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The Historical Significance of the Bolam Test
- Feb 20, 2023
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The Historical Significance of the Bolam Test
The Bolam Test is a means of assessing clinical negligence in Court. It was introduced in the wake of a landmark case in 1957, Bolam v Friern Hospital Management Committee, and it is used to define the minimum standard of care that a doctor must provide in order not to be found guilty of negligence. It states that: “if a doctor acts in accordance with a responsible body of medical opinion, he or she will not be negligent.”
In this article, we take a look at the key facts of the Bolam v Friern Hospital Management Committee case, as well as at the history of the Bolam Test. To read our history of the Bolitho Test, click here.
The facts of the case
John Hector Bolam suffered from depression, and in 1954 he voluntarily admitted himself to Friern Hospital, a mental health institution in north London. He agreed to undergo Electroconvulsive Therapy (ECT), a common treatment for depression.
He received the treatment in what was known as an “unmodified” form, which is to say that he was given no muscle relaxants. He was not restrained in any way, except for the fact that his treatment was overseen by nurses.
ECT involves attaching electrodes to the side of a patient’s head and sending a brief electric pulse through their brain. The aim is to induce a seizure. In undergoing ECT, Mr Bolam experienced violent muscle spasms, causing him to fracture both his hips. In response, he sued the Friern Hospital Management Committee, claiming that:
1. Had he been warned of the risks, he would not have undergone the procedure.
2. The doctors and nurses had been negligent in not providing him with a muscle relaxant.
3. The doctors and nurses had been negligent in not restraining him.
The judge presiding over the case heard evidence from a number of Expert Witnesses, who noted the following.
First, in relation to the matter of prior warning and risk, it was not common practice at that time for doctors to inform their patients about the risks of a procedure. While this may seem strange nowadays, it is important to remember that the Bolam case occurred in the 1950s, during the early days of the National Health Service. The NHS Litigation Authority (now NHS Resolution), which handles all cases of medical negligence on behalf of the NHS, was not founded until 1995. In the 1950s, the medical community was held to maintain a different kind of authority and autonomy than it does today.
Second, as far as negligence was concerned, the Expert Witnesses gave a range of different opinions about whether or not they themselves would have recommended the use of muscle relaxants or restraint. Importantly, several among them noted that they would not have used either in Mr Bolam’s case. This led the judge to decide that the doctors and nurses had not acted negligently in their treatment of Mr Bolam.
In his statement, the judge referred to an earlier test of professional negligence issued in relation to the case of Hunter v Hanley in the Scottish courts in 1955. In this earlier case, the judge had argued that:
In the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion, and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved guilty of such failure as no doctor of ordinary skill level would be guilty of, if acting with ordinary care.
In other words, a doctor must demonstrate that at least one other medical professional with an ordinary level of skill would have acted in the same way in delivering an ordinary level of care. In accordance with this previous ruling, the judge for the Bolam case concluded 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.
As this judgment shows, the Bolam Test simply requires a doctor accused of negligence to demonstrate that other doctors would (or could) have acted in the same way when delivering care. Precisely what this means, however, has been challenged in a number of landmark cases over the course of the second half of the twentieth century.
One of the most important of these was the case of Whitehouse v Jordan (1980), the ruling for which was appealed in 1981. In this case, a senior hospital registrar used forceps to assist delivery during a high-risk pregnancy. As a result, the baby suffered severe brain damage after the birth. The mother alleged negligence, but the claim was denied on appeal. The doctor was deemed to have made a mistake, but he was not found to have been guilty of negligence, since a responsible body of Expert Witnesses stated that they too might have made the same mistake in similar circumstances. This clarified the protections afforded to medical professionals who make mistakes under the terms of the Bolam Test:
If [an error] is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent.
At times, some commentators have wondered whether the protections provided by such clauses might be considered too extensive. One of the problems they have pointed to is that the Bolam Test does not specify the number of doctors required to make up a “responsible body” of opinion. Thus, the question arises: if a minority group of medical professionals maintain that they would adopt a certain practice, even though it goes against the general majority view, can the minority opinion be sufficient to excuse a practitioner of acting negligently? The importance of this was explored in De Freitas v O’Brien (1995), in which the judge gave the following ruling:
If it appears from the evidence that the body of medical opinion relied upon by the defendant is both very small and diametrically opposed in its views to the conventional views of the vast majority of medical practitioners, the court should be vigilant in carrying out its duty to test whether the body of medical opinion relied upon by the defendant is a “responsible” body.
While the judge stated that this was not simply a quantitative matter that could be resolved by “counting heads,” the ruling did draw attention to the fact that the Bolam Test should not simply be applied on the basis of a minority opinion.
To a certain extent, it could be argued that this ruling represented the first step in a series of changes that altered how the Bolam Test was perceived by the Courts. These changes culminated with the introduction of the Bolitho Test in addition to the Bolam Test. This test stipulated that, as well as acting in a manner acceptable to a responsible body of medical opinion, a doctor must act in a way that correlates with the Court’s own “independent logical analysis.”
As a result, some have claimed that the Bolitho Test restructured the balance of power between the medical community and the Court, since it asserted that, while it is the responsibility of the medical community to establish the standard of care, it is the responsibility of the Court to set and uphold the law. This is explored in our in-depth account of the history of the Bolitho Test, which can be found here.
This post is provided for general information purposes and is not intended to cover every aspect of the topics with which it deals. It does not constitute medical, legal, or professional advice, nor is it necessarily an endorsement of the views of Professor Elliott, the U.K. Centre for Medico-Legal Studies, its employees, or its affiliates. Though we aim to ensure that all information is accurate at the time of posting, we make no representations, warranties or guarantees, whether express or implied, that the content in the post is complete or up to date.
This article is provided for general information purposes and is not intended to cover every aspect of the topics with which it deals. It does not constitute medical, legal, or professional advice, nor is it necessarily an endorsement of the views of Professor Elliott, the U.K. Centre for Medico-Legal Studies, its employees, or its affiliates. Though we aim to ensure that all information is accurate at the time of posting, we make no representations, warranties or guarantees, whether express or implied, that the content in the post is complete or up to date.