We Need To Talk About Bolam

The first in a series of posts – (1) [ Next >> ]

Introduction

Scotland – Hunter v Hanley

In 1955 the doctor’s general duty of care towards a patient was first described by Lord President Clyde in the Scottish case of Hunter v Hanley [1]. This case was heard by a jury which was normal at that time. The words of Lord Clyde are found in the reclaiming motion (appeal) on the direction to the jury [2].

He famously said:
“[i]n the realm of diagnosis and treatment there is ample scope for genuine difference of opinion.”
“one man clearly is not negligent merely because his conclusion differs from that of other professional men.”
“The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill and care would be guilty of if acting with ordinary care.”

Hunter v Hanley – The Facts

This was an action for damages against a doctor as a result of an injury sustained when a hypodermic needle broke when the claimant was receiving an intra muscular injection of penicillin.
One of the grounds of fault was that the type of needle used was not strong enough to be used for this type of injection and that any doctor possessing a fair and average knowledge of his profession would have known this.
At the trial the jury were directed on the test to be applied and the judge used the term “gross negligence” as the appropriate formulation of the duty. The jury returned a verdict for the defender and the claimant enrolled a motion for a new jury trial on the ground of misdirection on this issue.

Argument In The Appeal

It was argued on behalf of the claimant that there had been an error in directing the jury that the standard of care required from a medical practitioner differed from the ordinary common law standard.
It was said that the standard of care to be applied was that of the “reasonable man” following on from the decision in Donoghue v Stevenson [3]. There were no degrees of negligence and there was no different liability in the case of a professional man. There was reference to the fact that the only reported case in Scotland dealing with the liability of a medical practitioner had applied the ordinary standard of negligence [4] and the concept of “gross negligence” should not be applied in a civil case.
The defenders argued that the charge to the jury was correct in saying that the jury required to be satisfied that the defender had so far departed from normal and usual practice as to be guilty of “gross negligence”. This did not mean that a doctor or professional had a greater immunity from civil responsibility than a layman but where there was a “normal and usual practice” he was not at fault unless he greatly departed from it. There had to be consideration of the special circumstances of medical practice.

The Decision

The claimant was allowed a new trial based on the misdirection given to the jury by the trial judge on the issue of negligence. However, what became important was the court’s analysis of the standard of care required from a medical practitioner and this standard had not been clearly stated in Scottish law up to this point in time.
It was recognised that to succeed in an action based on negligence, whether against a doctor or anyone else, it is necessary to establish a breach of duty to take the care the law requires, and that the degree of want of care which constituted negligence must vary according to the circumstances of the particular case. It was felt that in the case of a doctor or other professional man the circumstances were not clear cut and for that reason the test was set down to focus on a failure that no doctor would be guilty of if acting with ordinary skill and care. The Scottish test was subsequently approved by the House of Lords and referred to in Bolam [5].

England – “Bolam”

In England two years later McNair, J reformulated the test found in Hunter v Hanley in his classic statement in Bolam v Friern Hospital Management Committee [6] and said:
“But where you get a situation which involves the use of some special skill or competence, then the test is not the test of the man on the top of the Clapham omnibus because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have the skill. A man need not possess the highest expert skill at the risk of being found negligent…it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.“
Having decided that a different test was required in the case of a person with some special skill he then formulated a test to be applied where there is evidence of different professional approaches:
“a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men (sic) skilled in that particular art…Putting it the other way round, a [doctor] is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion [who would take] a contrary view.”

Bolam – The Facts

In the Bolam case, John Hector Bolam suffered fractures to his acetabula when he was undergoing electro-convulsive therapy (E.C.T.) to treat depression at the defendant’s hospital. During the course of the treatment an electric current was passed through his brain. It was known that one of the effects of passing an electric current through the brain is to precipitate violent convulsive movements in the form of a fit or spasms.
The treating doctor Dr Allfrey, Consultant Psychiatrist in accordance with his normal practice, had given Mr Bolam E.C.T. unmodified, with no muscle relaxants and without applying any form of manual restraint other than support to the chin and shoulders. Nurses were present on either side of the couch in case he fell.
The claimant claimed damages alleging that the defendants were negligent:
i) in failing to administer any relaxant drug prior to the passing of the current through his brain;
ii) and since they had not administered the relaxant drug, in failing to provide at least some form of manual restraint or control beyond that given
iii) in failing to warn him of the risks involved in the treatment.
Applying the tests set out by McNair J the jury took 40 minutes to acquit the defendant of negligence.

Expert Witness Evidence In Bolam

Expert witnesses were led by each side and they gave evidence about the different techniques they adopted in giving E.C.T. treatment. The claimant’s expert said he considered that relaxant drugs should be used but accepted that there was a large body of competent persons, whose opinion he respected, who took a contrary view. His personal opinion was if relaxants were not used then some form of manual restraint was required but he agreed that there was a school of thought that took a different view and some thought the more restraint used the greater the risk of fracture.
Dr Bastarrecha, gave evidence for the defendants despite the fact he was Dr Allfrey’s chief in the hospital. He said he was opposed to the use of relaxants as there was a risk of mortality using the drugs and the risk of fracture was low.
Other witnesses gave evidence of different techniques adopted when giving E.C.T. There appeared to be variants in practice. Some used restraining sheets, some manual restraint and some used relaxant drugs but it was agreed that there was a firm body of opinion that was opposed to the use of relaxant drugs.
The defendants had previously used manual control but had not done so since 1951, as it was their view, borne out by experience that the less restraint there was the less risk there was of fracture.

Direction To The Jury On The Law

It must be borne in mind that this important statement of law came from a direction to a jury to assist them in making a decision in the case.
The conflict of medical evidence was the starting point for the direction of McNair J. to the jury. He concluded that because a practice is followed by one body of doctors it is not negligent merely because it was disapproved of by other doctors (see above). However, he also said that the jury should bear in mind that their task was to address whether in failing to take the action that it is said Dr. Allfrey should have taken, he had fallen below a standard of practice recognised as proper by a competent reasonable body of opinion.
He commenced his direction by emphasising that the injury sustained by Mr Bolam was a rare injury. The jury had heard evidence from an expert that he had only seen one acetabular fracture in 50,000 cases.
He then asked the jury to remember a person went into a mental institution suffering from “one of the most terrible ills from which a man can suffer” with “little hope of recovery” until death released him from his sufferings.
He reminded them with the treatment of E.C.T the patient now had a real chance of recovery. He directed that when the jury considered whether negligence was proved they had to consider the question against that background and bearing in mind the enormous benefits conferred upon “unfortunate men and women” by this form of treatment.
He said that it had not been suggested that Dr, Allfrey or anyone at the hospital was in any way indifferent to the care of their patients which must have doubtful relevance in law. There was no suggestion of indifference in the action.
Turning to the how the jury should interpret the law McNair J advised that in the ordinary case “which did not involve any special skill”, negligence in law meant a failure to do some act which the “reasonable” man in the circumstances would do, or not and if that failure resulted in injury there is a cause of action. He referred to the “ordinary man” or the conduct of the man on the top of a Clapham omnibus.
He then distinguished the test to be applied where there was a ‘skilled man” or a man exercising and professing to have a special skill and immediately set apart the medical profession from the general principles normally applied.
It was submitted on behalf of the claimant that the question was whether there was a failure to act in accordance with the standards of reasonably competent medical men at the time. McNair J considered that to be an accurate statement as long as it was remembered that there may be one or more perfectly proper standards.
McNair J advised the jury that they required to consider whether Dr Allfrey was a careful practitioner interested in his art, giving thought to different problems, or whether he was a man quite content just to follow the swim. This appears to suggest some sort of analysis beyond simply accepting practice of the profession. He then said the jury had to make up their minds whether in following the practice not to use restraint or relaxants he was doing something no competent medical practitioner using due care would do, or whether, on the other hand, he was acting in accordance with a perfectly well-recognised “school of thought”.
He agreed that a mere personal belief that a particular technique is best is not a defense unless that belief is based on reasonable grounds. In saying this McNair J does appear to be permitting some analysis of the reasonableness of the conduct.
It was submitted by the defendant’s Counsel that if the jury were satisfied that the doctor was acting in accordance with a practice of a competent body of professional opinion it would be wrong to hold negligence was established. McNair J accepted this but qualified the statement by saying that this did not mean that a medical man could obstinately and pig-headedly carry on with the same old technique if it had been proved to be contrary to “informed medical opinion”. Again, this would suggest some sort of logical analysis of the practice.
There was reference to the dicta of Lord President Clyde in Hunter v Hanley and he said that it was not essential for the jury to decide which of the two practices was the better as long as the jury were satisfied that what the defendants did was in accordance with a practice accepted by responsible persons and judged by what was done at the time of the injury.

Bolam The Consent Argument

In Bolam there was an issue of information disclosure (consent). It was the practice of the defendants’ doctors not to warm patients of the risks of E.C.T. treatment (which they believed to be small) unless asked. If the patient asked they said that there was a slight risk. There was also a suggestion that warning of the risks might deprive mentally ill patients of their only available hopeful remedy.

Comment

In Bolam McNair J referred the jury to the Hunter v Hanley test and whilst formulating it in a different way from Lord President Clyde again accorded medical professionals a special status in law from the reasonable man or the man on the Clapham Omnibus.
There is no doubt that what is normally done by professionals should be relevant to the court in the assessment of negligence, but it should not be determinative. The test as developed from Bolam placed significant emphasis on the standards accepted by the profession without judicial analysis of those standards and effectively handed over to the medical profession what essentially is a judicial role.
The statement by McNair J in Bolam was later approved in a number of cases [7] and was said to be applicable to any profession or calling that requires special skill, knowledge or experience [8].
However as was said by Lord Woolf in January 2001
“The problem with Bolam is that it inhibited the courts exercising a restraining influence. The courts must recognise that theirs is essentially a regulatory role and they should not interfere unless interference is justified. But when interference is justified they must not be deterred from doing so by any principle such as the fact that what has been done is in accord with a practice approved by a respectable body of medical opinion.”
The next in the series of blogs on this topic considers the impact of Bolam and whether the courts in the UK could have chosen to develop the UK law in a different direction less protective of medical professionals.

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[1] 1955 SC 200; 1955 S.L.T. 213
[2] In Scotland, the claimant in a clinical negligence case still has the right to trial by jury.
[3] sub nom. McAlister v Stevenson [1932] A.C.562; 1932 SC (HL) 31
[4] Farqhuar v Murray 1901
[5] Bolam v Friern Hospital Management Committee, [1957] 1 W.L.R. 582; Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634 at 638; Sidaway v Bethlem Royal Hospital Governors [1985] A.C. 871 at 879
[6] [1957] 1 W.L.R. 582
[7] Whitehouse v Jordan [1981] 1 W.L.R. 246; Sidaway v Bethlem Royal Hospital Governors [1985] A.C.871;Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634
[8] Gold v Haringey Health Authority [1988] Q.B. 481 at 489; Whitehouse v Jordan [1981] 1 W.L.R. 246 at 258