Medical practitioners are obligate by law to exhibit diligence, care, knowledge, skill, and discretion when administering therapy to a patient. The Bolam v Friern Hospital Management Committee (1957) criteria are frequently used to determine whether a medical practitioner delivered the necessary level of care. The Claimant in Bolam developed acetabular fractures while getting electroconvulsive treatment at the mental facility of the plaintiff. McNair J verified the following while evaluating whether the defendant was careless in the manner in which it performed the therapy:
“The significant test of demonstrating the carelessness of a doctor in diagnosis or treatment was whether he operated under a practice acknowledged as legitimate by a responsible group of medical professionals competent in that specific art.”
The concepts underlying the breach of duty in medical negligence claims have evolved in tandem with case law. It has resulted in the understanding that the Bolam test is not applicable in every situation.
Cases Concerning Issues of Advice and Consent
The Court assessed whether the plaintiff should be advised of the risk of shoulder dystocia if she chooses vaginal birth, as well as the alternative option of elective cesarean section in Montgomery v Lanarkshire Health Board (2015).
Lord Kerr and Lord Reed delivered the lead decision, in which their Lordships acknowledged:
“The main distinction between, on the one hand, the duty of doctor in examining various investigative or therapeutic options and, on the other hand, its duty in addressing any recommended treatments and potential alternatives with the patient.”
The Bolam test would apply in these situations. But their Lordships decided that the advising role of the doctor could not just be considered a medical activity. They thought that the right of a patient to select the risks to their health that they are willing to face should take into account and that the courtroom, not medical experts, was responsible for determining the nature and scope of the rights of a person.
As a result, the test in situations requiring the obligation of a doctor to advise and acquire consent from patients, developed as follows:
“A sane adult has the right to choose which of the available treatments, if any, to undergo and must obtain their consent before undertaking any treatment, which would compromise their physical integrity. As a result, the doctor must ensure that the patient knows any significant risks connected with any proposed therapy and is aware of any appropriate alternative therapeutic options.”
The responsibility to warn about risks shall exclude if the doctor reasonably considers that the revelation of such information is severely harmful to the patient or if the patient urgently requires treatment and cannot make choices.
Pure Diagnostic Cases
When a medical practitioner makes a diagnosis based on the interpretation of evidence, such as radiological scans or a specimen on a slide, that interpretation and diagnosis are either right or wrong. The question in Muller was whether a histologist was negligent in failing to detect a malignant melanoma after studying slides containing material acquired from the punch biopsy of the plaintiff. Kerr J noted that these pure diagnosis situations were not what McNair J had in mind when establishing the test in Bolam, defining Bolam as a pure treatment, for example.
Kerr J reviewed the approach used by HHJ Peppit QC in Penney v East Kent Health Authority (2000), in which the irregularity on the slides of the plaintiff was visible. Consequently, there was no possible question about whether a specific course of professional activity constituted acceptable practice.
Kerr J expressed disappointment that the law forced him to examine the process of choosing one expert over another through the lens of the exception to Bolam established in Bolitho v City and Hackney Health Authority (1998). Kerr J thought it would be better to reject the concept that the Bolam principle can apply in the absence of a Bolam-appropriate problem. As it was, Kerr J felt constrained by the law as it stood at the time; he believed that his approach to the case had to be guided by the possibility of using the Bolitho exception (which unsurprisingly invoked).
Cases in which no conflict exists that the alleged behavior would be negligent if proven
Many situations have no genuine debate that the claimed action of a medical practitioner, if proven, would constitute negligence. In many cases, a simple question of whether the practitioner has acted in a manner allegedly solved the breach of duty problem.
In FB v Princess Alexandra Hospital NHS Trust (2017), for example, there was no argument that a Senior House Officer (SHO) had a responsibility to obtain an adequate history of the Claimant when she was brought into A&E by her parents.
A strict application of Bolam is not appropriate in all cases of medical misconduct. Bolam is unlikely to apply in cases involving counsel or agreement to treatment, pure diagnosis, or when it acknowledges that the accused conduct, if proven, would be negligent. Medical negligence practitioners must adopt the correct test when examining the question of breach of duty.