The Bolam Test in Clinical Negligence

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.

• Correct identification of the relevant issues
• Accurate knowledge and understanding of the law
• Structured and reasoned arguments and a logical conclusion
• Critical analysis of the relevant issues
• Clarity of expression
• Reference to legal authority
• Appropriate level of research

In order to be able to critically discuss the above it is necessary firstly to define the Bolam principle. This will enable the reader to see the importance of the principle and the reasoning behind the reluctance of the courts to abandon the principle entirely. 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. 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. This will be discussed in more detail further into this study. Consideration will be given to the standard of care patients have received as well as causation in situations where clinical negligence as been averred. 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.

The Bolam principle

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. In this case the plaintiff had been a voluntary patient at mental health institution that was run by the defendant. Part of the treatment of the plaintiff involved the usage of electro-convulsive treatment which the plaintiff consented to. It was the contention of the plaintiff that the hospital had been negligent in not giving him any relaxant drugs or restraining him during the treatment. 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 plaintiff also claimed negligence on the grounds that the doctors had failed to warn him of the possible risks involved.

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. 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. The conclusion reached was that the hospital could only be regarded as negligent if the doctor failed to carry out the procedure in variance to how another medical professional would have done.

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. Lord Diplock commented that the doctor was right to refuse to warn the patient of the possible complications. In his summing up he stated

“The only effect that mention of risks can have on the patient’s mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient’s interest to undergo. 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. The Bolam test should be applied.”

Lord Templeman went further in affirming the fact that there are times when the doctor’s would be justified in not warning a patient of the inherent risk. In his speech he stated

“I do not subscribe to the theory that the patient is entitled to know everything nor to the theory that the doctor is entitled to decide everything…The doctor, obedient to the high standards set by the medical profession impliedly contracts to act at all times in the best interests of the patient. 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. 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. Some information might confuse, other information might alarm a particular patient. 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.

Lord Scarman recognised, in this case, the therapeutic privilege which entitles a doctor to withhold information from a patient. Cases such as this one demonstrate the reluctance of the courts to reject the principles established by Bolam.

In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health Authority^[3]. In this case Lord Browne-Wilkinson reminded the court that they are

“not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice”.

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. It was the contention of Lord Browne-Wilkinson that

“The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas.”

Informed consent

The principle of informed consent has been established from the recognition that every individual has the right to decide what treatment they wish to receive and the right to refuse treatment even in cases where the treatment might be essential to the preservation of their life. 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. 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. To establish that trust you must respect patients’ autonomy—their right to decide whether or not to undergo any medical intervention . . .”(They) . . . must be given sufficient information, in a way that they can understand, in order to enable them to make informed decisions about their care^[6].”

Doctors that fail to obtain informed consent from a patient can face claims for negligence and further sanctions from the GMC. Where the GMC feel that the negligence warrants such measures they have the power to remove a doctor or medical practitioner from the register essentially stopping these persons from being able to continue in their profession. In general terms a patient can either claim battery if they can prove that the procedure was performed without their consent or they can claim for negligence if they can show that the information they were given was insufficient for them to be able to give informed consent. 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.

It has been argued that in the UK there is no defined legal right in relation to informed consent, however protection has been offered through the Human Rights Act 1998 giving individuals a recognised autonomy over their own bodies. 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. 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. The Royal College of Surgeons^[10] were also acutely aware of the need for better information to be given to patient’s and produced their own advisory leaflet in 1997 entitled The surgeon’s duty of care. This was aimed at reassuring patient’s of the standard of care they can expect when undergoing invasive treatment. It is evident from this that although there is no specific legislation in this area the right to informed consent is recognised.

The fight against informed consent

Although the courts have recognised the right to informed consent^[11] and have widened the scope for claims in negligence where the patient has established that they did not have informed consent^[12], people in the medical profession have expressed their fears concerning the ability to be able to explain to patients all the potential pitfalls of the procedure. Several researchers have conducted studies to determine the comprehension of patients in relation to information they have been given about their conditions. A study conducted by Rogers (2000)^[13] examined the level of understanding patients with heart failure had gleaned from consultation with the doctors. He noted that many did not fully understand the prognosis of their condition or the treatment that the doctors were proposing. Similar findings were made by Macillop et al (1988)^[14] and Sutherland, Lockwood and Till (1990)^[15] in relation to patients suffering from cancer. 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. Lloyd (2001)^[16] noted from his studies that although many patients had had the risks of treatment explained to them they did not fully understand the degree of risk posed by the treatment and they were therefore unable to give full informed consent. 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.

The decision of the court in Rogers v Whittaker 1992 highlighted the legal duty of doctors in relation to the disclosure of information concerning the prognosis and treatment of the patient. 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. Blyth v Bloomsbury Health Authority [1993] laid down the things that a doctor ought to consider in determining what information should be disclosed. In this case the court felt that disclosure should be based on the nature of the proposed treatment as well as the general temperament and health of the patient. Consideration should be given to the patient’s desire for information but not in isolation from the mental state of the individual or their ability to comprehend the information given to them.

Within the area of informed consent further difficulties are added when either the patient is a minor or the patient has a mental condition which prevents them from being able to make rational choices for themselves. This is particularly the case in relation to those who have to be forcibly placed in mental institutions either for their own safety or for the safety of others.

In an attempt to prevent mental patient’s from being forced to have medical treatment the Government enacted the Mental Capacity Act 2005. In s1(2) of the 2005 Act the legislation recognises that a person must be presumed to have capacity unless it is established that he lacks capacity^[17]. 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].

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. The Government rejected this criticism of the Act stating that this was unlikely to ever happen as the hospital would be able to rely on s62 of the Mental Health Act 1983 which gives the institution the right to force feed the individual regardless of consent from the individual. S62 of the 1983 Act allows the hospital to force a patient to have treatment if they can show that it is their belief that stopping treatment would cause severe suffering to the patient. Cases such as Re W^[20] and Re KB^[21] demonstrate the power of the court to order the patient to be force fed. 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. In his summation he observed that one of the primary features of anorexia was

‘a compulsion to refuse treatment or only to accept treatment which is likely to be ineffective. This attitude is part and parcel of the disease and the more advanced the disease, the more compelling it may become^[22].

This has been broadly accepted by the courts as a symptom of the condition and is used in the decision making process as a tool to be used to enforce non consensual treatment of such patients. 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.

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. In Airedale NHS Trust v Bland^[23] the doctors were seeking an order from the court to be able to remove the feeding tube. Bland had been injured during the Hillsborough disaster and had remained in a persistent vegetative state for 3 years. He was able to breathe unaided but was never going to awake from this state. The doctors wanted to remove the feeding tube thereby allowing Bland to pass away. The courts were initially loathe to do this as this was tantamount to killing the patient. By using the analogy with the force feeding of patients with anorexia the courts were able to conclude that the feeding tube could be regarded as medical treatment and that the doctors should be able to discontinue any treatment if there was no beneficial effect from that treatment.

It was impossible for the patient in this case to give informed consent as he lacked the capacity to communicate in anyway. The courts allowed his parents as next of kin to be able to make that decision for him, knowing that the removal of the tube would result in his death. As they were told that there was no possibility of their son ever coming out of this state they felt that it was in his best interests to let him die. Many have disagreed with this and were concerned that allowing such an action could lead to doctors withdrawing treatment for mentally handicapped patients. As yet these fears have been unfounded.

Informed consent and mentally handicapped children and adults

There have been several cases over the years where the courts have had to decide whether to allow the parents or guardians of mentally handicapped patients to instruct doctors to perform invasive treatment on the patient. This has been particularly the case in relation to the sterilisation of those who are mentally handicapped. 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. This was argued in the case of Re D (A Minor) (Wardship: Sterilisation)^[24]. 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 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. 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.

Although the right to reproduce was confirmed by the House of Lords in the case of Re B (A Minor) (Wardship: Sterilisation) [1987]^[25], the local authority applied for wardship so as to force the child to be sterilised. In this case the House of Lords held that as the child was severally mentally handicapped and had no understanding that intercourse could lead to pregnancy it was in the best interests of the child to be sterilised as she would be unable to cope with motherhood or the removal of the child from her care if she were to have a baby. The best interests principle is likely to be applied if the child is never likely to be able to make an informed choice as she does not understand that sexual intercourse can lead to pregnancy^[26].

In such cases it is unlikely that doctors would be likely to face charges of negligence for failing to obtain informed consent as the courts have effectively delegated the informed consent to the parent or guardian of the handicapped 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.

Ways in which doctors might avoid a claim for negligence

In the case of Smith v Tunbridge Wells Health Authority^[27] the court stated that the patient could not be deemed to have given informed consent as the doctors had not properly explained the risks involved. 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. 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.

Reluctance to overrule Bolam

Doctors and the courts are reluctant to overrule Bolam totally especially since it the number of successful claims for negligence has risen dramatically in Australia since the decision of the court in Chappel v Hart^[28]. 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. The extent of the warning that needs to be given in line with the decision of Chappel v Hart has made it easier for patients to be able to successfully prove negligence as many doctors fail to provide the amount of information that this case states needs to be disclosed. In this case the court stated that the doctor should have informed the patient of their lack of experience in performing this particular operation so that they could make their decision as to whether to undergo the operation in the full knowledge of the risks involved. 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.

The UK courts have expressed their concern at the prospect of endorsing this level of disclosure as it could result in young doctors not being given the opportunities to acquire the skills to be able to perform such procedures in the future. 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. 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.

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. 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 he gave a hypothetical account of when he would regard a doctor to not be held liable. 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. It was felt by Lord Hoffman that the court should adopt this approach in determining liability for negligence during medical treatment. 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.

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. 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. 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. Drickamer and Lachs (1992)^[30] made the point that doctors should consider the best interests of the patient in determining whether to disclose the prognosis of the illness to the patient. They stated that doctors should weigh up factors such as fear and depression to determine how the disclosure might affect the patient. 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.

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.

Bibliography

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ER 627

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Footnotes

^[1] Bolam v Frierm Barnet HMC 1957 1 WRL 582

^[2] Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985