bolam test criticism

A discussion of the two polarities is imperative to efficaciously evaluate the essence of Bolam and later cases. 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. However, it is the desire of the individual that is cardinal to the enhancement of his life and therefore endorsement of these elements is imperative for them to have value [22] . Bland had been injured during the Hillsborough disaster and had remained in a persistent vegetative state for 3 years. . 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. Knowledge and communication difficulties for patients with chronic heart failure: qualitative study. 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. Reference this. Mrs Montgomery sued for professional negligence after her baby was born with severe disabilities. 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. Blyth v Bloomsbury Health Authority (1993) 4 Med LR 151, 157, Bolitho v City and Hackney Health Authority [1998] 2 AC 232, Buchanan, Alec. 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 very concept of the medical province is to alleviate, cure and prevent harm. That is not to say that paternalism is fruitless and ineffectual in all scenarios. In this case Lord Browne-Wilkinson reminded the court that they are. Doctors had not warned him about the risks involved. He suggested a distinction between freedom (particular acts) and autonomy which is more pervasive and alluding to states of an individual [16]. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. They stated that doctors should weigh up factors such as fear and depression to determine how the disclosure might affect the patient. London: Royal College of Surgeons, 1997. In his summation he observed that one of the primary features of anorexia was. … Free resources to assist you with your legal studies! In the following year, the highest judicature of English law in the case of Sidaway [45] , was presented with yet another opportunity to discuss the applicability of Bolam. 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. Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1AC 871, Smith v Tunbridge Wells Health Authority (1994) 5 Med LR 334, 339, South Australian Asset Management Corp. v York Montague Ltd. (1996) 3 All ER 365, 371-2, Sutherlund H, Lockwood G, Till J. Markedly, patients’ rights are implicit within the Oath as operating in their best interests, when they are incapable of doing so, denotes a moral justification as to the outcome [10] . Ultimately, it was on this divergence of opinion that the defendant doctor was able to successfully refute the negligence claims. He sued the Hospital Management Committee for negligence for not giving him a muscle relaxant, not restraining him, and not warning him about the risks involved. Sorted by Relevance . Gerald Dworkin’s contributions to this area indicate that autonomy is the aspect of individuals that should thwart paternalistic intervention [15]. The case Bolam v Friern Hospital Management Committee (1957) 1 WLR 583 established that there can be no breach in the duty of… If you are a member and need specific advice relating to your own circumstances, please contact one of … 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 realistic and impartial argument recognises that ultimately, both the doctor and the patient seek the customary target of rejuvenating the individual. A landmark case in English medical law and, it is submitted, one of the most radically controversial decisions in history. Mr Bolam sought compensation on the basis that his anaesthesia had been negligent because: 1. Of course, in medical scenes where the patient is mentally incapable of adopting a ‘best interest’ decision befitting the situation, paternalism can suddenly appear alluring. From the practitioner’s lens, a paternalistic approach is backed by the allegiance with the Hippocratic Oath; a solemn marriage to consider what is best for the patient at all times. Are we getting informed consent from patients with cancer? McNair J famously proclaimed in his judgment that a doctor cannot be held as negligent in his actions if he has acted in ‘accordance with a practice accepted as proper by a responsible body of men skilled in that particular art’ [35] . Moreover, Brazier has recently [28] advocated for patients to assume responsibility as quickly as they are to invoke their rights. To establish that trust you must respect patients’ autonomy—their right to decide whether or not to undergo any medical intervention . 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. The case Bolam v Friern Hospital Management Committee (1957) 1 WLR 583 established that if a doctor acts in accordance with a responsible body of medical opinion, he or she will not be negligent. It is thus unsurprising that judicial deference exists as the repercussions of legal verdicts can have a debilitating effect on the medical terrain. doctors): the Bolam test.Where the defendant has represented him or herself as having more than average … Therefore, the only possible occasion where paternalism may benefit an individual is in the instance where a ‘new life’ is championed as superior to one that may have otherwise been led [19]. | Sort by Date Showing results 11 to 20. 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. Explanation. Dworkin continues, envisaging autonomy as the capability to ruminate desires as ‘what makes an individual…is his life plan’ and in pursuit of autonomy a person truly ‘gives meaning to his life’ [17]. Dickenson, D. (1994) Children’s informed consent to treatment: is the law an ass? Therefore, this demeanour serves as a hunting ground for academics and patients’ rights activists who interpret this lethargic attitude as evidence for the prevalence of medical paternalism over autonomy. a) Criticism to Bolam test Doctors are not exempted from the law as, if they fall below the normal standard of care that is appropriate, then they will be liable for medical negligence. 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. Where clinical negligence is claimed, a test used to determine the standard of care owed by professionals to those whom they serve, e.g. 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. *You can also browse our support articles here >. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is a case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (e.g. However, upon appeal the House retired its option to scrutinise the evidence and simply applied the dictum of Bolam, thus exonerating the defendants. Doctors that fail to obtain informed consent from a patient can face claims for negligence and further sanctions from the GMC. Therefore, this asymmetry necessitates for frontier demarcation which is mooted in law and ethics. . 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 the years preceding the landmark case of Bolam [1], a significant proliferation of negligence claims within the medical domain left the profession in a state of fragility. Poetica 64, 2005 Plotting Early Modern London, ed. Nonetheless, upon dissecting the case it is evident that whilst their Lordship’s were cognisant of patient autonomy in the face of a growing paternalistic approach, there appeared to be a clear hesitance to put a halt to this apparent erosion of patient trust. Re B (A Minor) (Wardship: Sterilisation) [1987] 2 All ER 206, Re D (A Minor) (Wardship: Sterilisation) [1976] 1 All ER 326, Re KB (adult) (mental patient: medical treatment) (1994) 19 BMLR 144, Re M (A Minor) (Wardship: Sterilisation) [1988] 2 FLR 497, Re W (a minor) medical treatment: court’s jurisdiction) [1993] Fam 64, [1992] 4 All, Rogers AE, Addington-Hall JM, Abery AJ, et al. Due to McNair J’s verdict, judges are significantly distanced from affairs. The patient in this case displayed the symptoms of … 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. 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. Furthermore the consultants failed to wait for the results of sputum tests and proceeded to carry out an operation. As Pellegrino [11] attests, the paternalistic attitude in medicine has misled some clinicians into believing that this is a perceived right, where sovereignty is assumed over the subject. Shaw, M. (1999) Treatment Decisions in Young People: The Legal Framework. 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]. Informed consent and mentally handicapped children and adults. Lord Diplock professed that it is unnecessary for the court to ‘give effect to any preference it may have for one responsible body of professional opinion over another’ and nor is it willing to ‘put itself in the surgeon’s shoes’ [46] . Judicial reticence is far from desirable but the Bolam test considerably alleviates the burden of dispatching a rather novice evaluation of contrasting medical opinions. Moreover, completely neglecting a patient’s desires could potentially blur the distinction between beneficence and malfeasance. 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. Mr Bolam's claim failed. A patient’s perspective is concerned with autonomy. It could be argued that this part of the test does not really afford a distinctive bias towards the medical profession than it would to any other line of work. Bolam was … The House of Lords, in Maynard , discussed the general principles relating to the standard of care in medical negligence cases and confirmed the locus classicus of Bolam. The main source of discontent was the apparent judicial abdication of the power to determine the standard of care required to avoid negligence liability. Bolam test is a test that can only be carried out on a professional defendant to identify whether he or she has breached their duty of care. The doctor in this case failed to dispense the relaxants and also neglected to fasten restraints on the patient. This rule is known as the Bolam test, and states that if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent. ‘a compulsion to refuse treatment or only to accept treatment which is likely to be ineffective. This rumination is characteristic of a protectionist partiality towards specialists in the medical terrain where allegedly patient rights are readily discarded. The ‘Bolam’ principle was based on the case of Mr Bolam who suffered from serious injury as a result of electroconvulsive therapy (ECT) in 1954. The extent of patients’ understanding of the risk of treatments. Promoting the best interests of a patient is a notion held most dearly by the medical profession, yet some may argue that this acclamation can in some situations undermine the wishes of a patient. 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. This was argued in the case of Re D (A Minor) (Wardship: Sterilisation)[24]. Specifically the influential House of Lords decision in Bolitho [5] will be analysed to determine whether the early optimism was faithful to the verdict or merely subject to a fallacious and premature veneration. Hence, it was a matter for the courts to adjudicate whether the failure to provide the necessary drugs amounted to medical bankruptcy and a triumphant claim of negligence. 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. 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. London: FOCUS, The Royal College of Psychiatrists’ Research Unit. VAT Registration No: 842417633. Prior to these comments, in Salmond’s Law of Torts, it was claimed that negligence alludes to an ethical concept as general practice itself may not be on equal terms with the ‘standard of care required of a reasonably prudent man’ [43] . In his speech he stated. The test is based on a long line of cases dating 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. Quality in Health Care 2001;10(Suppl I):i14–18, Macillop W, Stewart W, Ginsburg A, et al. A principal battleground: Paternalism at odds with Autonomy. 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. Criticism on Bolam Test In England. 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]. Bolam test A test that arose from English tort law, which is used to assess medical negligence. Judges sense the burdens and stresses entangled in this demanding discipline and seemingly append excessive significance on these issues. 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.”, 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. *You can also browse our support articles here >, Correct identification of the relevant issues, Accurate knowledge and understanding of the law, Structured and reasoned arguments and a logical conclusion. Fields face a more stringent analysis by judges in an attempt to undermine the notion the. [ 21 ] purports possible scope for misuse or application of the autonomous being perceived to manifest a dormant in! 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