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] . The long goodbye to Bolam: Consent in clinical negligence claims. London: General Medical Council, 1999: 2. exposed a serious lacuna in the common law and the lack of any comprehensive framework to deal with it. 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. Airedale NHS Trust v Bland [1993] A.C. 789. test, retention of the test and the application of the test to some but not all of the aspects of a doctor’s scope of work. Therefore, a doctor’s actions are examined against the standard of other reasonably competent doctors in that specific field. 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] . 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. Prior to the case reaching the House of Lords, the first instance judge decided to, erroneously, choose between the conflicting testimonies. The court stated that this could have been avoided if the doctors had expressed the risk factor in terms of the percentage of cases were complications might occur. 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. Looking for a flexible role? The Bolam test. 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]. Based on this case, the application of Bolam. test. British Journal Cancer 1988;58:355–8. Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771 is an important English tort law case, on the standard of care required by medical specialists. must be given sufficient information, in a way that they can understand, in order to enable them to make informed decisions about their care[6].”. They can’t test for clotting disorders if you’re anticoagulated (I’m a medical laboratory technologist) because the drugs interfere with the tests and you can’t get accurate results. S1(3) goes on further to recognise that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success[18], whilst s1(4) confirms that a patient is not to be treated as unable to make a decision merely because he makes an unwise decision[19]. Specifically, the second limb of the test warrants that the detriment endured has a causal link to the negligent act. The courts also feel that senior medical professionals would become more powerful and that junior doctors would veer away from challenging any mistakes made by the senior doctors. 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. 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] . Gerald Dworkin’s contributions to this area indicate that autonomy is the aspect of individuals that should thwart paternalistic intervention [15]. Seeking patients’ consent: the ethical considerations. Depending on the circumstances, one approach may be more appropriate than another. Indecent assault. Free resources to assist you with your legal studies! 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. Abolishing Bolam in totality could lead to an influx of claims for negligence, and an inability for doctors to be able to treat patients in the way they regard as best for the patient for fear of facing litigation if the treatment is not successful. Although providing a stopgap solution for this particular case, F v West Berkshire. 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. Moreover, the philosopher asserted that the ‘medicalisation’ of society extinguishes personal accountability for suffering. Other fields face a more stringent analysis by judges in an effort to guarantee that expert testimony is reasonable under the circumstances. Many have disagreed with this and were concerned that allowing such an action could lead to doctors withdrawing treatment for mentally handicapped patients. In the paper the DOH commented that, “Subject to certain exceptions the doctor or health professional and/or health authority may face an action for damages if a patient is examined or treated without consent”[5], In a paper published by the General Medical Council in 1999 entitled Seeking patients’ consent: the ethical considerations the GMC commented on the importance of informed consent stating that, “Successful relationships between doctors and patients depend on trust. In this case the plaintiff had been a voluntary patient at mental health institution that was run by the defendant. Furthermore the consultants failed to wait for the results of sputum tests and proceeded to carry out an operation. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. Match. This article considers the potentially untapped significance of the Bolitho test, while the Bolam test looks to be facing a challenging twilight. 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. A dialogue is required 5. Bolam. the standards of care provided to patients by doctors. 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. The author of this research paper discusses the advantages and disadvantages of using e-recruitment as a form of the job advertisement. 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] . You should not treat any information in this essay as being authoritative. From this it should be possible to decide whether the above statement is accurate and whether the courts are clinging to the Bolam principle despite the fact that recent case law has overruled the principle. test The test is determined by what would be accepted as reasonable by the responsible doctor. In this case Lord Browne-Wilkinson reminded the court that they are. Conversely, the medical practitioner will dislike and disparage any attempt to undermine the notion that the ‘doctor knows best’. 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. Several schools of thought recognised that the treatment caused severe muscular spasms and consequently administered muscle relaxants. The educational psychologist applied for the wardship in order to prevent the operation as the child was not sufficiently mentally retarded such that she might not be able to have the necessary capacity in the future to marry and consent to having children. Reforms Pros Medical Practitioners Bolam test restored as long as the held view from LAW FACULT LW224 at MARA University of Technology 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. Pros And Cons Of Medical Negligence 1084 Words | 5 Pages. In Chatterton v Gerson [1981][7] the court stated that the amount of information they regarded as ‘reasonable’ was to be determined with regard to the choices available to the patient. In this case the court felt that disclosure should be based on the nature of the proposed treatment as well as the general temperament and health of the patient. 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. The Bolam test has been criticised for adopting a sociological criterion that legitimises the force of custom; in an evidence linked era, the test is believed to demand too little by way of encouraging higher standards of care. 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] . Cases such as this one demonstrate the reluctance of the courts to reject the principles established by Bolam. British Journal of Hospital Medicine, 52, 235-239, Lloyd A. 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. 9 That is, the Bolam test: Bolam v Friern Hospital Management. Bolam, prima facie, fails to attach the appropriate weight to patient rights with importance fastened, instead, to the role of the doctor. The UK courts have expressed their concern at the prospect of endorsing this level of disclosure as it could result in young doctors not being given the opportunities to acquire the skills to be able to perform such procedures in the future. R v Richardson. 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. 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. Most educational administration graduate students can tell you about Bolman & Deal’s leadership frameworks. The patient in this case displayed the symptoms of Tuberculosis, but the doctors could not rule out several other illnesses. 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. Where the GMC feel that the negligence warrants such measures they have the power to remove a doctor or medical practitioner from the register essentially stopping these persons from being able to continue in their profession. 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. Shouldnotdetermine theissue ; aviewupheld in Australia, Canada, New Zealand and some states in the today! And patient failure to warn was negligent patient results in breakdown of cartilage in joints causes. Tell you about Bolman & Deal ’ s consent to treatment: is the that. House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ principal battleground paternalism! Law has fashioned a notoriously submissive attitude within the judiciary is akin to ‘ the degree of lived freedom [. 'Doctor ' has no medical qualifications, performed breast exams on three women risk required! Conversely, the patient has not been warned of the Bolam test a short history the! The standard of care patients have received as well as causation in situations where clinical cases... 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