The Bolam principle, which is the keystone of the defence against medical negligence, is celebrating sixty years. Although the original case was related to the alleged negligence of a doctor, the test has become the universal yardstick applicable to all health professionals. There have been many trials and tribulations denting the Bolam principle, but its core still remains intact.
In 1954, John Bolam was admitted to Friern Hospital with relapse of depression. In accordance with the hospital’s usual practice of not administering a relaxant or applying manual restraint, the psychiatrist Dr Allfrey gave him electro convulsive therapy (ECT). Nurses were present on either side to prevent him from falling off the couch, but Bolam suffered acetabular fracture of both hips.
He sued, alleging that the hospital was negligent in (a) not giving muscle relaxant (b) failing to provide manual restraint during convulsions and (c) failing to warn him of the risks. At the trial, the expert witnesses said that a large body of medical opinion was not in favour of using relaxant drugs. Some experts felt that more restraint meant more likelihood of fracture.
High Court judge McNair J directed the jury: ‘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 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 that takes a contrary view.’
The jury returned the verdict in favour of the defendants in the court case, heard in 1957, in a verdict that has become a key test for breach of professional duty.
A number of important cases have taken place since that have further shaped the legal landscape. The Hunter v Hanley case, in Scotland, preceded the Bolam case by two years, but illustrated the same principle. While treating Mrs Hunter for bronchitis, Dr Hanley gave a course of penicillin injections. During the 12th injection, the needle broke and part of it was left embedded in her buttocks. She sued Dr Hanley alleging negligence.
Lord President Clyde directed the jury: 'The true test in establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.’ The jury returned verdict in favour of Dr Hanley, although a retrial was ordered on technical grounds.
Two decades ago, two-year-old Patrick Bolitho - while in hospital - developed obstruction of the airway and suffered cardiac arrest, which resulted in brain damage and subsequently death. Although a doctor was called upon to attend, she failed to do so. The defence for the doctor argued that even if she had attended, she would not have intubated.
Expert witnesses gave different views - some saying they would have intubated, others that they would not. The case was dismissed because the court found that the doctor's only failure was not to attend - and that because she could reasonably have made the decision not to intubate she was not responsible for the boy's death.
In a 2015 case, Mrs Montgomery, a type 1 diabetic of small stature, developed shoulder dystocia when going into labour. Her baby developed hypoxia, leading to cerebral palsy. Dr McLellan, the obstetrician had failed to warn her of the risks and did not offer caesarean section, which might have prevented this. The Supreme Court ruled in favour of Mrs Montgomery despite attempts to defend her treatment based on the Bolam test.
The court based its decision in part on GMC guidance on consent, which advises doctors to 'tailor your approach to discussion with patients according to (a) their needs, wishes and priorities, (b) their level of knowledge about and understanding of their condition, prognosis and treatment options, (c) the nature of condition, (d) the complexity of treatment and (e) the nature and level of risk associated with investigation/treatment'.
It also considered DH guidance on consent for examination or treatment, which warns healthcare practitioners to 'remember their duty to keep themselves informed of legal developments that may have a bearing on their practice', highlighting human rights cases that have set out doctors' duty to involve patients in decisions relating to their treatment.
Although many challenges and amendments have occurred, still the over-riding gold standard of defence in medical negligence is the Bolam test. After 60 years, and almost since the NHS began, this case continues to play an important role in the lives of doctors and patients.