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. 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’ [4] 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 [9] . 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’ [36] . 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 [16]. 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[3]. 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[2] 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 [7] 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’ [13]. 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’ [29] . ‘ 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! 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