Essay question

“Despite Lord Browne Wilkinson’s obiter comments in Bolitho, the Bolam test remains an insurmountable hurdle for claimants to succeed in clinical negligence actions”.

Discuss this statement with reference to case law.

Outline answer

The focus of this question is upon an evaluation of the standard of care expected in medical negligence cases. A critical evaluation of the Bolam test is required as well as a consideration of the actual or potential effect of Bolitho.

Remember that in cases of medical negligence all three components, namely a duty of care, breach of duty and causation, have to be proved by the claimant on the balance of probabilities. Establishing a duty of care in a doctor and patient relationship is not usually difficult and will exist in most situations. However, establishing breach of duty and causation can be more problematic.

With regard to breach of duty, the question that arises is whether or not the claimant received a standard of medical care that was acceptable in the circumstances. If the answer to this is yes, then the claimant will fail. If the answer is no, then the case continues to the next stage in respect of establishing causation.

The traditional test used to establish breach of duty is to measure the standard of care received against the Bolam standard. You might wish to recall McNair J’s comments in this case, encapsulated in the principle 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 professionals skilled in that particular art. This means that if a responsible body of professionals would support the defendant’s action then that standard (according to the Bolam test) is acceptable (even if there is a body of opinion that is to the contrary).

The Bolam test has come under considerable criticism in the academic literature on the basis that the standard is set by the medical profession, rather than by the court. The test has been perceived as being too high a burden for claimants, too deferential to doctors and lacking in external objectivity. Consider these criticisms and also consider how the Bolam test has been applied in practice, such as in the context of diagnosis (Maynard) and treatment (Whitehouse v. Jordan). While it may be considered acceptable in these circumstances where medical expert opinion is necessary, it is important to consider whether the same should apply to information disclosure in the context of consent. Although previously, in Sidaway, the Bolam test was held to apply, this doctor centred approach has now been replaced by a patient-focused perspective in Montgomery.

In the case of Bolitho, the Bolam test was commented upon in the House of Lords. Remember, however, that the ratio of Bolitho concerned causation and not the standard of care. Lord Browne Wilkinson’s obiter comments qualified the Bolam standard by stating that the body of opinion relied upon should have a logical basis, which means it should be capable of withstanding logical analysis and external scrutiny. In other words, if there were two differing bodies of opinion regarding the standard of care, it is for the court to scrutinise these and accept the one that is more plausible. So whilst Bolitho may not have altered the substance of the Bolam test, it has applied a gloss to it. Consider also the cases of Reynolds and Marriott where the court took a more interventionist stance towards the application of the Bolam standard. You may wish to provide your own critical thoughts as to how you see the Bolam standard in the balance and whether Bolitho has modified the test sufficiently so that it is less difficult for claimants to overcome, and draw your conclusions on the basis of your discussions. Finally remember that causation must still be proved to succeed in medical negligence.