biopsy. Mediastinoscopy is often used for staging of lymph nodes of lung cancer or for diagnosing other conditio ...
to get a biopsy. The inherent risk of damage was to the left
laryngeal recurrent nerve, even if the operation was properly done. In the event, only tuberculosis was confirmed. Unfortunately, the risk became a reality and the patient suffered a paralysis of the left vocal cord. The decision of the physician and the surgeon to proceed was said by their expert peers to be reasonable in all the circumstances.
*''
Hotson v East Berkshire Area Health Authority
''Hotson v East Berkshire Area Health Authority'' 9872 All ER 909 is an English tort law case, about the nature of causation. It rejects the idea that people can sue doctors for the loss of a chance to get better, when doctors fail to do as good ...
''
9872 All ER 909. The extent of the hip injuries to a 13-year-old boy was not diagnosed for five days. By the age of 20 years, there was deformity of the hip joint, restricted mobility and permanent disability. The judge found that even if the diagnosis had been made correctly, there was still a 75% risk of the plaintiff's disability developing, but that the medical staff's breach of duty had turned that risk into an inevitability, thereby denying the plaintiff a 25% chance of a good recovery. Damages included an amount of £11,500 representing 25% of the full value of the damages awardable for the plaintiff's disability. On appeal to the Lords, the question was whether the cause of the injury was the fall or the health authority's negligence in delaying treatment, since if the fall had caused the injury the negligence of the authority was irrelevant in regard to the plaintiff's disability. Because the judge had held that on the balance of probabilities, even correct diagnosis and treatment would not have prevented the disability from occurring, it followed that the plaintiff had failed on the issue of causation. It was therefore irrelevant to consider the question of damages.
*''
Wilsher v Essex Area Health Authority
''Wilsher v Essex Area Health Authority'' 988AC 1074 is an English tort law case concerning the "material increase of risk" test for causation.
Facts
The defendant hospital, initially acting through an inexperienced junior doctor, negligently ...
''
988AC 1074 The defendant hospital, initially acting through an inexperienced junior doctor, negligently administered excessive oxygen during the post-natal care of a premature child who subsequently became blind. Excessive oxygen was, according to the medical evidence, one of five possible factors that could have led to blindness and, therefore, the Lords found that it was impossible to say that it had caused, or materially contributed, to the injury and the claim was dismissed. In a minority view, Mustill LJ. argued that if it is established that conduct of a certain kind materially adds to the risk of injury, if the defendant engages in such conduct in breach of a common law duty, and if the injury is the kind to which the conduct related, then the defendant is taken to have caused the injury even though the existence and extent of the contribution made by the breach cannot be ascertained.
*''
Bolitho v City and Hackney Health Authority
''Bolitho v. City and Hackney Health Authority'' 9964 All ER 771 is an important English tort law case, on the standard of care required by medical specialists. It follows the Bolam test for professional negligence, and addresses the interactio ...
''
997
Year 997 (Roman numerals, CMXCVII) was a common year starting on Friday (link will display the full calendar) of the Julian calendar.
Events
By place
Japan
* 1 February: Empress Teishi gives birth to Princess Shushi - she is the first ...
4 All ER 771: A two-year-old boy suffered
brain damage
Neurotrauma, brain damage or brain injury (BI) is the destruction or degeneration of brain cells. Brain injuries occur due to a wide range of internal and external factors. In general, brain damage refers to significant, undiscriminating t ...
as a result of the
bronchial
A bronchus is a passage or airway in the lower respiratory tract that conducts air into the lungs. The first or primary bronchi pronounced (BRAN-KAI) to branch from the trachea at the carina are the right main bronchus and the left main bronchus. ...
air passages becoming blocked leading to
cardiac arrest
Cardiac arrest is when the heart suddenly and unexpectedly stops beating. It is a medical emergency that, without immediate medical intervention, will result in sudden cardiac death within minutes. Cardiopulmonary resuscitation (CPR) and possib ...
. It was agreed that the only course of action to prevent the damage was to have the boy
intubated
Intubation (sometimes entubation) is a medical procedure involving the insertion of a tube into the body. Patients are generally anesthetized beforehand. Examples include tracheal intubation, and the balloon tamponade with a Sengstaken-Blakemo ...
. The doctor who negligently failed to attend to the boy said that she would not have intubated had she attended. There was evidence from one
expert witness
An expert witness, particularly in common law countries such as the United Kingdom, Australia, and the United States, is a person whose opinion by virtue of education, training, certification, skills or experience, is accepted by the judge as ...
that he would not have intubated whereas five other experts said that they would have done so. The
House of Lords
The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
held that there would have to be a logical basis for the opinion not to intubate. This would involve a weighing of risks against benefit in order to achieve a defensible conclusion. This means that a judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which is 'logically indefensible'. This has been interpreted as being a situation where the Court sets the law not the profession.
*''
Albrighton v RPA Hospital'',
['' Albrighton v RPA Hospital'' (1980) 2 NSWLR 542. ]Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
(NSW, Australia). where a patient in Royal Prince Alfred Hospital who had been born with a spinal problem had her spinal cord totally severed leaving her a paraplegic.
Reynolds JA rejected the proposition that doctors could not be negligent if they acted in accordance with the usual and customary practice and procedure in their “medical community”, holding that "it is not the law that, if all or most of the medical practitioners in Sydney habitually fail to take an available precaution to avoid foreseeable risk of injury to their patients, then none can be found guilty of negligence".
[''Albrighton v Royal Prince Alfred Hospital'' 9802 NSWLR 542 at pp 562-3 (29 September 1980) ]NSW Court of Appeal
The New South Wales Court of Appeal, part of the Supreme Court of New South Wales, is the highest court for civil matters and has appellate jurisdiction in the Australian state of New South Wales.
Jurisdiction
The Court of Appeal operates pursu ...
.
*''
F v R'',
[''F v R'' (1983) 33 ]SASR
The Special Air Service Regiment, officially abbreviated SASR though commonly known as the SAS, is a special forces unit of the Australian Army. Formed in 1957, it was modelled on the Special Air Service, British SAS sharing the motto, "Who ...
189 Full Court Supreme Court (SA, Australia). Where
Chief Justice King
King is the title given to a male monarch in a variety of contexts. The female equivalent is queen, which title is also given to the consort of a king.
*In the context of prehistory, antiquity and contemporary indigenous peoples, the tit ...
said, "In many cases an approved professional practice as to disclosure will be decisive. But professions may adopt unreasonable practices. Practices may develop in professions, particularly as to disclosure, not because they serve the interests of the clients, but because they protect the interests or convenience of members of the profession. The court has an obligation to scrutinize professional practices to ensure that they accord with the standard of reasonableness imposed by the law. A practice as to disclosure approved and adopted by a profession or section of it may be in many cases the determining consideration as to what is reasonable. On the facts of a particular case the answer to the question whether the defendant’s conduct conformed to approved professional practice may decide the issue of negligence, and the test has been posed in such terms in a number of cases. The ultimate question, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community."
Misfeasance
Where it can be shown that the decision-maker was not merely negligent, but acted with "malice", the tort of "misfeasance in public office" may give rise to a remedy. An example might be a prison doctor refusing to treat a prisoner because he or she had previously been difficult or abusive. Although proof of spite or ill-will may make a decision-maker's act unlawful, actual malice in the sense of an act intended to do harm to a particular individual, is not necessary. It will be enough that the decision-maker knew that he or she was acting unlawfully and that this would cause injury to some person, or was recklessly indifferent to that result.
*''
Palmer v Tees Health Authority''
998
Year 998 ( CMXCVIII) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* Spring – Otto III retakes Rome and restores power in the papal city. Crescenti ...
All ER 180; (1999) Lloyd’s Medical Reports 151 (CA) A psychiatric out-patient, who was known to be dangerous, murdered a four-year-old child. The claim was that the defendant had failed to diagnose that there was a real, substantial, and foreseeable risk of the patient committing serious sexual offences against children and that, as a result, it had failed to provide any adequate treatment for him to reduce the risk of him committing such offences and/or to prevent him from being released from the hospital while he was at risk of committing such offences. But the court struck out the claim on the grounds that there was no duty of care towards the child, as any child, at any time, was in the same danger. Furthermore, as the patient did not suffer from a treatable mental illness, there was no legal right to either treat or detain the person.
*''
Akenzua v Secretary of State for the Home Department''
002 002, 0O2, O02, OO2, or 002 may refer to:
Fiction
*002, fictional British 00 Agent
*''002 Operazione Luna'',
*1965 Italian film
*Zero Two, a ''Darling in the Franxx'' character
Airports
*0O2, Baker Airport
*O02, Nervino Airport
Astronomy
*1996 ...
EWCA Civ 1470, (2003) 1 WLR 741 where a dangerous criminal due to be deported, was released by the police/immigration services to act as an informant and killed a member of the public. The Lords held that if a public officer knows that his or her acts and omissions will probably injure a person or class of persons, the public body (or the state) will be liable for the consequences. In this case, it was arguable that there had been an illegal use of the power to permit the deportee to remain at liberty and that the officials exercising that power must have known that it was illegal. Given the criminal's record, the officials must at least have been reckless as to the consequences. For these purposes, it was not necessary to prove foresight that a particular individual might be at risk: it was enough that it was foreseeable that the criminal would harm somebody. ''Palmer'' was distinguishable because the relevant officials had the power to detain and deport the dangerous person.
See also
*
English tort law
English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requi ...
*
Breach of duty in English law
In English tort law, there can be no liability in negligence unless the claimant establishes both that they were owed a duty of care by the defendant, and that there has been a breach of that duty. The defendant is in breach of duty towards the ...
*''
F v R''
*''
Shakoor v Situ''
Notes
References
*Brazier, M. (2003). ''Medicine, Patients and the Law''. Third Edition, Harmondsworth: Penguin Books.
*Jones, M. (2003). ''Medical Negligence''. Third Edition London: Sweet & Maxwell.
*Kennedy, I & Grubb, A. (2000). ''Medical Law''. Third Edition. London: Butterworths.
*Mason, J. K. & Laurie, G. T. (2003). "Misfeasance in Public Office: An Emerging Medical Law Tort?" 11 ''Medical Law Review'' 194.
*Mason, J. K. & Laurie, G. T. (2005). ''Mason and McCall-Smith's 'Law and Medical Ethics''. Seventh Edition. Oxford: Oxford University Press.
*Robertson, Gerald B. (1981). "Whitehouse v Jordan: Medical Negligence Retried". 44 ''Modern Law Review'' 457–461.
External links
The Bolam judgment
{{English law types
English tort case law
Mental health legal history of the United Kingdom
High Court of Justice cases
1957 in British law
1957 in case law
Legal tests