He suggested a distinction between freedom (particular acts) and autonomy which is more pervasive and alluding to states of an individual [16]. Kennedy I, & Grubb A. Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1AC 871, Smith v Tunbridge Wells Health Authority (1994) 5 Med LR 334, 339, South Australian Asset Management Corp. v York Montague Ltd. (1996) 3 All ER 365, 371-2, Sutherlund H, Lockwood G, Till J. Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771 is an important English tort law case, on the standard of care required by medical specialists. After considering the pros and cons of each option, the third alternative was chosen – to retain the . ... Pros And Cons Of Drug Testing 1116 Words | 5 Pages. People flock to health institutions when in need of therapeutic assistance, therefore, to some degree trust in its prudence is necessary. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The doctor in this case failed to dispense the relaxants and also neglected to fasten restraints on the patient. The fragility of this ‘sacred’ relationship and the accompanying risk factors pave the way for potentially serious claims to be generated. Pros and cons of external cephalic version, planned vaginal breech delivery and elective caesarean section External cephalic version. In a Cochrane review, 17 ECV appeared to be a safe and effective way of reducing the number of elective caesarean sections for breech presentation but there was not enough evidence to quantify serious complications. Terms in this set (56) Tassbaum 'Doctor' has no medical qualifications, performed breast exams on three women. The Bolam test is unique to the medical profession and compares and contrasts the treatment given against that which you would reasonably expect from a medical professional in the same position with the same experience/level of training. Clearly, this test has an element of A patient has incapacity when, if at the material time, she: In general terms a patient can either claim battery if they can prove that the procedure was performed without their consent or they can claim for negligence if they can show that the information they were given was insufficient for them to be able to give informed consent. London: Royal College of Surgeons, 1997. A dialogue is required 5. Although the courts have recognised the right to informed consent[11] and have widened the scope for claims in negligence where the patient has established that they did not have informed consent[12], people in the medical profession have expressed their fears concerning the ability to be able to explain to patients all the potential pitfalls of the procedure. Whether this mindset is a consequence of a lucid admiration for the esteemed profession or due to the complexities of medical evidence, it is coherent that this partiality has manifested in the past. He stated in this case that if a mountaineer had sought an opinion about the condition of a his knee before attempting to climb a mountain and the doctor declared his knee to be fit but then the mountaineer suffers an injury not related to his knee, such as a landslide, then the doctor should not be liable for the injuries sustained. test. Promoting the best interests of a patient is a notion held most dearly by the medical profession, yet some may argue that this acclamation can in some situations undermine the wishes of a patient. Or, most likely, several approaches in combination will be most successful. The so-called Bolam test (from Bolam v Friern Hospital Management Committee [1057] WLR 582) is well-established as the test for negligence – the claimant must show that the practitioner did not act in accordance with a practice accepted as proper by a responsible body of medical professionals, skilled in that particular area. Gestalt Therapy Essay 2774 Words | 12 Pages. Medical law. A patient may feel his autonomy is being crippled by the purported omniscience of a practitioner. An obligation to give a patient all the information available to the doctor would often be inconsistent with the doctor’s contractual obligation to have regard to the patient’s best interests. Bolam. Due to McNair J’s verdict, judges are significantly distanced from affairs. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. Reference this. The author of this research paper discusses the advantages and disadvantages of using e-recruitment as a form of the job advertisement. Re B (A Minor) (Wardship: Sterilisation) [1987] 2 All ER 206, Re D (A Minor) (Wardship: Sterilisation) [1976] 1 All ER 326, Re KB (adult) (mental patient: medical treatment) (1994) 19 BMLR 144, Re M (A Minor) (Wardship: Sterilisation) [1988] 2 FLR 497, Re W (a minor) medical treatment: court’s jurisdiction) [1993] Fam 64, [1992] 4 All, Rogers AE, Addington-Hall JM, Abery AJ, et al. Subsequent tests developed in Anns ... the court may deny Caparo of any significance and move towards the Nicholas H approach of weighing up the pros and cons in granting the claim. It is Women did not have genuine consent due to his lack of qualifications. Background. breach of duty in order to determine whether defendant is in breach of his duty of care, the law sets standard which effect is that the conduct of the defendant Innovative treatment may be tested without undue trepidation, benefitting both practitioners and patients. 3. Despite the fact that several cases have overruled Bolam the courts are still insistent that the plaintiff must establish causation in order to hold the doctor as responsible for the outcome of the treatment. Mason & McCall Smith, Law and Medical Ethics, 5th Ed 1999, Butterworths. There have been several cases over the years where the courts have had to decide whether to allow the parents or guardians of mentally handicapped patients to instruct doctors to perform invasive treatment on the patient. That is not to say that paternalism is fruitless and ineffectual in all scenarios. Montgomery. 22nd Jul 2019 ... Chester’s ‘consent’ was obtained as an event, a single consultation, with minimal time to allow her to ponder the pros and cons of surgery. test, retention of the test and the application of the test to some but not all of the aspects of a doctor’s scope of work. This test was by no means a novel idea and considering that medical practitioners possess unequivocally specialist skills it is certainly to be expected that they be judged in accordance with those fellow professionals that are fairly adequate in their vocation. This has been particularly the case in relation to the sterilisation of those who are mentally handicapped. Likewise, there existed conflicting medical practice about alerting patients to this risk, some doctors believing that a prompt may prevent the patient from accepting this helpful therapy. London: General Medical Council, 1999: 2. . Therefore, the only possible occasion where paternalism may benefit an individual is in the instance where a ‘new life’ is championed as superior to one that may have otherwise been led [19]. Therefore, this demeanour serves as a hunting ground for academics and patients’ rights activists who interpret this lethargic attitude as evidence for the prevalence of medical paternalism over autonomy. The medical province was however, able to find sanctuary under the aegis of an English court room where judges had developed a vehement and preservative attitude towards this universally revered vocation. Dickenson, D. (1994) Children’s informed consent to treatment: is the law an ass? sdra2332. From the practitioner’s lens, a paternalistic approach is backed by the allegiance with the Hippocratic Oath; a solemn marriage to consider what is best for the patient at all times. Here a breach is revealed once a doctor has descended below the recognised standards of practice on the clinical scale and consequently, by act or omission, inflicted some sort of detriment upon the patient. The patient in this case displayed the symptoms of Tuberculosis, but the doctors could not rule out several other illnesses. In such, the test to determine the standard of care of a medical professional can be found in the case of Bolam v Friern Hospital Management Committee. To export a reference to this article please select a referencing stye below: If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! The test of materiality is patient specific 4. The decision of the court in Rogers v Whittaker 1992 highlighted the legal duty of doctors in relation to the disclosure of information concerning the prognosis and treatment of the patient. Prima facie, the Bolitho judgment implies that patient interests are not being neglected as it was affirmed that medical specialists cannot be free to adjudicate on their own matters. Title: The impression gained thus far is that, while the courts are increasingly determined to see the Bolam (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118) principle is not extended, they still have an innate reluctance to abandon it in respect of medical opinion (Mason & McCall Smith’s; Law and Medical Ethics (7th ed) page 317) Critically discuss this statement with reference to standard of care and causation in clinical negligence. This is particularly the case in relation to those who have to be forcibly placed in mental institutions either for their own safety or for the safety of others. The Bolam test is unique to the medical profession and compares and contrasts the treatment given against that which you would reasonably expect from a medical professional in the same position with the same experience/level of training. The court applied the Montgomery test and decided that the risk was not material as the claimant was prepared to accept the background risk of having a disabled child, having de facto accepted that risk in relation to a test for Down syndrome (risk of 1 in 1753). The sentinels of the medical field, namely doctors, are positioned in a jeopardous environment that warrants protection. The case Bolam v Friern Hospital Management Committee (1957) 1 WLR 583 established that if a doctor acts in accordance with a responsible body of medical opinion, he or she will not be negligent. Negligence occurs as a result of a person breaching a duty of care that is owed to another person, and the damage that consequently ensued was not too remote to that breach. This sector in medical law recognises the importance of autonomy over paternalism; however, this area can potentially become troublesome once an element of late pregnancies is adjoined [26] . Of course, in medical scenes where the patient is mentally incapable of adopting a ‘best interest’ decision befitting the situation, paternalism can suddenly appear alluring. This will be discussed in more detail further into this study. The much esteemed Bolitho, prima facie, heralds a new dawn [7] of a shift in credo from an anachronous partisanship to a more equitable character; this paper will inspect such allegations, determining whether the Bolam test is now an outdated relic of a more paternalistic past or has survived into the 21st Century. Medical Law This is not an example of the work produced by our Law Essay Writing Service. The Bolam test (if the doctor acted in accordance with a school of thought accepted as reasonable by a responsible body of medical opinion, he was not negligent) has its drawback in referring the morality of an act by an individual to the views held by his peers instead of relying on the principles of morality. Brazier characterises the paternalism trend as becoming an archaic ideology and indicative of a primitive mindset, commenting specifically on the fundamental disparities between the notions of paternalism and beneficence [27] . The Bolam case concerned a depressed patient who was voluntarily undergoing electro convulsive therapy at a mental health institution. The Bolam test which demonstrates that a medical practitioner is incapable of negligence if his actions are certified as suitable by a ‘responsible body of medical opinion’ [3] enhances this impression. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. Therefore, it is integral to this moot that the case is contextualised to its roots in the early 1950s, bearing in mind the social attitudes of the time towards paternalism and autonomy. test, retention of the test and the application of the test to some but not all of the aspects of a doctor’s scope of work. And yet tiny nuances are … A short history of the Bolam test - a keystone of medical negligence law for 60 years. It is thus unsurprising that judicial deference exists as the repercussions of legal verdicts can have a debilitating effect on the medical terrain. Cases such as Re W[20] and Re KB[21] demonstrate the power of the court to order the patient to be force fed. Conversely, the medical practitioner will dislike and disparage any attempt to undermine the notion that the ‘doctor knows best’. Title: Legal standard of care: a shift from the traditional Bolam test Created Date: 8/10/2007 5:51:59 PM In Bolam v Friern Hospital Management Committee, the court laid down what is called the 'Bolam test'. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Bolam. The judge proclaimed, that the negligence test in the province of medicine mandated for a standard of ‘the ordinary skilled man exercising and professing to have that special skill’ [34] . Lord Diplock commented that the doctor was right to refuse to warn the patient of the possible complications. Consequently an erratic ambience is created, nurturing a confrontation between both doctor and patient. Test. Nonetheless, closer scrutiny paints an inherently dissimilar picture; special treatment and protection afforded to the medical profession permeates this sphere owing much to the reluctance of the courts to challenge medical judgment. In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health Authority[3]. The existence of the practice is not of itself determinative of the issue of breach of duty. It is evident from this that although there is no specific legislation in this area the right to informed consent is recognised. Since most doctors learn through practical experience this could be denied to them if the courts were to follow the model established in Australia and insist on doctors disclosing their level of expertise to the patients. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. Where clinical negligence is claimed, a test used to determine the standard of care owed by professionals to those whom they serve, e.g. Abstract. The extent of the warning that needs to be given in line with the decision of Chappel v Hart has made it easier for patients to be able to successfully prove negligence as many doctors fail to provide the amount of information that this case states needs to be disclosed. The educational psychologist applied for the wardship in order to prevent the operation as the child was not sufficiently mentally retarded such that she might not be able to have the necessary capacity in the future to marry and consent to having children. In these studies the authors concluded that it was impossible to assert with authority that the patients had given informed consent to the treatment as many of those who participated in the research did not seem to fully understand the information they had been given. Doctors had not warned him about the risks involved. The Bolam test Scrutinising the anti-paternalistic argument, he assesses Ronald Dworkin’s claim that people have ‘critical interests’ which occasionally can be mistaken. R v Richardson. In the case of Smith v Tunbridge Wells Health Authority[27] the court stated that the patient could not be deemed to have given informed consent as the doctors had not properly explained the risks involved. Medicine is inherently an arduous and technically convoluted discipline that requires a special degree of expertise and dexterity; skills that are not necessarily colloquial within the general public. However, upon appeal the House retired its option to scrutinise the evidence and simply applied the dictum of Bolam, thus exonerating the defendants. the Bolam Test, derived from a case between Bolam v Friern Hospital management com-mittee (1957). He was able to breathe unaided but was never going to awake from this state. Some information might confuse, other information might alarm a particular patient. . Nonetheless, equivalent arguments can be made from a patient’s perspective who having suffered a loss may conceivably have to live with it for the duration of his life. This was emphasised in the case of South Australian Asset Management Corp v York Montague Ltd[29] in which Lord Hoffman made the point that it would be wrong to hold a doctor responsible for an unforeseeable event. They can’t test for clotting disorders if you’re anticoagulated (I’m a medical laboratory technologist) because the drugs interfere with the tests and you can’t get accurate results. This proposition works as it provides a justification for placing limits on the power exercised by doctors as ‘unilateral decision-making power on the basis of medical dominance’ would replace a ‘system of medical paternity for patient autonomy’ [13]. It took almost 2 years before I felt like my pre-clot self. The courts allowed his parents as next of kin to be able to make that decision for him, knowing that the removal of the tube would result in his death. It will get better, but it takes time, longer and more slowly than I thought. You can view samples of our professional work here. Reference guide to consent for examination or treatment. Prior to these comments, in Salmond’s Law of Torts, it was claimed that negligence alludes to an ethical concept as general practice itself may not be on equal terms with the ‘standard of care required of a reasonably prudent man’ [43] . ... a small piece of empirical work is presented as an illustration of the pros and cons of such an approach and as a possible springboard for future research. productivity and ultimately liability concerns. It could be argued that this part of the test does not really afford a distinctive bias towards the medical profession than it would to any other line of work. If the treatment … Depending on the circumstances, one approach may be more appropriate than another. The UK Supreme Court Montgomery judgment marks a decisive shift in the legal test of duty of care in the context of consent to treatment, from the perspective of the clinician (as represented by Bolam rules) to that of the patient. Registered Data Controller No: Z1821391. Indubitably, it is an arduous task to strike a balance between the best interests and wishes of the patient. The Government rejected this criticism of the Act stating that this was unlikely to ever happen as the hospital would be able to rely on s62 of the Mental Health Act 1983 which gives the institution the right to force feed the individual regardless of consent from the individual. He noted that many did not fully understand the prognosis of their condition or the treatment that the doctors were proposing. Consideration will be given to the standard of care patients have received as well as causation in situations where clinical negligence as been averred. Indeed a growing ethos within the NHS nowadays is that of harmonious participation where doctors work with patients. For obstetricians, there are particular implications about maternal choice – Lady Hale’s concurring judgment highlights that doctors should advise on the pros and cons of vaginal delivery and caesarean section in any situation where either mother or child is at greater risk from vaginal delivery. Is also paramount the first instance judge decided to, erroneously, choose between the conflicting testimonies scope misuse! V Bland [ 1993 ] A.C. 789 by Lord Hoffman that the ‘ doctor knows ’! Thus unsurprising that judicial deference exists as the repercussions of Legal verdicts have! Results of sputum tests and proceeded to carry out an operation been given their. 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