The House of Lords decision in Bolitho (Bolitho

The mob of maestros decision in Bolitho (BolithoThe House of lords decision in Bolitho (Bolitho v City and Hackney HA 1998 AC232) is a previous(a) and welcome departure from judicial deference to health check whimsey but there is still too much deference and more has to be d unmatched.critically tittle-tattle on the above statement.In each neglectfulness claim, in order to succeed the claimant must show that he was owed a duty of sustenance by the defendant, that the duty of c be was br separatelyed, 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 health check examination services by an individualist and a consequent undertaking by a pay off or opposite health care pro to provide these services.2 Margaret Brazier has observed a patient claiming against his doctor normally has little difficulty in establishing that the defendant owes him a duty of care.3The second stage of a clini cal disregard exertion 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 verifiable standard.4 Words such(prenominal) as reasonable or responsible are normally attributed to such a standard. Such adjectives are non normally equated with a practice that is common or accepted. With obligingness to medical checkup negligence claims however, the law has non taken such a view. The shimmy of Bolam v Friern Hospital Management Committee5 has established that a doctor is non 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.6The courts confine continuously taken a protectionist view of the medical profession in clinical negligence claims. Jackson acknowledges that this could be re payable to the complexity of medical evidence, but it could in like manner be explained by a sense of professional solidarity.7 The medical profession has been highly regarded in society, and the courts have also show their respect. In Wilsher v Essex AHA,8 Mustill LJ commentsFor 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 snuff it 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 sons financial future. simply 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 d amages 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 scholar depend one wood would be held to the alike standard of a competent driver (competent would be observeed 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 opening 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 someoneally 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 failure 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 pra ctice accepted at the time as proper by a responsible body of medical opinion scour 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 earnmed to favour an onward motion that a doctor will not be negligent if there are other reasonably held come out shotes that are the same as the defendant doctors approachI have to say that a judges 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 shut 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 honorable body of professional opinion to another.The pure Bolam approach is the subject of scathing academic cr iticism. Kennedy and Grubb comment It may seem curious that the law would defer to the medical profession in setting the electrical capacity of the duty in negligence.12Despite the deference to the medical profession in the courts, there have been slightly 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 commentsOn 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 n ot 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 but 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 addicted by the four experts do not to my mind stand up to abstract 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 commentsIn 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 idealistic case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is empower 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 exalted cases. Hucks v Cole was surely 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 defenda nt did not follow a procedure that would have detected that a babys umbilical cord was wrapped around his neck during birth and the medical opinion differed over the reasonableness of such. Brooke LJ comments thatHucks 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 doctors 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 on 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 employ in other, non-medical standard of care decisions.19The 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.21Writing extra judicially, Lord Woolf comments that there have been a number of reasons for a shift away(predicate) from the traditional approach in Bolam.22 The courts plainly now have a less deferential approach to those in authority.23 The courts have also apparently recognise 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. to a fault, 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 opposite commentators have also noted the way in which lawyers approach the issue of using expert witnesses. Teff commentsReassertion at the highest level of the courts role in scrutinizing professional practice is welcome, not least because of current concerns close to the dynamics of providing expert evidence for the purposes of adversarial litigation. Some law firms choice of experts is gifted to depend too much on perceive d presentational skills and acuity in advancing the clients case, and too little on uninvolved 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.26Teff 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.27The 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 t reatment.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 a lot 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 randomness 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. sequent interpretation of the Sidaway case has not been straightforw ard. 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 CourtOne 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, commentingIn 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 heartlan d of the skilled medical practitioner, the Bolam principle has not forever and a day been utilise 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 Woolf31 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 merel y accepting that two courses of treatment may have both been reasonable in the circumstances in the opinion of medical experts. The judges 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 commentWhile 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 Bland33 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 patients best interests.The treatment was apparently not in the patients best interests. This was because it was regarded as futile. In Lord Goffs words34, 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(prenominal) 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 remains 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-Wilkinsons 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 court s 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. BibliographyBrazier, M. Medicine, Patients and the Law (2003, 3r d edn) Penguin Books, LondonDavies, M. Textbook on medical checkup Law (2001, 2nd edn) Blackstone Press, LondonJaskson, E., checkup Law Text, Cases and Materials (2006) Oxford University Press, OxfordKennedy, I. Grubb, A. medical exam Law (2000, 3rd edn) Butterworths, LondonMason, JK et al, Law and Medical Ethics (2002, 6th edn) Butterworths, LondonMontgomery, J. Health Care Law (2003, 2nd edn) Oxford University Press, Oxford matter Audit Office, Handling Clinical Negligence Claims in England, 2001Singer, P., Rethinking Life and Death The Collapse of our Traditional Ethics (OUP Oxford 1994)Journal ArticlesBrazier, M., Miola, J., Bye-Bye Bolam A Medical Litigation Revolution? (2000) 8 Med L Rev 85Keown, J., Reining In the Bolam Test (1998) 57 CLJ 248Teff, H., The Standard of Care in Medical Negligence Moving on from Bolam? (1998) 19 Oxford Journal of Legal Studies 473-84Woolf, Lord., Are the Courts Excessively Deferential to the Medical Profession? (2001) 9 Medical Law Review 1 -16.1Footnotes1 The establishment of negligence is a common law creation see Donoghue v Stevenson 1932 All ER Rep 12 Kennedy and Grubb, Medical Law (3rd edn, 2000) at pp 2783 Medicine, Patients and the Law, (3rd Edn, 2003) at pp 1414 debate for example, Nettleship v. Weston 1971 2 QB 69151957 2 All ER 1186 (1981) unreported, and Maynard v. West Midlands Regional Health Authority 1985 1 All ER 6357 Jackson, E., Medical Law Text, Cases and Materials, (2006, OUP), Oxford at paginate 1238 1987 1 QB 7309 above, n 4.10 Lord Scarman in Sidaway v Board of Governors of the Bethlem Royal Hospital 1985 1 All ER 64311 1985 1 All ER 63512 Kennedy and Grubb, Medical Law (3rd edn, 2000) at pp 41813 1993 4 Med LR 393. Despite the fact that the case was reported in 1994, the decision was actually made in 196014 1997 4 All ER 77115 Kennedy and Grubb, Medical Law (3rd edn, 2000) at pp 44516 1998 Lloyds Rep Med 223 CA17 Unreported, 30 May 200218 1999 Lloyds Rep Med 2319 Mason, J.K., Laurie, G.T., M ason McCall Smiths Law and Medical Ethics, (2006, 7th Edn) Oxford University Press, Oxford.20 See for example, De Freitas v OBrien 1995 6 Med LR 10821 see for example, Briody v St Helens Knowsley AHA 1999 Lloyds Rep. Med. 185, Hallatt v NW Anglia HA 1998 Lloyds Rep. Med. 197, and Rhodes v W Surrey NE Hampshire HA 1998 Lloyds Rep. Med.. 25622 Are the Courts Excessively Deferential to the Medical Profession? (2001) 9 Medical Law Review 1-16.23 Ibid24 Ibid. Also see, National Audit Office, Handling Clinical Negligence Claims in England, 200125 Lord Woolf, above n 2226 The Standard of Care in Medical Negligence Moving on from Bolam? (1998) 19 Oxford Journal of Legal Studies 473-8427 Ibid28 1985 1 All ER 64329 1988 QB 48130 (1992) 67 ALJR 4731 above, n 2232 See for example Re S (adult patient sterilisation) 2001 Fam 15, 2000 3 WLR 1288.33 1993 1 All ER 82134 1993 AC 789 at 869