Friday, 25 January 2013

Giving Bolam a Nip and a Tuck

If there is one passage in one clinical negligence judgment which all clinical negligence practitioners know, it is McNair J's in Bolam-v-Friern HMC [1957] 1WLR 582 where he says that 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 man 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."

The "body of opinion" does not have to be large  - De Freitas-v-O'Brien [1995] PIQR P281 Court of Appeal. It does have to be reasonable or responsible. If the doctor professes to exercise a special skill he or she must exercise the ordinary skill of his or her speciality - Maynard-v-West Midlands RHA [1984] 1WLR 634.

The Bolam test has been applied not just to surgeons and medical practitioners, but to dentists, nurses, midwives and health visitors. The Bolam test was applied to chiropractors in O'Loughlin-v-Greig (QBD) 15.11.99 a decision of Curtis J which is summarised on Lawtel at AC 7000267.

The question of whether a body of opinion is reasonable or responsible is one for the court. In Bolitho-v-City & Hackney HA [1998 [AC] 232Lord Browne-Wilkinson said "the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant's treatment or diagnosis accorded with sound medical practice.... in some cases it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible."

The Bolitho judgment is a guard against the courts being bound to accept the prevailing standards, or at least the prevailing standards of some (body of) current practitioners as setting the standard for acceptable practice. In litigation concerning NHS practice there will not be many occasions where, in the face of evidence that the defendant acted in accordance a practice accepted as proper by a body of medical men and women skilled in that particular art, the court finds that the practice was irrational or the body was unreasonable or not responsible.

In areas of medical practice outside the NHS, particularly in a highly developed commercial setting such as cosmetic surgery, and in healthcare fields where there are fledgling professional organisations, or where the practice as a whole is not regarded as mainstream, then the courts may well have to have closer regard to Bolitho.

The difficult question in relation to say, private cosmetic surgery practice, is to identify what is a responsible or reasonable body of opinion. Must a surgeron act in accordance with the practices considered acceptable by, say, BAAPS or BARAPS, or is that setting the bar too high? But if the court does not apply the standards of a professional body, then do the commercial providers themselves in effect set the standard? Should the courts take into account the commercial pressures on surgeons or, put more neutrally, the commercial realities in which they work? Should a patient who chooses a less expensive provider expect the same quality of care as one who pays more? Is there a minimum level of service, skill and care below which no provider should fall no matter what they charge and what warnings are given to the patient electing to undergo the treatment?

These difficulties illustrate why the role of regulation is, and might become more, important in relation to setting standards which patients are entitled to expect.

The Bolam test may require a nip and a tuck when being applied to cosmetic surgery and healthcare services provided in a profit-driven market.


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