“The House of Lords decision in Bolitho (Bolitho
“The House of Lords decision in Bolitho (Bolitho v City and Hackney HA [1998] AC
232) is a belated and welcome departure from judicial deference to medical opinion but there is still too much deference and more has to be done”.
Critically comment on the above statement.
In any negligence claim, in order to succeed the claimant must show that he was owed a duty of care by the defendant, that the duty of care was breached, and that the breach of duty caused the damage complained of.[1] Kennedy and Grubb comment that the duty of care arises ‘from a request for medical services by an individual and a consequent undertaking by a doctor [or other health care professional] to provide these services.[2] Margaret Brazier has observed: ‘[a] patient claiming against his doctor … usually has little difficulty in establishing that the defendant owes him a duty of care’.[3]
The second stage of a clinical negligence action is to show that the doctor has breached his standard of care. In any negligence claim, the standard of care is set by law and is an objective standard.[4] Words such as reasonable or responsible are normally attributed to such a standard. Such adjectives are not normally equated with a practice that is ‘common’ or ‘accepted’. With respect to medical negligence claims however, the law has not taken such a view. The case of Bolam v Friern Hospital Management Committee[5] has established 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’. The Bolam case was a decision at first instance, but was later approved by the House of Lords in Whitehouse v Jordan.[6]
The courts have continuously taken a protectionist view of the medical profession in clinical negligence claims. Jackson acknowledges that this could be due to the complexity of medical evidence, but it could also be explained by a sense of professional solidarity.[7] The medical profession has been highly regarded in society, and the courts have also expressed their respect. In Wilsher v Essex AHA,[8] Mustill LJ comments:
“For all we know, [The doctors in this case] far surpassed on numerous occasions the standard of reasonable care. Yet it is said that for one lapse they (and not just their employers) are to be held liable in damages. Nobody could criticise the mother for doing her best to secure her son’s financial future. But has not the law taken a wrong turning if an action of this kind is to succeed?”
It is interesting to note the difference in policy in cases involving medical professionals. In other negligence cases, the courts have commented that the function of the law of negligence (and the law of torts in general), is to compensate injured parties for loss. The judiciary have had no moral objections to awarding damages in cases where they can apply the ‘deepest pocket’ principle. Thus, in Nettleship v Weston,[9] Lord Denning had no problems in asserting that a learner driver would be held to the same standard of a competent driver (competent would be ascertained on an objective basis by the court), as the driver would be insured and thus, the law will award damages from the deepest pocket. Yet, there has been considerable hesitation in holding doctors negligent for public policy reasons, despite the fact that doctors will be also be insured. Furthermore, doctors working in the NHS will generally not be personally held accountable for the negligence – the action is brought against the Trust vicariously and NHS Trusts in England and Wales are part of an ‘insurance like’ scheme, the Clinical Negligence Scheme for Trusts (CNST) administered by the NHS Litigation Authority.
The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors may adopt a different practice. ‘In short, the law imposes the duty of care; but the standard of care is a matter of medical judgment.’[10] In Maynard v West Midlands RHA,[11] Lord Scarman seemed to favour an approach that a doctor will not be negligent if there are other reasonably held approaches that are the same as the defendant doctor’s approach:
“I have to say that a judge’s ‘preference’ for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred … For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another.”
The pure Bolam approach is the subject of scathing academic criticism. Kennedy and Grubb comment: “It may seem curious that the law would defer to the medical profession in setting the content of the duty in negligence.”[12]
Despite the deference to the medical profession in the courts, there have been some exceptions and one example is the case of Hucks v Cole.[13] The case involved a pregnant woman with a septic finger whose doctor failed to prescribe her penicillin. The patient suffered puerperal fever as a result and a number of witnesses gave evidence stating that they would not have prescribed penicillin in the same situation. However, the Court of Appeal held that even if there are relatively small risks involved, the fact that it would have been easy to avoid such risks so easily and inexpensively, is clearly not reasonable. Sachs LJ comments:
“On such occasions the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not … conclusive. … Despite the fact that the risk could have been avoided by adopting a course that was easy, efficient and inexpensive, and which would have entailed only minimal chances of disadvantages to the patient, the evidence of the four defence experts to the effect that they and other responsible members of the medical profession would have taken the same risk in the same circumstances has naturally caused me to hesitate … The reasons given by the four experts do not to my mind stand up to analysis …”
The approach taken in Hucks v Cole was also adopted by the House of Lords in Bolitho v City and Hackney HA,[14] in which the traditional Bolam approach was departed from. Lord Browne-Wilkinson comments:
“In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.”
The relevance of the Bolitho decision was initially regarded as a major shift from the pure Bolam approach. Following the decision, Kennedy and Grubb comment that ‘the law has been put back on its proper course’.[15] Lord Browne-Wilkinson was suggesting that medical approach must be defensible and capable of withstanding logical analysis. However, he qualified this by stating that this would only occur in ‘rare’ cases. Hucks v Cole was certainly one of those rare cases, but it is arguable whether there has been a significant shift in approach by the courts. In Wisniewski v Central Manchester Health Authority,[16] the defendant did not follow a procedure that would have detected that a baby’s umbilical cord was wrapped around his neck during birth and the medical opinion differed over the reasonableness of such. Brooke LJ comments that:
“Hucks v Cole itself was unquestionably one of the rare cases which Lord Browne-Wilkinson had in mind … In my judgment the present case falls unquestionably on the other side of the line, and it is quite impossible for a court to hold that the views sincerely held by [the experts supporting the actions of the defendant] cannot logically be supported at all … the views expressed by [those experts] were views which could be logically supported and held by responsible doctors.”
There have been a small number of ‘rare’ cases where the courts have gone as far as questioning the logic and defensibility of medical authority. The case of Reynolds v North Tyneside Health Authority,[17] is one such example. Thus, Gross J comments that it is one of those ‘rare cases where the Court could and should conclude that such body of opinion was unreasonable, irresponsible, illogical and indefensible.’ Similarly, in Marriott v West Midlands RHA,[18] the Court of Appeal stated that the expert evidence given by the witnesses defending the doctor’s conduct could not be logically supported. The Court of Appeal also affirmed that the trial judge was entitled to question whether an opinion was reasonably held and Mason and Laurie comment that ‘[o]n the face of things, then, Marriott moves the Bolitho test from one of logic to one of reasonableness, which is much more akin to the reasoning applied in other, non-medical standard of care decisions.’[19]
The approach taken by the courts post Bolitho seems to suggest that the courts are only prepared to examine the credibility of witnesses and not the content of their evidence. So long as the evidence given is ‘truthfully held’ and ‘honestly expressed’ then the court is reluctant to question the evidence.[20] Furthermore, there have been a number of post-Bolitho decisions and it seems as though there is still a constant reluctance to question medical experts, and if there has been any departure from the traditional Bolam approach, this certainly seems to have been on the basis of the credibility of expert witnesses, and not on the reasonableness of their opinion. Thus, the subsequent case law suggests a somewhat restrictive approach on the modification of the Bolam principle in its new Bolitho interpretation.[21]
Writing extra judicially, Lord Woolf comments that there have been a number of reasons for a shift away from the traditional approach in Bolam.[22] The courts apparently now have a less deferential approach to those in authority.[23] The courts have also apparently recognised the difficulties that genuine claimants have in successfully bringing a clinical negligence claim. At the same time, there has been a raise in the number of clinical negligence claims in England and Wales over the last number of years.[24] Furthermore, with an increasing awareness of patient rights, an increasing loss of faith in the public health service following various health ‘scandals’ such as Bristol and Alder Hey, a judicial deference to the medical profession certainly has its days numbered. Also, as Woolf acknowledges, ‘our courts were aware that courts at the highest level of other Commonwealth jurisdictions, particularly Canada and Australia, were rejecting the approach of the English Courts. They were subjecting the actions of the medical profession to a closer scrutiny that the English Courts …’[25]
Other commentators have also noted the way in which lawyers approach the issue of using expert witnesses. Teff comments:
“Reassertion at the highest level of the court’s role in scrutinizing professional practice is welcome, not least because of current concerns about the dynamics of providing expert evidence for the purposes of adversarial litigation. Some law firms’ choice of experts is apt to depend too much on perceived presentational skills and acuity in advancing the client’s case, and too little on detached expertise…
… One prominent medicolegal authority has bluntly declared that ‘Bolam will only work fairly if the use of hired hands as defence medical experts is eliminated. It would then be possible to talk of a responsible body of medical opinion’.”[26]
Teff has thus outlined some of the practices that demonstrate how the Bolam principle is deferential in practice. Lawyers tend to look for an expert who will make their case stronger, and a survey of 500 expert witnesses revealed that about a quarter noted comments that in some instances, witnesses were requested to change comments that were alteration of their opinions.[27]
The problems associated with the Bolam test have not only presented themselves in clinical negligence cases. The traditional Bolam approach was also questioned under the scope of ‘informed consent’ cases, which involve a claim of negligence for failing to warn of risks inherent in treatment.
The leading case on the issue of disclosure of risks in treatment is Sidaway v Board of Governors of the Bethlem Royal Hospital.[28] Discussion of the Bolam test was present in practically all of the judgments delivered. Lord Bridge asserted that the law should reject the ‘reasonable patient’ test and follow a modified version of the Bolam test. Accordingly, disclosure of information is ‘primarily a matter of clinical judgment’, but this does not mean that the profession is entitled to set its own standard in such cases. Thus, a judge would be entitled to hold that a clinician should have disclosed a risk where there was a procedure that involved a ‘substantial risk of grave adverse consequences’, giving the example of a 10 per cent risk of stroke as substantial, but a 1 or 2 per cent risk of spinal cord damage was not substantial. Similarly, Lord Templeman also suggested that a modified Bolam approach should be taken.
Subsequent interpretation of the Sidaway case has not been straightforward. The reasoning of the judges in the case is far from consistent, and furthermore, according to Lord Browne-Wilkinson, the modified test put forward to Bolitho did not apply to such cases. The Court of Appeal in Gold v Haringey HA,[29] merely referred to the judgment of Lord Diplock and therefore applying the Bolam principle in its purest form, an approach not generally followed by the House of Lords in Sidaway. The Australian High Court on the other hand decided the issue differently in the case of Rogers v Whitaker.[30] In that case, the shortcomings of the Bolam test were identified by the High Court:
“One consequence of the application of the Bolam principle to cases involving the provision of advice or information is that, even if a patient asks a direct question about the possible risks or complications, the making of that inquiry would logically be of little or no significance; medical opinion determines whether the risk should or should not be disclosed and the express desire of a particular patient for information or advice does not alter that opinion or the legal significance of that opinion. The fact that the various majority opinions in Sidaway … for example, suggest that, over and above the opinion of a respectable body of medical practitioners, the questions of a patient should truthfully be answered (subject to the therapeutic privilege) indicates a shortcoming in the Bolam approach.”
The Australian High Court specifically chose not to follow the Bolam test in information disclosure cases, commenting:
“In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill … But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade … Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied … Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to “the paramount consideration that a person is entitled to make his own decisions about his life”.”
The comments made by Lord Woolf[31] in his paper are clearly justified when examining the decision in Rogers v Whittaker. Commonwealth decisions have been far more willing to examine and scrutinize medical evidence and it may not always be a question of what is more preferential for the judge to follow, but it is instead what the judge feels is reasonable. This does not involve the judge merely accepting that two courses of treatment may have both been reasonable in the circumstances in the opinion of medical experts. The judge’s actual role is to establish the reasonableness of each on the basis of the evidence presented to him and that does not necessarily mean that both have to be right. Mason and Laurie comment:
“[W]hile the courts are increasingly determined to see that the Bolam principle is not extended [into areas such as judging ‘best interests’], they still have an innate reluctance to abandon it in respect of medical opinion; there is a sense that Bolitho, although welcome, is being used mainly in a ‘back-up’ position. What is certain is that Bolam can no longer be regarded as impregnable.”
Thus, on the basis of the above comment, the post-Bolitho meaning of Bolam is that it is merely a back up for when the case faced by the court suits a change in approach. Furthermore, while the courts have been apparently reluctant to extending the Bolam principle into the best interests test,[32] the principle has already been incorporated into the concept of best interests. Airedale NHS Trust v Bland[33] required an analysis of what was in the best interests of a patient in a persistent vegetative state, who was being kept alive by artificial nutrition and hydration. In an analysis of whether such nutrition and hydration should be withdrawn (resulting in the death of the patient), the Law Lords turned to analyse the patient’s best interests.
The treatment was apparently not in the patient’s best interests. This was because it was regarded as futile. In Lord Goff’s words[34], ‘the patient is unconscious and there is no prospect of any improvement in his condition’. In deciding whether the treatment was futile, the doctor had to act in accordance with a responsible body of medical opinion. More precisely the doctor had to satisfy the Bolam test. It is difficult to comprehend how it is relevant in deciding what is in the best interests of a patient –conflicting views of doctors will always be Bolam reasonable as long as one other doctor supports that view.
In conclusion, the courts have established a completely different system of establishing the standard of care for medical professionals to that of other professionals. The Bolam approach has traditionally been interpreted as a principle that a doctor will not be negligent if other professional opinion holds his actions as reasonable, even if that opinion is a minority. The courts have been deferential to the profession, and the apparent move away from such approach in Bolitho is a disappointment of this deference. Lord Browne-Wilkinson’s words were read quite literally, the emphasis being placed upon the words, ‘but if in a rare case’ – the courts have only questioned ‘reasonable and responsible’ medical opinion in a very small amount of cases and it seems as though the Bolitho approach is, as Mason and Laurie commented, a mere ‘back up’ if the judge wishes to find for the claimant. Whilst the courts have slowly begun to depart from the traditional approach, more needs to be done before there is any comparison with the approach of other Commonwealth jurisdictions, such as Australia. Furthermore, the courts should be more clear in their reasoning, as it is also important to be able to ascertain objectively how cases should be decided on grounds of precedent. The majority of clinical negligence claims that are commenced, are settled by the NHS Litigation Authority before they even reach court and would it not be more economic for the NHS to be able to ascertain with greater certainty when a doctor has been negligent? Finally, the decision in Bolitho is far from a departure of judicial deference to the medical profession, it is a mere spin on the language originally used in Bolam. The courts now have ground to make in establishing a more fair, predictable and objective approach in line with other negligence actions.
Bibliography
Brazier, M. ‘Medicine, Patients and the Law’ (2003, 3rd edn) Penguin Books, London
Davies, M. ‘Textbook on Medical Law’ (2001, 2nd edn) Blackstone Press, London
Jaskson, E., ‘Medical Law – Text, Cases and Materials’ (2006) Oxford University Press, Oxford
Kennedy, I. & Grubb, A. ‘Medical Law’ (2000, 3rd edn) Butterworths, London
Mason, JK et al, ‘Law and Medical Ethics’ (2002, 6th edn) Butterworths, London
Montgomery, J. ‘Health Care Law’ (2003, 2nd edn) Oxford University Press, Oxford
National Audit Office, Handling Clinical Negligence Claims in England, 2001
Singer, P., ‘Rethinking Life and Death: The Collapse of our Traditional Ethics’ (OUP Oxford 1994)
Journal Articles
Brazier, M., Miola, J., ‘Bye-Bye Bolam: A Medical Litigation Revolution?’ (2000) 8 Med L Rev 85
Keown, J., ‘Reining In the Bolam Test’ (1998) 57 CLJ 248
Teff, H., ‘The Standard of Care in Medical Negligence – Moving on from Bolam?’ (1998) 19 Oxford Journal of Legal Studies 473-84
Woolf, Lord., ‘Are the Courts Excessively Deferential to the Medical Profession?’ (2001) 9 Medical Law Review 1-16.
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