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. The medical province was however, able to find sanctuary under the aegis of an English court room where judges had developed a vehement and preservative attitude towards this universally revered vocation.
This rumination is characteristic of a protectionist partiality towards specialists in the medical terrain where allegedly patient rights are readily discarded. Claims [2] that structured medicine has been reduced to a ‘grotesque priesthood’ interested in ‘salvation’ and resulting in a ‘law unto itself’ are extreme but, there is nevertheless a need for accountability and judicial scrutiny.
The Bolam test which demonstrates that a medical practitioner is incapable of negligence if his actions are certified as suitable by a ‘responsible body of medical opinion’ [3] enhances this impression. 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. 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.
This paper will seek to examine the ubiquitous jurisdiction of Bolam whilst a meticulous attempt will be made to analyse subsequent case law in an effort to ascertain the tendency of judicial decree. 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. 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. Prima facie, the Bolitho judgment implies that patient interests are not being neglected as it was affirmed that medical specialists cannot be free to adjudicate on their own matters. Hence, a perusal of the philosophy of paternalism adjacent to the concept of patient autonomy is pertinent here in establishing a far-reaching framework within medical negligence problems. Moreover, an abundance of recent academic opinion chronicling the debate surrounding this contentious area shall be investigated to verify the claim that ‘Bolam is not the unstoppable juggernaut’ [6] it once resembled. 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.
Negligence occurs as a result of a person breaching a duty of care that is owed to another person, and the damage that consequently ensued was not too remote to that breach. In the medical context this naturally pertains to the relationship of the doctor and the patient. Here a breach is revealed once a doctor has descended below the recognised standards of practice on the clinical scale and consequently, by act or omission, inflicted some sort of detriment upon the patient. Specifically, the second limb of the test warrants that the detriment endured has a causal link to the negligent act. The fragility of this ‘sacred’ relationship and the accompanying risk factors pave the way for potentially serious claims to be generated. Further, these claims inevitably have the ability to stain the reputation of a practitioner’s medical judgment. It is thus unsurprising that judicial deference exists as the repercussions of legal verdicts can have a debilitating effect on the medical terrain. Nonetheless, equivalent arguments can be made from a patient’s perspective who having suffered a loss may conceivably have to live with it for the duration of his life.
A principal battleground: Paternalism at odds with Autonomy
The doctrines of paternalism and autonomy are constantly at loggerheads within clinical negligence cases. A discussion of the two polarities is imperative to efficaciously evaluate the essence of Bolam and later cases. 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. 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. Conversely, a doctor may argue that if the patient wishes to regain his health, then his wishes match that of the medical profession.
Whilst this relationship exults itself as beneficent, a limited definition may construe it as an encumbrance of liberty; ‘it is for the good’ of the individual whose rights are being impugned [8] . Nonetheless, set against the backdrop of Hippocrates’ 5th Century clinical pledge, paternalism is also heavily rooted in the consequentialist moral theory of utilitarianism [9] . 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] . Second guessing the merits of a clinical evaluation to a patient’s happiness, especially when such little is known about the patient’s life, can be hazardous. Moreover, completely neglecting a patient’s desires could potentially blur the distinction between beneficence and malfeasance. Consequently an erratic ambience is created, nurturing a confrontation between both doctor and patient. 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.
Indubitably, it is an arduous task to strike a balance between the best interests and wishes of the patient. Generating the most equitable outcome is much more difficult in both practice and theory. The very concept of the medical province is to alleviate, cure and prevent harm. These notions underpin the clinical framework and hence each clinician should aspire to achieve these aims. People flock to health institutions when in need of therapeutic assistance, therefore, to some degree trust in its prudence is necessary. Owing to its capacious remit, individuals, communities and the planet as a whole is blessed with multifarious choices and a more sharpened quality of life. Due to its ubiquitous domain, challenging medical acumen could subvert our general vista and call into question certain features of our everyday lives that are contingent upon it.
It is apparent that public confidence is the key to advances in Medicine, but this must be attributed to the successful dispatching of a practitioner’s duties. A patient’s perspective is concerned with autonomy. As Breier-Mackie reports, ‘to claim that patients have autonomy is to argue that they have the capacity and right to decide for themselves the values and rules that will govern their existence’ [12] . 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] .
Health is preeminent in all humans, and its sustenance has direct ramifications for individual autonomy. 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. Hence as Illich attests, an individual’s wellbeing is akin to ‘the degree of lived freedom’ [14] . Moreover, the philosopher asserted that the ‘medicalisation’ of society extinguishes personal accountability for suffering. This yearning to develop into a transcendental entity, he argued, has resulted in a destruction of our capacity for health and transformed people into consumers. Hence, he argued for greater patient empowerment to rekindle the principle of the autonomous being.
Gerald Dworkin’s contributions to this area indicate that autonomy is the aspect of individuals that should thwart paternalistic intervention [15] . He suggested a distinction between freedom (particular acts) and autonomy which is more pervasive and alluding to states of an individual [16] . 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] . Furthermore, in the context of health he proposed that as ‘my body is me’, any failure to revere my desires connected to my body is an offensive refutation of autonomy [18] . Considering the medical archetype often entails determinations that are inextricably linked with the physical autonomy, this ‘life plan’ is hindered; self determination is thus undermined in medical negligence cases. 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] .
The sentinels of the medical field, namely doctors, are positioned in a jeopardous environment that warrants protection. It is only just that adjudicators recognise this pose to avert any vexatious claims, but at the same time they must not err on the side of strictness to an extent where the conviction that health is a fundamental good is altered into ‘the belief that medicine is a fundamental good’ [20] . Moreover, as Kennedy vehemently proclaims the doctor patient paradigm represents a disproportionate balance where due to the very nature of the relationship, the patient is completely vulnerable. This ‘disequilibrium of power’ [21] purports possible scope for misuse or application of power. Notably in this relationship it is the patient that seeks the expertise of the clinician, who in his capacity possesses the unique competency to attack and encroach the patient’s body. Therefore, this asymmetry necessitates for frontier demarcation which is mooted in law and ethics.
As Wilkinson asserts, people can be ill equipped to distinguish what is best for them. Scrutinising the anti-paternalistic argument, he assesses Ronald Dworkin’s claim that people have ‘critical interests’ which occasionally can be mistaken. 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] . In connection to medical law, individuals should have the liberty to mediate on matters concerning their wellbeing. Additionally, to impose upon an individual actions that are manifestly contrary to their convictions is to dethrone their integrity, which in turn is to lose something of great value [23] .
On the other hand Teff offers a slightly altered viewpoint suggesting that it is impertinent to see the doctor patient relationship as simply strife ridden. Rather, he places emphasis on the growing realisation in the medical kingdom that collective partnership in treatment can furnish ‘therapeutic benefits, whilst affording due respect for the patient’s moral agency’ [24] . This realistic and impartial argument recognises that ultimately, both the doctor and the patient seek the customary target of rejuvenating the individual.
Indeed a growing ethos within the NHS nowadays is that of harmonious participation where doctors work with patients. As both parties hunt for equivalent ends, there is no need to envisage a conflict of interests. What proves to be a distressing quagmire in medical negligence claims is the sour ordeal faced by the patient may leave him feeling disappointed with the administering of treatment. Moreover, the patient senses resentment towards the modus operandi and will inevitably be aggrieved that in a state of vulnerability, his integrity and physical autonomy have been violated.
The area enclosing these two antithetical concepts is enmeshed with multifaceted issues. A patient may feel his autonomy is being crippled by the purported omniscience of a practitioner. Conversely, the medical practitioner will dislike and disparage any attempt to undermine the notion that the ‘doctor knows best’. This friction is accentuated in negligence claims when failure to consider the wishes of the autonomous patient results in volatile environment. That is not to say that paternalism is fruitless and ineffectual in all scenarios. 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. Yet the case law encircling the pastures of repudiating medical treatment continues to uphold the principle of self determination. The absolute right to refuse treatment ‘exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent’ [25] . This sector in medical law recognises the importance of autonomy over paternalism; however, this area can potentially become troublesome once an element of late pregnancies is adjoined [26] .
Brazier characterises the paternalism trend as becoming an archaic ideology and indicative of a primitive mindset, commenting specifically on the fundamental disparities between the notions of paternalism and beneficence [27] . It is submitted that that the latter concept expects clinicians to channel any manoeuvre in a manner beneficial to the patient. Moreover, Brazier has recently [28] advocated for patients to assume responsibility as quickly as they are to invoke their rights. 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] . Hence as Mackenzie and Cox observe, Brazier finds the medical deviation towards consumerism as a tocsin to restore medical integrity amid suggestions that clinicians are being reduced to mere ‘body technicians’ [30] . Furthermore, Brazier’s findings suggest that the principle of beneficence, not autonomy, promotes a middle ground in battles against medical paternalism. This outlook propagandises communitarianism [31] and enhances the prospects of Stirrat and Gill’s charge that the doctor patient relation should be perceived as a covenant [32] .
Bolam, prima facie, fails to attach the appropriate weight to patient rights with importance fastened, instead, to the role of the doctor. Supporters of this approach may argue that this stance is mandatory considering the fact that it is the doctor who has purportedly executed the negligent act. Nonetheless, closer scrutiny paints an inherently dissimilar picture; special treatment and protection afforded to the medical profession permeates this sphere owing much to the reluctance of the courts to challenge medical judgment. Judges sense the burdens and stresses entangled in this demanding discipline and seemingly append excessive significance on these issues. This intrinsic empathy for medical practitioners entails a deep understanding of the fallibility of the profession. Moreover, it appears as though the judiciary are too enchanted by the specialty and this beclouds the real issues of external evaluation of medical evidence.
The birth of Bolam
A landmark case in English medical law and, it is submitted, one of the most radically controversial decisions in history. The Bolam case concerned a depressed patient who was voluntarily undergoing electro convulsive therapy at a mental health institution. Several schools of thought recognised that the treatment caused severe muscular spasms and consequently administered muscle relaxants. The doctor in this case failed to dispense the relaxants and also neglected to fasten restraints on the patient. Thereupon, the patient suffered inexorable damage to the pelvis area induced by the ECT. Moreover, the patient has not been warned of the potential for physical injury resulting from the treatment. Likewise, there existed conflicting medical practice about alerting patients to this risk, some doctors believing that a prompt may prevent the patient from accepting this helpful therapy. 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.
A key characteristic in this case was the fact that expert testimony regarding a medical analysis of the actions of the doctor differed specifically on the employment of drug relaxants. Ultimately, it was on this divergence of opinion that the defendant doctor was able to successfully refute the negligence claims. Moreover, whilst there were schools of thought advocating the use of relaxants, there also existed a vehement conviction of the clinician’s modus operandi.
In medical negligence cases once the duty of care requirement has been satisfied, which is self evident in doctor patient relationships, it must be determined whether the clinician’s actions substantiated in a breach of this care. McNair J defined what is meant by negligence in relation to situations where specific expertises are required, differentiating this scenario to the ‘test of the man on top of a Clapham omnibus’ [33] . The judge proclaimed, that the negligence test in the province of medicine mandated for a standard of ‘the ordinary skilled man exercising and professing to have that special skill’ [34] . Therefore, a doctor’s actions are examined against the standard of other reasonably competent doctors in that specific field. This test was by no means a novel idea and considering that medical practitioners possess unequivocally specialist skills it is certainly to be expected that they be judged in accordance with those fellow professionals that are fairly adequate in their vocation. Certainly, this test does not create a disproportionate criterion against which doctors are judged; merely the standard of an average doctor is engaged.
The highly dubious and academically contested area of the Bolam case lies in the reasoning applied to the second limb of the test. 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] . 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] . In a discipline like Medicine, there are diverse practices followed by doctors, but mere conformity with one of these practices cannot amount to negligence. 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. Medicine is inherently an arduous and technically convoluted discipline that requires a special degree of expertise and dexterity; skills that are not necessarily colloquial within the general public. Brazier and Miola assert this view, professing that just because a ‘judge fancies ‘playing’ at being architect, solicitor or doctor’ does not connote that the skilled individual’s actions are scrutinised and consequently held as incompetent [37] .
Nonetheless, subsequent case law has fashioned a notoriously submissive attitude within the judiciary. Judges are perceived to manifest a dormant engagement in cases where challenging the credibility of medical judgment is essential. 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. It thus follows that an inquisition into the repercussions of the Bolam decision is necessary to contextualise the various criticisms and allegations enveloping the case.
Judicial reticence is far from desirable but the Bolam test considerably alleviates the burden of dispatching a rather novice evaluation of contrasting medical opinions. Due to McNair J’s verdict, judges are significantly distanced from affairs. Furthermore, owing to the fact that proceedings are reliant upon the existence of a concurring ‘body of opinion’, the practice has seemingly become nothing more than a rubber stamping exercise. The unconvincing effects of this ruling simply connote that if medical judgment is provided, and as long as the actions of the doctor were in accordance with an accepted practice, negligence has not occurred.
It has been argued that instead of simply concentrating on who is providing the expert testimony, judges should alternatively deliberate whether the opinion is reasonable [38] . 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. This prejudicial approach could be perceived as a hazardous caveat of the medical profession standing tightly in unity to eschew the blemishes of negligence claims; the law could become a gateway for medical miscarriages. Moreover, the Bolam test implies a high threshold for potential claimants, thus thwarting superfluous claims and to some extent relieving the ill equipped NHS of any unnecessary anxieties. A potential benefit attained from Bolam is the lee weigh afforded to clinicians in experimenting with alternative treatment, which may have great bearing in the evolution of the discipline. Innovative treatment may be tested without undue trepidation, benefitting both practitioners and patients. It should be duly noted that this boon of scientific growth should nevertheless be subordinate to patient welfare; patients cannot be treated as guinea pigs catalysing the careers of doctors.
Bolam insists upon a negligence test that is unique only to the medical profession, as the standard of care is ‘set by other doctors’ [39] . Other fields face a more stringent analysis by judges in an effort to guarantee that expert testimony is reasonable under the circumstances. Therefore, it is integral to this moot that the case is contextualised to its roots in the early 1950s, bearing in mind the social attitudes of the time towards paternalism and autonomy. Considering the notion of autonomy only picked up pace towards the early 1960s, Bolam was simply seen as reinforcing the law and any yielding by the judiciary was due to factors such as ‘seniority, reputation and performance in court’ [40] . Hence, the oral delivery of medical evidence was attributed undue weight alongside an uneasiness of following the American trend of sharp rises in litigation.
Monstrose, writing in the aftermath of the Bolam case, declared that ‘in so far as negligence is concerned with what ought to be done, it may be called an ethical concept’ [41] . On the other hand, he argues, as long as negligence is ‘concerned with what is done, with practice, it may be said to be a sociological concept’ [42] . 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] .
The Bolam aftermath
Bolam received grave criticism from academics, therefore subsequent case law is important to analyse in order to ascertain whether precedent was perpetuated or replaced. The House of Lords, in Maynard [44] , discussed the general principles relating to the standard of care in medical negligence cases and confirmed the locus classicus of Bolam. The patient in this case displayed the symptoms of Tuberculosis, but the doctors could not rule out several other illnesses. Furthermore the consultants failed to wait for the results of sputum tests and proceeded to carry out an operation. The claimant remarked that consultants should have awaited the result and thus avoided any needless damage to her left vocal cord.
Akin to the court affairs in Bolam, there was a schism between the medical judgments as one body of medical opinion endorsed the defendant’s view whilst another body disapproved of the conduct. Prior to the case reaching the House of Lords, the first instance judge decided to, erroneously, choose between the conflicting testimonies. However, upon appeal the House retired its option to scrutinise the evidence and simply applied the dictum of Bolam, thus exonerating the defendants.
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. The case pertained to the duty of surgeon to notify a patient of any potential risks before carrying out an operation. 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] . Hence, it seemed that Donaldson MR’s declaration at the Court of Appeal stage that ‘the law will not allow the medical profession to play God’ [47] , would be ignored once again and the Bolam test would be perpetuated. However, interestingly in this case, Lord Scarman dissented promulgating that Bolam should not apply to issues of informed consent as the practitioner ought to owe a duty to convey any inherent or material risks posed to the patient. Moreover, Lord Bridge acknowledged this observation by envisaging of situations where the confession of a risk may be patently necessary to the rumination of an informed choice; ergo ‘no reasonably prudent medical man would fail to make it’ [48] .
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.
Thus it seemed that modest progress had been made in Sidaway, yet the following cases of Blyth [49] and Gold [50] managed to widen the reach of the Bolam test, consequently limiting the capacity to dispute it. The Gold case extended the Bolam check to all areas of medicine including the distribution of advice, diagnosis, therapy and even prescribing practice. Moreover, the plethora of case law upholding Bolam fostered, as Brazier and Miola term it, a ‘Bolamite’ philosophy, which had spiralled ‘out of control’ [51] to the point where it was submitted that ‘when in doubt “Bolamise”’ [52] .
This infiltration extended to instances where the legitimacy of certain treatment for the mentally impaired needed to be arbitrated. Therefore in Re F [53] , a mentally incapacitated patient engaged in sexual activities with another patient at the mental hospital and under the circumstances the doctors sought to sterilise her. Their Lordships announced that in the event where a person is unable to give consent to treatment, doctors may, as a matter of necessity administer the treatment if it is perceived to be in the ‘best interests’ [54] of the patient. Consequently, the overt ‘Bolamisation’ continued, expanding its ranks to cases involving the withdrawal of life-sustaining treatment [55] .
Further, it was alleged that Bolam managed to creep in ‘by the back door’ [56] in the case of Gillick [57] which mimicked this judicial policy without directly invoking Bolam. Here, it was questioned whether a child of 16 years or younger is able to consent to medical treatment without the authorisation of a parent. As a result of this case, girls under 16 may be prescribed a contraceptive pill if deemed to be ‘Gillick competent’ as adjudicated by a doctor in their ‘best interests’. Lord Fraser thus testified that medicine has already been ‘entrusted with wide discretionary powers’ and it would not be considered as deviating from this path by assigning ‘this further responsibility which they alone are in a position to discharge satisfactorily’ [58] . It was therefore submitted that the stealthy inclusion of Bolam in Gillick suggested that similar manoeuvres had occurred in other cases relating to minors’ incapacity to rebuff treatment [59] .
A few years later in DeFreitas [60] a somewhat perturbing precedent was established depicting how even a small number of clinicians may constitute as a ‘responsible body of opinion’. This case comprised of the Bolam test being appeased by a small minority of neurosurgeons who were held to satisfy a ‘body of opinion’, contrary to the claimant’s Hills v Potter [61] argument that a ‘substantial body’ was crucial to invoking the test. Nonetheless, commentators criticised this approach proclaiming that it would be very difficult not to read ‘substantial’ as meaning ‘of a great number’ and that ‘greater the number the higher the degree of respectability it is likely to attract’ [62] . Equally, it was conceived that it is possible that by granting such a small number to form a ‘responsible body’, minorities could also induce evolution in the world of medicine.
A brief respite from Bolam or eradication of an outdated relic
As discussed so far, departures from Bolam have been scarce, if not nonexistent. However, there are a number of cases that displayed a glimmer of hope in this area. Sachs LJ, for example, reiterated that the court must peruse any ‘lacuna’ that may subsist within professional practices [63] . Here, Bolam was not referred to, rather attention was concentrated upon the degree of risk involved and the ease of eluding it. Moreover, as discussed earlier, Bolam supremacy in medicine was unique to that field; other professions escaped the shackles of paternalism.
In the Edward Wong [64] case, a mortgage transaction was executed in the Hong Kong manner as opposed to the English approach. Although the method endorsed was almost unanimously held in Hong Kong it could not qualify as a ‘responsible body’ and thus the subjective Bolam test was not applied which meant that the defendants were held liable for negligence. Furthermore, the conclusion of this case attracted adoration amongst observers [65] who gladly received the deviation from Bolam for a more equitable test. Nonetheless, this departure had no effect on the deterioration of patient rights as Bolam remained applicable to the medical profession.
Despite a sceptical mindset penetrating the patients’ rights standpoint, the House of Lords decision in Bolitho [66] suddenly reinvigorated a belief that the previous erroneous approach could be vanquished. The case concerned a two year old child who endured brain damage, eventually resulting in a cardiac arrest. A doctor who had been asked to attend to the child delegated the job to a fellow peer. Both clinicians failed to appear and consequently the first doctor was taken to court where it was revealed that the accepted procedure under the circumstances, had the doctor attended, would have been to intubate the child. The principal matter of the case pertained to causation rather than a breach of duty [67] . The defendant doctor argued that had she attended, she would not have intubated the child and thus it was to be ascertained whether a failure to intubate would establish negligent behaviour. Similar to previous cases, two schools of thought existed in relation to this issue and therefore the House of Lords were once again provided with the opportunity to assess Bolam.
Lord Browne-Wilkinson reflected on the language used in Bolam and Maynard. Adjectives such as ‘responsible’, reasonable and ‘respectable’ portray that the court must be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis’ [68] . Moreover, his Lordship’s submission prima facie suggests that a departure from Bolam has arisen; judicial scrutiny at the forefront of such cases to accentuate the fact that practitioners cannot be ‘judges in their own cause’ [69] .
The ‘new’ Bolitho test sets out that a judge may choose between contrasting bodies of opinion, thus rejecting one body of opinion, if the medical judgment is not considered to be ‘logically defensible’ [70] . Yet, upon closer inspection it appears as though Bolitho merely attempted to restore the original limits of the Bolam test which did not intend to designate unconditional rights to doctors. Moreover, his Lordship emphasised that expert testimony will very rarely be held as unreasonable, as on the majority of occasions the credibility of medical judgment is indisputable.
Hence, upon external evaluation of the medical evidence, their Lordships held that rejecting expert testimony on the facts presented in Bolitho would be wholly unwarranted as there existed logical reasons against intubation.
Initially received by one observer as a long, overdue ‘Eureka!’ [71] moment that dispelled fears of partisanship, the Bolitho case certainly mooted some important issues. However, it was suggested that where Bolitho served as a ‘chink in the armour of Bolam’, its narrow advancements did little to eradicate the ‘uncertainty left in the wake of Sidaway’ [72] . Furthermore, Brazier surveyed the case remarking that the House of Lord’s unwillingness to override Bolam preserved the fellowship of the ‘ancient professions of law and medicine’ [73] , and Keown [74] declared that the efficacy of the verdict is limited.
Keown claims that whilst Bolitho harnesses Bolam it fails to clarify whether expert testimony will be snubbed ‘only if it is logical’, and clearly problems will arise in instances where the reasoning is sound but the premise is unconvincing [75] . Glover also downplays the progress made in Bolitho, maintaining that even the word ‘logic’ is inherently uncertain following established dictum in the area, thus doing little to reassure patient rights advocates that medical paternalism has been curbed [76] . Nonetheless, Mclean [77] asserts that a positive aspect of Bolitho is that it may promote more accurate and prudent treatment as opposed to a timid and defensive mindset that could nurture a cynical work atmosphere where gambling on evolutionary practices may seldom occur.
Indubitably Bolitho took a ‘step in the right direction’ [78] by way of its recognition of the need for judicial scrutiny, but its success is contingent upon how far the ruling is exercised. Hence subsequent case law is a key determining factor of whether Bolam still survives or has been rendered an outdated relic of a more paternalistic past.
Bolitho was explored in the Court of Appeal case of Marriot [79] in which a patient suffered recurrent headaches following being discharged from hospital. The claimant’s condition worsened and thereupon he consulted his local GP who failed to appreciate the severity of his ill health and simply prescribed painkillers. Soon after, the claimant’s condition was aggravated and thus resulted in residual paralysis and a speech disorder, prompting the patient to initiate legal proceedings against both the doctor and the GP. Continuing the familiar pattern of these cases, there existed two conflicting bodies of opinion. Hence it was a matter for the courts to decide, on the facts, whether the medical opinion was ‘logically defensible’.
The trial judge in the case found for the claimant, referring to the risk factor in the case. He observed that although there existed a minimal risk of an intracranial lesion, the possible repercussions if things went wrong would be ‘disastrous to the patient’. Further, in light of this grave risk the only ‘reasonably prudent course’ would have been to readmit the patient for further testing and supervision [80] . The Court of Appeal upheld the trial judge’s conviction upon evaluation of the medical evidence against the ‘risk analysis approach of Bolitho’ [81] , thus prompting the positive views of commentators that the verdict denoted the initiation of a ‘revolution’ [82] in judicial psychology in medical negligence cases.
Another Court of Appeal case [83] assessed this apparently contemporary judicial attitude. Here, three women developed cervical cancer even after smear tests had previously turned out negative (but with abnormalities). The court refused to Bolamise, instead declaring that the credibility of the expert testimony was suspect when ‘standing up to logical analysis’ [84] . Pepitt J held that a reasonably competent practitioner would have, under the circumstances classified the smear test results as borderline [85] . Moreover, Lord Woolf [86] reiterated Bingham LJ’s view that in evaluating expert testimony the ‘judge remains the judge’ and therefore he must weigh the coherent and ‘reasoned opinion expressed by a suitably qualified expert’ adjacent to ‘a coherent reasoned rebuttal’ [87] .
The Bolitho-aligned case law hinted at judicial responsibility nestling at the forefront of medical negligence cases. However, the findings of Maclean [88] , Mason [89] and the case of Wisniewski [90] suggest that the ‘Bolam bonds’ [91] have not been severed.
In Wisniewski the claimants initiated proceedings ten years after the mismanagement of a mother’s pregnancy during which the child suffered irreversible brain damage due to, effectively strangulation, thus rendering the infant to be diagnosed with athetoid cerebral palsy from birth. Unfortunately the midwife had failed to contact for a doctor in due time, therefore the necessary aid was not administered.
There were two conflicting schools of thought presented, with the defendants arguing that there existed a respectable body of practitioners who would not have acted instantaneously upon the appearance of worrying symptoms, and by the time further complications would have surfaced it would have been too late to carry out a caesarean. The trial judge asserted that in his own judgment the risk of a cord prolapse should be have been weighed against the risk of distress to the foetus in the possible form of cerebral damage. The judge alleged that any reasonably competent doctor would have balanced these risks and consequently carried out an artificial rupture of the membranes.
Brooke LJ cited the Bolitho judgment where it was reaffirmed that ‘it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable’ [92] . Applying this guidance, the Court of Appeal articulated that it was ‘quite impossible’ for the trial judge, in light of the ‘sincerely held’ convictions of the defendant’s experts (described as ‘eminent consultants’) to claim that such views could have no logical support [93] . However, the Court [94] did appreciate that the absence of the resident senior house officer from legal proceedings and the consequential failure to provide ‘material evidence’ could draw the judge into making adverse inferences [95] detrimental to the defendants cause and possibly beneficial to claimant’s enterprise.
Commentators [96] have declared that Wisniewski would, indubitably, have been Bolamised if the causation barrier had been struck down by the defendant doctor and material evidence had been provided. As Hagger contends, Bolitho has had a ‘limited impact’ in ‘extreme’ cases [97] . Furthermore, the rarity of Bolitho’s applicability merely serves to cement the subsistence of Bolam within English medical law. This stark reality, however, can be distinguished from other jurisdictions which have managed to wriggle out of the Bolam straightjacket.
Concluding remarks
As Jackson declares it is ‘impossible to tell’ whether claimants have enjoyed more success following Bolitho, but what remains clear is that it is ‘by no means easy’ to establish that a doctor, who with the backing of expert witnesses, ‘was in fact negligent’ [98] . Difficulties may arise when there are diverging professional opinions. Cases such as Reynolds [99] represent a handful of rare occasions where expert testimony has been rendered incapable of ‘withstanding logical analysis’ [100] .
The status quo of autonomy and patient rights across the border has been divergent to conditions on English soil. The stance of Commonwealth countries [101] is heavily based on scrupulous study of the actions of medical practitioners. Kirby remarked that perhaps the English courts should follow suit and thus take heed ‘of their rebellious progeny’ [102] .
Since, Lord Woolf has suggested that the courts have now moved away from the ‘excessively deferential’ and the ‘intrusive Bolam’ approach of the past [103] . Teff argues that this newfound willingness to scrutinise the substance of expert testimony is much needed considering the propensity of lawyers’ to ‘bluntly’ regard medical experts as ‘hired hands’ [104] .
His Lordship cites the reasons for this change in approach due to a ‘huge growth in the scale of litigation’ prompting the courts to become ‘increasingly conscious of the difficulties’ faced by bona fide claimants [105] . Furthermore, the paper argues that growing awareness of patients’ rights, a tarnished reputation of ‘the automatic presumption of beneficence’, concerns surrounding medical ethics, and the Human Rights Act 1998 are reasons for this transition [106] .
The initial jubilation [107] following Bolitho has been met with a mixed response. The force of the decision seems to have developed from its embryonic stages, and the subsequent case law has tested its boundaries. Bolam remains a tough nut to crack, but for compelling reasons. As Brazier and Miola note, the inability of judges to appropriately comprehend medical evidence paves the road for an inexorable conclusion that ‘evidence cannot after all be critically evaluated by a judge’ [108] . Nevertheless, judicial deference has waned in practice with some changes being propelled by EU initiatives and the National Institute for Health and Clinical Excellence who probe medical practice and provide clinical guidelines [109] .
The Bolitho formula is a rejuvenated version of the Bolam test, with a more emphasised and discernible intention. Ergo, the law in Bolitho remains inclined towards the medical profession, evidently struggling to balance patients’ rights with the need to safeguard the valued and vital discipline by discouraging a litigious culture. Bolitho has brought a refined Bolam into this millennium, more alert to the evolutions of science and conscious of the calls for impartial acknowledgement of patients’ rights in a courtroom that can no longer afford to stand aloof from these needs.
In conclusion, it is apparent that Bolam is not an outdated relic of a paternalistic past, and although the judicial scales have faintly tipped towards a more proactive advent, the current position is still inequitable. As Pattinson remarks, mechanisms such as the proposed ‘halfway house’ [110] model, will be unable to adequately redress the balance as in certain situations the courts may construe blind adherence to guidance as ‘logically indefensible’ [111] .
