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Bolam to Bolitho - Understanding Clinical Negligence in the UK


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The realms of medical law and patient care in the United Kingdom have been significantly shaped by two landmark cases: Bolam v. Friern Hospital Management Committee (1957) and Bolitho v. City and Hackney Health Authority (1997). These cases have established and then refined the tests for clinical negligence, setting precedents that continue to influence how medical professionals' actions are judged in the eyes of the law. 

 


The Bolam Test: Establishing a Standard for Clinical Negligence

The Bolam case arose from an incident in 1954 involving John Bolam, a patient who suffered fractures during electro-convulsive therapy (ECT) at Friern Hospital in London. At the time, it was not common practice to use muscle relaxants or restraints during ECT, nor was it standard to specifically warn patients of the risk of fractures. Bolam, alleging that the lack of these precautions constituted negligence, brought a case against the hospital.

 

The ruling of the case introduced what is now known as the "Bolam test" for establishing clinical negligence. Mr. Justice McNair, in his instructions to the jury, outlined that a doctor is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Simply put, if a significant number of esteemed practitioners would have acted in the same way under similar circumstances, the defendant would not be found negligent.

 

The essence of the Bolam test lies in its deference to clinical judgment and the recognition of differing opinions among professionals in the field. This standard emphasised the importance of peer approval and set a precedent that, for decades, would protect medical practitioners from negligence claims, provided their actions could be justified by a body of medical opinion.

 

The Bolitho Case

The Bolitho case, decided forty years after Bolam, revisited and refined the criteria for assessing clinical negligence. The case involved Patrick Bolitho, a child who suffered catastrophic brain damage following a delay in intubation by a paediatric registrar, leading to his death. The Bolitho estate argued that if the child had been intubated earlier, he would have survived, claiming negligence on part of the health authority.

 

In this case, the House of Lords introduced a modification to the Bolam test, adding a layer of judicial oversight to the process. It was held that, while the medical profession's opinion is highly relevant, it is ultimately up to the court to decide whether the body of opinion relied upon is reasonable and responsible. The Bolitho ruling clarified that if the court concludes that the professional opinion is not capable of withstanding logical analysis, the court is entitled to find the defendant negligent.

 

This addendum to the Bolam test means that it is not enough for a group of medical practitioners to simply agree on a course of action. Their consensus must also be based on a foundation of logic and reasonableness when scrutinised by the court. The Bolitho ruling thus introduces a safeguard against unquestioning acceptance of medical opinions, ensuring that responsible and defensible reasoning underpins clinical decisions.


Conclusion

The Bolam and Bolitho cases collectively form the cornerstone of clinical negligence law in the UK, balancing the autonomy and expertise of medical professionals with the need to protect patients from substandard care. Bolam set the stage by establishing peer professional approval as a shield against negligence claims, while Bolitho refined this test by ensuring that such professional consensus must also be logically defensible. These legal frameworks ensure a nuanced approach to evaluating clinical negligence, respecting both the complexity of medical practice and the rights of patients to safe and informed care.


Author

A photo of Scott Harding Lister, Director at Apex Health Assoicates

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