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Legal standard of care: A shift from the traditional Bolam test

Article in Clinical medicine (London, England) · September 2003

DOI: 10.7861/clinmedicine.3-5-443 · Source: PubMed

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n PROFESSIONAL ISSUES

Legal standard of care: a shift from

the traditional Bolam test

Ash Samanta and Jo Samanta

ABSTRACT – An essential component of an action Bolam – the traditional view Ash Samanta
in negligence against a doctor is proof that the MD FRCP LLB,
doctor failed to provide the required standard of In 1954, John Hector Bolam underwent electro- Consultant
care under the circumstances. Traditionally the convulsive therapy (ECT) for clinical depression. At Rheumatologist,
standard of care in law has been determined that time, medical opinion differed on how best Lead Clinician for
to minimise the risk of injuries possible from con- Clinical
according to the Bolam test. This is based on the
vulsions induced by ECT. In Mr Bolam’s case, the Governance,
principle that a doctor does not breach the legal
technique of manual restraint was ineffective and as Musculoskeletal
standard of care, and is therefore not negligent, if Directorate,
the practice is supported by a responsible body of a result he fractured his pelvis. He subsequently
Leicester Royal
similar professionals. The Bolam principle, how- argued that the doctor had been in breach of the
Infirmary
ever, has been perceived as being excessively standard of care in providing treatment, and that
the hospital had been negligent. Jo Samanta
reliant upon medical testimony supporting the
The locus classicus of the test for the standard of BA(Hons), Solicitor,
defendant. The judgment given by the House of Lecturer in Law, De
Lords in the recent case of Bolitho imposes a care in law, required of a doctor, developed from this
Montfort University,
requirement that the standard proclaimed must be landmark case. Mr Justice McNair, in his direction to
Leicester
justified on a logical basis and must have consid- the jury, said:
ered the risks and benefits of competing options. [a doctor] is not guilty of negligence if he has acted in Clin Med
The effect of Bolitho is that the court will take a accordance with the practice accepted as proper by a 2003;3:443–6
more enquiring stance to test the medical evidence responsible body of medical men skilled in that particular
offered by both parties in litigation, in order to art …Putting it the other way round, a man is not negli-
reach its own conclusions. Recent case law shows gent, if he is acting in accordance with such a practice,
how the court has applied the Bolitho approach in merely because there is a body of opinion who would take
determining the standard of care in cases of clin- a contrary view.
ical negligence. An understanding of this approach
and of the shift from the traditional Bolam test is It follows that if a medical practice is supported by
relevant to all medical practitioners, particularly in a responsible body of peers, then the Bolam test is
a climate that is increasingly litigious. satisfied and the practitioner has met the required
standard of care in law. This test has been applied on
KEY WORDS: Bolam test, Bolitho, clinical numerous occasions in cases of medical litigation.
negligence, legal standard of care, medical A strong endorsement of this test was provided in
litigation the House of Lords by Lord Scarman in the case of
Maynard.2 His Lordship stated:
In medical litigation, the central question that arises I have to say that a judge’s ‘preference’ for one body of dis-
is whether or not a doctor has attained the standard tinguished professional opinion to another also profession-
of care that is required by law. The standard expected ally distinguished is not sufficient to establish negligence in
is one of ‘reasonable care’. This needs to be judged a practitioner whose actions have received the seal of
by taking into account all the circumstances sur- approval of those whose opinions, truthfully expressed and
rounding a particular situation, and by balancing the honestly held, were not preferred. …For in the realm of
diversity inherent in medical practice against the diagnosis and treatment negligence is not established by
interests of the patient. In determining the standard, preferring one respectable body of professional opinion to
the court uses the Bolam test.1 another.2
This article explores the limits of the Bolam test,
and examines the recent shift in the way the legal stan- The reason for his Lordship taking such a view is
dard should be determined in medical litigation. The that there are, and always will be, differences of
implications of this are relevant to all medical practi- opinion and practice within the medical profession.
tioners, particularly in a climate that is increasingly One answer exclusive of all others is seldom the
litigious. solution to a problem that requires professional

Clinical Medicine Vol 3 No 5 September/October 2003 443

Ash Samanta and Jo Samanta

judgement. A court may prefer one body of medical opinion to A body of medical opinion supported this as being in the ‘best
another, but that does not amount to a conclusion of clinical interests’ of the patient. In an ethical matter such as this, should
negligence. it not be the court that decides what is in the patient’s best
In practical terms, the effect of the Bolam test is that a finding interests? However, in Re F, the decision was left to medical
of negligence is not made where the defendant doctor has professionals:
acted in accordance with a responsible body of medical opinion.
[A] doctor can lawfully operate on, or give other treatment to, adult
This test has been repeatedly approved at appellate level and is
patients who are incapable, for one reason or another, of con-
enshrined in law.
senting…provided that the operation or other treatment concerned is
in the best interests of such patients.10
Criticisms of the Bolam test
The Bolam test would appear to have crossed the boundaries
The principal criticism of the Bolam test is that it fails to draw a of diagnosis and treatment, as well as the limits of medicine,
distinction between ‘what is done’ and ‘what ought to be done’. thereby enlarging the role of the doctor to that of a moral
Whether an action is negligent or not should be judged against arbiter.6
a standard of what ought to be done.3 Something which is done, The ubiquitous application of the Bolam principle has made
even if by most people, could still be negligent if it falls below the this the litmus test for the standard of care in every issue
standard of what ought to be done. The Bolam test is seen as surrounding medical litigation, including ethical issues. Some
stating the standard of care as dependent upon what is done, legal academics perceive this as an undue reliance on medical
thereby allowing medical practitioners to set for themselves the testimony and an insufficient focus on the interests of the
legal standard by eliciting the support of ‘a responsible body of patient. The mere invocation of Bolam could be enough to
medical men’. Should this be allowed in medicine when this is defeat claims sufficiently contestable to reach the courts.11
clearly not the case in other areas of professional liability, where Should this be the case when clearly the standard of care is a
the expected standard of the defendant is a matter that is set by question of reasonableness? Should it not be left to the court to
the court?4 appraise what would be reasonable under the circumstances,
The approval of practice by responsible medical peers may be and to state the expected standard, thus defining the boundaries
the only way to set the standard in matters requiring technical of reasonable conduct?
knowledge and expertise. The Bolam test has been justifiably It is unlikely that in Bolam the judge meant that compliance
applied to cases of medical litigation involving diagnosis2 and with a body of medical practice was conclusive in terms of
treatment.5 However, is this the correct test for information dis- escaping liability for negligence. In his summing up, he stated:
closure to patients, or for all matters pertaining to medical inter- If the result of the evidence is that you are satisfied that his practice is
vention in persons unable to give valid consent? These are issues better than the practice spoken of on the other side, then it is really the
involving ethics and the fundamental rights of individuals. stronger case.1
Critics have argued that the court should set the standard in
such cases, rather than a body of medical opinion, no matter This seems to leave open the possibility of the court having a
how responsible or authoritative.6 more active role in setting the standard of care by objectively
In Sidaway,7 a case concerning the level of information that evaluating the practice proffered by each of the parties.
should have been disclosed to a patient, the speech of Lord
Bridge in the House of Lords is particularly apposite:
Bolitho: the dawn of a new era
Whether non disclosure in a particular case should be condemned as a
breach of the doctor’s duty of care is an issue to be decided primarily on Bolitho was a clinical negligence case that reached the House
the basis of expert medical evidence, applying the Bolam test.7 of Lords. The central legal issue was whether or not non-
intervention by a doctor caused the plaintiff ’s injury. The speech
This approach has been criticised as being excessively deferen- by Lord Browne-Wilkinson, in the leading judgment, has poten-
tial to medical opinion when balanced against the rights of a tial implications for the way in which the Bolam test might be
patient to be told about the risks and benefits of medical inter- interpreted in the future.
vention.6 This criticism has been vindicated in retrospect. The The facts of the case were that Patrick Bolitho, a two-year-old
doctrine of consent has now evolved in favour of warning the child, suffered catastrophic brain damage as a result of cardiac
patient of all material risks inherent in the proposed treatment.8 arrest due to respiratory failure. The senior paediatric registrar
In modern medical practice, obtaining consent requires not did not attend the child, as she ascribed to a school of thought
only giving a patient information, but also ensuring that the that medical intervention, under those particular circumstances,
patient gives consent with understanding.9 would have made no difference to the end result. Liability was
The Bolam principle has also been applied to the ethical issues denied on the grounds that even if she had attended, she would
inherent in medical interventions performed on mentally not have done anything that would have materially affected the
incapacitated patients unable to give valid consent. In Re F, the outcome. This view was supported by an impressive and respon-
question that arose was whether sterilisation should be per- sible body of medical opinion. In giving judgment, Lord
formed in a 36-year-old patient who had a mental age of five.10 Browne-Wilkinson said:

444 Clinical Medicine Vol 3 No 5 September/October 2003

 Legal standard of care

The court has to be satisfied that the exponents of the body of opinion a coherent reasoned rebuttal. By comparing the evidence in
relied upon can demonstrate that such opinion has a logical basis. In such a way, the court would determine what is the appropriate
particular, in cases involving, as they so often do, the weighing of risks standard of care, using a ‘logical analysis’ approach.
against benefits, the judge before accepting a body of opinion as being Marriott further demonstrates how the Court of Appeal took
responsible, reasonable or respectable, will need to be satisfied that, in a ‘risk analysis’ approach in determining the legal standard.14
forming their views, the experts have directed their minds to the ques- The plaintiff suffered head injuries after a fall and was taken to
tion of comparative risks and benefits and have reached a defensible hospital for investigations, and discharged the next day. At home
conclusion on the matter.12 his condition worsened. His GP did not appreciate the serious-
ness of his condition (the plaintiff had suffered an intracranial
Here is an explicit assertion from the highest judicature in the
bleed) which finally led to residual paralysis and a speech dis-
land that the court may want to look beyond Bolam and actively
order. The defendant’s experts argued that the decision to leave
assess the calibre and merit of the basis on which the standard is
the plaintiff at home could be supported on the grounds that the
proclaimed.
risk of an intracranial lesion was very small. The trial judge,
The key manner by which the judgment in Bolitho might
finding for the plaintiff, said that although the risk was very
impact upon the principle in Bolam is that the court is likely
small,
to take a much more interventionist stand in appraising the
professed standard of care. In practical terms, the first stage the consequences of things going wrong are disastrous to the patient. In
would be for the court to assess whether the decision had such circumstances, it is my view that the only reasonably prudent
responsible peer support, based on an approach that was course … [would be] to readmit for further testing and observation.14
structured, reasoned and defensible. The professed opinion
The judge added that readmission of the patient would have
must withstand ‘logical analysis’. This broadly reflects the Bolam
been particularly appropriate as facilities for further investiga-
test as it is known. The second stage, and this is where Bolitho
tion were relatively easily available. The Court of Appeal
might really take effect, is to assess on a ‘risk analysis’ basis the
approved of this decision on the basis of an appropriate judicial
validity of accepting the treatment or course of action offered by
exercise in determining the required standard of care by using
the defendant and, more importantly, the validity of rejecting
the ‘risk analysis’ approach of Bolitho.
competing decisions. In undertaking such an analysis, the court
In Pearce,15 the issue before the court was whether or not a
may look at a number of factors, including the magnitude of
doctor ought to have informed a pregnant woman at 42 weeks
the risk, the comparative risks of alternative interventions and
of gestation of the additional risk of stillbirth which was
treatments, the seriousness of the consequences, the ease by
inherent in allowing the pregnancy to continue, thus enabling
which the risk might be avoided, and the implications of such
her to make a fully informed choice. Lord Woolf, in the Court of
avoidance in terms of finances and resources of healthcare.
Appeal, said:
[if] there is a significant risk which would affect the judgement of a
Bolitho applied
reasonable patient, then in the normal case it is the responsibility of the
In determining the legal standard of care, the court has shown a
definite movement towards applying the principle enunciated in
Bolitho in recent cases. In Penney,13 three women developed cer-
vical cancer, although cyto-screeners had previously reported
Key Points
their cervical smears as being negative. In preferring the evi- In law, the standard of care in medical litigation is determined
dence provided by experts for the plaintiff, the judge said he did by the Bolam test: a practitioner does not breach the
not consider the evidence provided by the defendant experts as standard if the practice in question is supported by a
responsible body of similar medical peers
standing up to logical analysis because:
[t]here were admitted abnormalities which, to put it most favourably to The court has applied the Bolam test to a wide range of
the cyto-screener, he could not positively have said they were not medical issues, including diagnosis, treatment, information
disclosure and ethics in medicine
pre-cancerous … [Having] regard to the potentially disastrous
consequences of a mistaken identification, a reasonably competent The principal criticism of the Bolam test is that it has
cyto-screener would have classified the smear as borderline.13 extended beyond its intended limits, and allows the
standard in law to be set subjectively by doctors
This decision was upheld in the Court of Appeal and, in giving
judgment, Lord Woolf said: The case of Bolitho imposes a requirement for an explanation
of the ‘logical basis’ underlying the standard of care that is
In resolving conflicts of expert evidence, the judge remains the judge; he proclaimed
is not obliged to accept evidence simply because it comes from an illus-
trious source; he can take account of demonstrated partisanship and The effect of Bolitho is that the court will enquire more
closely into the justification of a defendant doctor’s
lack of objectivity.
practice, based on a logical analysis of why such an
opinion was formed, as well as a risk analysis against
This demonstrates that a coherent and reasoned opinion of a
competing options
suitably qualified expert will be weighed and considered against

Clinical Medicine Vol 3 No 5 September/October 2003 445

 Ash Samanta and Jo Samanta

doctor to inform that patient of that significant risk, if the information on good practice would enable the court to utilise the Bolitho
is needed so that the patient can determine for himself or herself as to principle more proactively in setting the expected standard of
the course he or she should adopt.15 care required of doctors, in cases of medical litigation. In other
words, it may no longer be sufficient for a practitioner’s actions
The Court went on to say: to be Bolam-defensible. The court would seek to determine
[t]he doctor, in determining what to tell a patient, has to take into whether such action is Bolitho-justifiable.
account all the relevant considerations, which include the ability of the The traditional Bolam test is unlikely to survive in its basic
patient to comprehend what he has to say to him or her. form. Medical practitioners should recognise that the time has
come to say ‘byebye to Bolam’,11 and to take account of the new
This pronouncement reinforces the contention that peer requirements created by Bolitho.
approval of medical practice alone would not be sufficient to
satisfy the standard in law. Furthermore, it places the patient’s
right to self-determination as foremost, and it is likely that the Acknowledgements
Human Rights Act 1998 will require judges to pay even more We are grateful to Michael Gunn (Professor of Law and
attention to the rights of claimants. Associate Dean, Nottingham Law School), John Feehally
(Professor of Renal Medicine, University of Leicester) and Kent
Conclusion Woods (Professor of Therapeutics, University of Leicester) for
their helpful comments on an earlier draft of this paper.
In medical litigation, the test for the standard of care in law
expected of doctors is based on the principle enunciated in
Bolam. Put at its simplest, the test is that a medical practitioner References
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446 Clinical Medicine Vol 3 No 5 September/October 2003

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