1 2000 Vol: 188(5):237-240. DOI: 10.1038/sj.bdj.4800441

Law & ethics: The healthcare professional and the Bolam test

This article will cover the history of the tort of negligence and how the judgement in the case of Donoghue v Stevenson enabled the courts to 'develop the law' to allow the concept of a 'duty of care' to develop which was extended to include healthcare professionals. The Bolam test is then described and how it has come to play such a prominent role in assisting the courts to assess if an appropriate standard has been achieved in medical negligence litigation. Attempts by the courts to move away from Bolam are discussed and the difficulties encountered because of the reluctance of the appellate courts to approve such decisions. Finally the recent House of Lords decision in Bolitho v City and Hackney Health Authority is examined and the implications this may have on the Bolam test.

Mentions
Altmetric
References
  1. Donoghue v Stevenson [1932] AC 562 , .
    • . . . Its development can be traced to the House of Lords ruling in the case of Donoghue v Stevenson.1 Despite its relatively recent beginning, Millner has stated that most tort actions in recent times are for negligence.2Donoghue v Stevenson was concerned with what was claimed to be the decomposed remnants of a snail in a bottle of ginger beer . . .
  2. Millner M A. Negligence in Modern Law. Butterworth, 1967 , .
    • . . . Its development can be traced to the House of Lords ruling in the case of Donoghue v Stevenson.1 Despite its relatively recent beginning, Millner has stated that most tort actions in recent times are for negligence.2Donoghue v Stevenson was concerned with what was claimed to be the decomposed remnants of a snail in a bottle of ginger beer . . .
  3. Hatcher v Black. The Times, 2nd July, 1954 , .
    • . . . This was illustrated in 1954, in the case of Hatcher v Black, where Lord Denning, a well-known supporter of the medical profession, described negligence as a 'dagger at the doctor's back.'3 The test which has become the principle by which medical negligence is assessed is known as 'The Bolam' test. . . .
  4. Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 , .
  5. ibid , .
  6. Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635 , .
  7. Whitehouse v Jordan [1981] 1 All ER 267 , .
  8. Sidaway v Bethlem Royal Hospital Governors [1985] 1 All ER 643 , .
  9. Pearson, Royal Commission on Civil Liability and Compensation for Personal Injury 1978 , .
  10. Edward Wong Finance Company Ltd v Johnson Stokes and Masters [1984] 1 AC 296 , .
    • . . . This is shown in Edward Wong Finance Company Ltd v Johnson Stokes and Masters where the Privy Council held that a particular conveyancing practice widely followed in Hong Kong was negligent despite the fact that virtually all other solicitors adopted the same practice.10 Similarly in Re The Herald of Free Enterprise: Appeal by Captain Lewry the Divisional Court found that the practice of failing to check that the doors had been closed was prevalent in most if not all ferries of that class.11 The Court concluded, however, that this was not evidence of the appropriate standard of care, but a failure to apply common sense in respect of elementary precautions required for the safety of the ship and that the practice was negligent. . . .
  11. Re: The Herald of Free Enterprise: Appeal by Captain Lewry. The Independent, 18 December 1987 D Ct , .
    • . . . This is shown in Edward Wong Finance Company Ltd v Johnson Stokes and Masters where the Privy Council held that a particular conveyancing practice widely followed in Hong Kong was negligent despite the fact that virtually all other solicitors adopted the same practice.10 Similarly in Re The Herald of Free Enterprise: Appeal by Captain Lewry the Divisional Court found that the practice of failing to check that the doors had been closed was prevalent in most if not all ferries of that class.11 The Court concluded, however, that this was not evidence of the appropriate standard of care, but a failure to apply common sense in respect of elementary precautions required for the safety of the ship and that the practice was negligent. . . .
  12. Nettleship v Western [1971] 2 QB 691 , .
    • . . . In 1971 the case of Nettleship v Western (concerning a learner driver) showed that people who are learning a skill must exercise the same standard of care as those who are already proficient in that skill.12 A trainee's 'incompetent best' is not good enough . . .
  13. The Road Traffic Act 1972 first extended the notion of compulsory third party cover against death or bodily injury to include a passenger as a 'third party'. The 1988 Road Traffic Act , .
  14. Jones v Manchester Corporation [1952] 2 All ER 125 , .
    • . . . In Jones v Manchester Corporation the Court of Appeal held that inexperience was no defence when a patient died from an excessive dose of anaesthetic administered by an inexperienced doctor.14 The later case of Wilsher v Essex Area Health Authority (1988) confirmed this principle;15 a junior doctor working in a special care baby unit put a catheter into the wrong blood vessel which resulted in excess oxygen and the condition of retrolental fibroplasia; and the baby subsequently became blind . . .
  15. Wilsher v Essex Area Health Authority [1988] 2 WLR 557 , .
    • . . . In Jones v Manchester Corporation the Court of Appeal held that inexperience was no defence when a patient died from an excessive dose of anaesthetic administered by an inexperienced doctor.14 The later case of Wilsher v Essex Area Health Authority (1988) confirmed this principle;15 a junior doctor working in a special care baby unit put a catheter into the wrong blood vessel which resulted in excess oxygen and the condition of retrolental fibroplasia; and the baby subsequently became blind . . .
  16. The concept of Wednesbury unreasonableness is one which is derived from the administrative law case of Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) in which it was decided the correct basis upon which the exercise of a public law power by a local authority might be challenged , .
    • . . . Apart from a limited number of cases the courts have shown themselves to be reluctant to choose between different bodies of expert medical opinion mindful of their own lack of medical knowledge unless the opinion of a doctor or group of doctors was 'Wednesbury unreasonable,' ie a view such as no reasonable doctor could have held.16 Lord Green's much quoted test, which has become known as the test for 'Wednesbury unreasonableness' is: . . .
  17. Hunter v Hanley [1955] SLT 213 , .
  18. Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 , .
    • . . . How does the Bolam test apply to the medical profession and continuing professional education (keeping up-to-date)? In Bolam v Friern Hospital Management Committee18 McNair J stated that a doctor cannot: . . .
  19. Crawford v Charing Cross Hospital The Times, 8th December 1953 , .
    • . . . In Crawford v Charing Cross Hospital the plaintiff developed brachial palsy in an arm following a blood transfusion.19 At first the defendant was found guilty on the basis of an article published in the Lancet 6 months previously . . .
  20. House of Lords Practice Statement [1966] 1 WLR 1234 , .
    • . . . The House of Lords (1966) does have the power to overrule previous decisions of its own, if it appears 'right to do so', in the light of changed circumstances.20 The covering document states by clarification: . . .
  21. Bolitho v City and Hackney Health Authority (1997) 39 BMLR 1; [1998] 1 Lloyds Rep Med 26 , .
    • . . . It was hoped that the House of Lords might have taken the opportunity to make radical changes to the concept of the Bolam test when they recently considered a medical negligence case, Bolitho v City and Hackney Health Authority in a long awaited decision.21 The House of Lords considered two issues in this appeal case: . . .
Expand