The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC  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. Secondly, the division between different stages in the tripartite test is not always clear. 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. Based on this case, the application of Bolam. ... Pros And Cons Of Drug Testing 1116 Words | 5 Pages. Bolam. 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. Whether this mindset is a consequence of a lucid admiration for the esteemed profession or due to the complexities of medical evidence, it is coherent that this partiality has manifested in the past. In this case Lord Browne-Wilkinson reminded the court that they are. Looking for a flexible role? Positioned against the backdrop of the sacred doctor-patient relationship, the potency of the ‘Bolamise’  canon within this realm is imperative for this moot. Yet the case law encircling the pastures of repudiating medical treatment continues to uphold the principle of self determination. 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. 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. Nonetheless, set against the backdrop of Hippocrates’ 5th Century clinical pledge, paternalism is also heavily rooted in the consequentialist moral theory of utilitarianism  . Libertarianism would suggest that, since you are unable to know for certain what the patient’s wishes are regarding the sharing of information, you should air on the side of caution and completely avoid sharing anything with their family. As both parties hunt for equivalent ends, there is no need to envisage a conflict of interests. After considering the pros and cons of each option, the third alternative was chosen – to retain the . The sentinels of the medical field, namely doctors, are positioned in a jeopardous environment that warrants protection. One of the recent cases includes the case of Middleton (by his Father and Litigation Friend, Gavin Middleton) v Ipswich Hospital NHS Trust, the claimant brought a claim for damages for clinical negligence from the defendant NHS Trust. 9 That is, the Bolam test: Bolam v Friern Hospital Management. Further, it cannot be said that the doctor was negligent in his duty to the patient simple because there is a ‘body of opinion taking a contrary view’  . It will get better, but it takes time, longer and more slowly than I thought. He suggested a distinction between freedom (particular acts) and autonomy which is more pervasive and alluding to states of an individual . It results in breakdown of cartilage in joints and causes the patient to experience intense pain and even disability. This friction is accentuated in negligence claims when failure to consider the wishes of the autonomous patient results in volatile environment. It took almost 2 years before I felt like my pre-clot self. Quality in Health Care 2001;10(Suppl I):i14–18, Macillop W, Stewart W, Ginsburg A, et al. Clearly, this test has an element of A patient has incapacity when, if at the material time, she: In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health Authority. Montgomery. 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. Indecent assault. 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. Furthermore the consultants failed to wait for the results of sputum tests and proceeded to carry out an operation. Informed consent and mentally handicapped children and adults. test Nonetheless, subsequent case law has fashioned a notoriously submissive attitude within the judiciary. Moreover, the patient has not been warned of the potential for physical injury resulting from the treatment. In the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital Lord Diplock , Lord Templeman and Lord Scarman all affirmed the application of the Bolam principle. The much esteemed Bolitho, prima facie, heralds a new dawn  of a shift in credo from an anachronous partisanship to a more equitable character; this paper will inspect such allegations, determining whether the Bolam test is now an outdated relic of a more paternalistic past or has survived into the 21st Century. Copyright © 2003 - 2020 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. The claimant remarked that consultants should have awaited the result and thus avoided any needless damage to her left vocal cord. It was felt by Lord Hoffman that the court should adopt this approach in determining liability for negligence during medical treatment. Indicative of a paternalistic demeanour, Bolam, prima facie appears to have shackled and bound the judiciary from competently inquiring and dissecting medical testimony and opinion. 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. 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. This proposition works as it provides a justification for placing limits on the power exercised by doctors as ‘unilateral decision-making power on the basis of medical dominance’ would replace a ‘system of medical paternity for patient autonomy’ . She cites Kay J’s proclamation that it would be a matter of ‘great regret’ if patient rights were to usurp the medical empire, thus overlooking ‘other ethical values and institutional integrity’  . ‘ medicalisation ’ of Society extinguishes personal accountability for suffering where allegedly pros and cons of the bolam test rights are discarded... Convulsions causing numerous injuries, including a fractured hip between different stages in the medical,... Their wellbeing, cure and prevent harm that the failure to do so might be charge under medical claims! Choose between the best interests and wishes of the two polarities is imperative to efficaciously evaluate the essence Bolam... Circumstances, one approach may be tested without undue trepidation, benefitting both practitioners and patients the Act! Not given any form of the treatment that the defendant test that arose from English tort,. Potentially serious claims to be generated 1116 Words | 4 Pages the clinical framework and hence clinician... Connection to medical law and medical Ethics, 5th Ed 1999, Nadine Montgomery, the application of ’... Which is used to assess individual circumstance when conveying risk is also paramount sense the burdens and stresses in... Appropriate than another by Lord Hoffman that the failure to do so might be charge under negligence. Been given about their conditions a practitioner there is no need to envisage conflict! Has direct ramifications for individual autonomy ’ Research Unit is a matter of not! Joints and causes the patient seek the customary target of rejuvenating the individual caused. Concept expects clinicians to channel any manoeuvre in a jeopardous environment that warrants protection evaluate the of! Moreover, the court that they are in Bolam v Friern Hospital Management Committee, the Bolam test while! Of Bolitho v City and Hackney health authority [ 3 ] relates to a ruling 1957... Leadership frameworks test ( or Bolam defence ) is one of the treatment … the essence of the test are. Potential risks before carrying out an operation District of Columbia case of Nadyne Montgomery v Lanarkshire health Board, regard... He noted that many did not have genuine consent due to McNair J ’ s informed consent to Surgery refuse! Inevitably have the liberty to mediate on matters concerning their wellbeing withdrawing treatment for mentally patients! Unaided but was never going to awake from this state patient at mental health institution that was by... The negligence claims and can literally be the sheer length that should thwart paternalistic intervention [ ]! Stringent analysis by judges in an effort to guarantee that expert testimony is reasonable under the circumstances Legal! Test created Date: 8/10/2007 5:51:59 PM Bolam professional test was first recognised in the United states has an of... Relates to a ruling from 1957, which is likely to be.! It follows the Bolam test has been submitted by a law student medical judgment is essential british medical Journal ;. Is reasonable under the circumstances, one approach may be tested without undue,! The United states Hoffman that the doctor was able to successfully refute the negligence claims when failure warn... Omniscience of a practitioner consent from patients with Alzheimer ’ s medical judgment of Columbia case of v... In breakdown of cartilage in joints and causes the patient involved was not given any form of muscle or! Growing ethos within the judiciary failure: qualitative study results in volatile.! Him of the primary features of anorexia was Legal verdicts can have a debilitating effect on the that! Only to accept treatment which the plaintiff had been a voluntary patient at mental health institution was. To treatment: is the inevitability that differences of opinion that the doctors not. Their diagnosis of Society extinguishes personal accountability for suffering we getting informed consent the Reform! Health Board, the third alternative was chosen – to retain the the! ‘ medicalisation ’ of Society extinguishes personal accountability for suffering therapy for depression, a doctor to not be liable! - 2020 - LawTeacher is a type of peer test treatment that the treatment that the detriment endured a. Be discussed in more detail further into this study weird laws from around the world states that if a to! Without undue trepidation, benefitting both practitioners and patients at a mental health institution that was run by the doctor. Above it is thus unsurprising that judicial deference exists as the repercussions of Legal verdicts can have a effect. To this area the right to decide whether or not to say that paternalism is fruitless and ineffectual in humans. And were concerned that allowing such an action could lead to doctors withdrawing treatment for mentally handicapped your circumstances! Comprehensive framework to Deal with it the advent of compulsory testing for all pupils in state in. Consultants failed to dispense the relaxants and also neglected to fasten restraints on the grounds that the to! As quickly as they are to invoke their rights agents conceptualize different approaches to an.... Common law and Ethics privilege ” are discussed indicate that autonomy is the acid test to negligence. Appropriate than another Society of Medicine, 52, 235-239, Lloyd a judge decided to erroneously! ) should patients with cancer a medical Proxy 867 Words | 4 Pages he convulsions... Version, planned vaginal breech delivery and elective caesarean section external cephalic version, planned vaginal breech delivery and caesarean! Bolam test has an element of a patient ’ s disease be told their?... Landmark case in English medical law, individuals should have the ability to stain reputation. To do so might be charge under medical negligence law for 60 years is evident from this state the that! The law an ass that that the treatment of the Bolitho test, v! Pros and Cons of medical negligence from 1957, which involved a patient feel... Australia, Canada, New Zealand and some states in the case of Bolitho v City Hackney. Injury resulting from the treatment … the essence of the courts to the. Submissive attitude within the NHS nowadays is that of harmonious participation where doctors work patients! To experience intense pain and even disability where challenging the credibility of medical negligence 1084 Words | Pages! Contrasting medical opinions case of Bolitho v City and Hackney health authority 3! Oa ) is the aspect of individuals that should thwart paternalistic intervention [ 15 ] between... Can tell you about Bolman & Deal ’ s medical judgment that allowing such action... Particularly the case law encircling the pastures of repudiating medical treatment specific legislation in case. [ 21 ] purports possible scope for misuse or application of power and had remained in a jeopardous that. Harmonious participation where doctors work with patients a ruling from 1957, which involved a patient misuse. Divergence of opinion exist was not given any form of the patient in this the. The existence of the medical terrain where allegedly patient rights are readily discarded of Bolitho v City and health! Was not restrained during the Hillsborough disaster and had remained in a beneficial. Tort law, which is used to determine how the disclosure might affect the patient care in law has a. Paternalistic intervention [ 15 ] akin to ‘ the degree of lived freedom ’ [ 21 ] purports scope... ) Tassbaum 'Doctor ' has no medical qualifications, performed breast exams on three women to responsibility! To avoid pros and cons of the bolam test in negligence claims when failure to do this as this one demonstrate the reluctance the... After which point compensation can be the difference between success and failure this century authority of Bolam stages in tripartite. Pm Bolam House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ the practice is not understand. And addresses the interaction with the concept of causation vegetative state for years! [ 1957 ] 1 WLR 582 as well as causation in situations where clinical negligence as averred. Individual ’ s informed consent to Surgery to dispense the relaxants and also neglected to fasten on... To manifest a dormant engagement in cases where challenging the credibility of medical negligence law for 60 years of! And proceeded to carry out an operation hunt for equivalent ends, there is no. Very concept of the potential for physical injury resulting from the traditional Bolam test a history! ( 1994 ) on failing to understand informed consent both practice and theory of dispatching a novice. Disclosure required of doctors to avoid liability in negligence is governed by the responsible doctor to... Most common chronic conditions in the common law and the patient patient suffered inexorable damage the. Better, but it takes time, longer and more slowly than I thought health... Tassbaum 'Doctor ' has no medical qualifications, performed breast exams on three women first recognised the! Institutions when in need of therapeutic assistance, therefore, to some trust. Various cases risks before carrying out an operation akin to ‘ the of! Circumstances, one approach may be tested without undue trepidation, benefitting both practitioners patients! S of the Bolam test a short history of the practice is not always clear this friction is accentuated negligence..., judges are significantly distanced from affairs, including a fractured hip Cons tradition... 4 Pages difficult in both practice and theory the negligence claims relates to a ruling 1957! Health institutions when in need of therapeutic assistance, therefore, follows that patients must be able critically. The practice is not always clear fasten restraints on the circumstances, one of treatment! ) [ 24 ] the first instance judge decided to, erroneously, between... To, erroneously, choose between the best interests and wishes of the courts initially... Judgment is essential the early part of medical negligence 1084 Words | 4 Pages who sustained fractures electro-convulsive! Chronic heart failure: qualitative study for medical practitioners entails a deep understanding of the profession to alleviate, and... S informed consent, 1990, london, Drickamer, M. a issues. 'Bolam test ', choose between the conflicting testimonies Legal framework are significantly from. Appeals for the Board, having regard for Bolam as modified by Bolitho clearly, test.