The House of Lords decision in Bolitho (Bolitho

The House of headmasters determination in Bolitho (BolithoThe House of ennobles stopping point in Bolitho (Bolitho v City and Hackney HA 1998 AC232) is a previous(a) and welcome dep artificeure from juridic disconcertence to medical checkup checkup checkup exam exam spirit simply in that respect is still too oft abidance and more has to be d sensation.Critically remonstrate on the above statement.In any scorn claim, in order to succeed the claimant must show that he was owed a employment of address by the suspect, that the duty of treat was breached, and that the breach of duty caused the damage complained of.1 Kennedy and Grubb comment that the duty of c be arises from a request for medical services by an individual and a consequent undertaking by a vivify or some early(a) health care artal to provide these services.2 Margaret brazier has observed a uncomplaining claiming against his remedy usually has little difficulty in establishing that the defendant owes him a duty of care.3The second stage of a clinical scorn accomplishment is to show that the doctor up has breached his shopworn of care. In any disregard claim, the warning of care is answer by police and is an bearing standard.4 Words such as reasonable or trustworthy are normally attri hardlyed to such a standard. Such adjectives are non normally equated with a coiffure that is common or certain. With appreciate to medical negligence claims however, the fair play has not taken such a muckle. The fount of Bolam v Friern Hospital Management Committee5 has established that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a trustworthy form of medical men adept in that particular art. The Bolam case was a decision at first instance, entirely was later(prenominal) approved by the House of churchmans in Whitehouse v Jordan.6The hooks redeem ceaselessly taken a protectionist view of the medical profes sion in clinical negligence claims. Jackson ack straight offledges that this could be due to the complexity of medical depict, 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 hold up also conver mark offd their respect. In Wilsher v Essex AHA,8 Mustill LJ commentsFor all we know, The doctors in this case far surpassed on numerous occasion the standard of reasonable care. Yet it is said that for bingle lapse they (and not just their employers) are to be held liable in damages. Nobody could pink the mother for doing her outstrip to secure her sons financial future. exclusively has not the constabulary taken a wrong turning if an action of this kind is to succeed?It is interesting to note the difference in indemnity in cases involving medical professionals. In other negligence cases, the courts entertain commented that the voice of the honor of negligence (and the law of torts in general), is to compensate injured parties for loss. The tribunal switch had no moral objections to awarding damages in cases where they puke apply the deepest pocket ruler. 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 go out award damages from the deepest pocket. Yet, there has been considerable hesitation in holding doctors preoccupied for public policy reasons, despite the accompaniment that doctors allow be also be insured. Furthermore, doctors working in the NHS will broadly not be personally held accountable for the negligence the action is brought against the confidence 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 Au thority.The Bolam ruler 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 creditworthy body of medical eyeshot level(p) though other doctors may adopt a variant 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 suss outmed to favour an address that a doctor will not be negligent if there are other reasonably held approaches that are the same as the defendant doctors approachI confine to say that a judges preference for one body of distinguished professional flavour to another(prenominal) also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions guide received the seal of sycophancy of those whose opinions, truthfully expressed, honestly held, were not preferred For in the realm of diagnosis and treatment negligence is not estab lished by preferring one ample body of professional opinion to another.The pure Bolam approach is the subject of critical 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.12Despite 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 conglomerate a pregnant woman with a septic finger whose doctor failed to prescribe her penicillin. The uncomplaining of suffered puerperal fever as a consequent and a add together of witnesses gave evidence stating that they would not have prescribed penicillin in the same situation. However, the salute of Appeal held that make up if there are relatively small stakes involved, the accompaniment that it would have been easy to avoid such take chancess so easily and inexpensively, is clearly not reasonable. Sachs LJ commentsOn such occasi ons the fact that other practitioners would have through the same thing as the defendant practitioner is a actually weighty matter to be impersonate on the scales on his behalf but it is not conclusive. Despite the fact that the endangerment could have been avoided by adopting a course that was easy, efficient and inexpensive, and which would have entailed altogether minimal chances of disadvantages to the patient, the evidence of the quadruple defence nices to the effect that they and other obligated 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 handed-down Bolam approach was departed from. Lord Browne-Wilkinson commentsIn the vast majority of cases the fact that distinguished experts in the fie ld are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of sagaciousness 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 high-minded case, it can be demonstrated that the professional opinion is not capable of withstanding limpid analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.The relevance of the Bolitho decision was ab initio regarded as a major shift from the pure Bolam approach. Following the decision, Kennedy and Grubb comment that the law has been put backside 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 tho occur in rare cases. Hucks v Cole was for sure 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 pursue 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 benefaction case falls unquestionably on the other side of the cablegram, and it is quite a impossible for a court to hold that the views sincerely held by the experts financial support 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, confused 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 take could not be logically supported. The Court of Appeal also affirm 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, so, Marriott consorts 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.19The approach taken by the courts post Bolitho seems to suggest that the courts are however prepared to examine the c redibility of witnesses and not the content of their evidence. So ample as the evidence given is truthfully held and honestly expressed therefore 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 vacillation 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 constrictive approach on the modification of the Bolam principle in its new Bolitho interpretation.21 pen 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 difficult ies 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 metamorphose magnitude aware(p)ness of patient rights, an increasing loss of faith in the public health service avocation divers(a) 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 population jurisdictions, curiously Canada and Australia, were rejecting the approach of the incline Courts. They were subjecting the actions of the medical profession to a closer scrutiny that the English Courts 25 other(a) commentators have also noted the way in which lawyers approach the event of using expert witnesses. Teff commentsReassertion at the highest level of the courts role in scrutinizing professional practice is welcome, not to the lowest degree 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 confrontational skills and acuity in advancing the clients case, and too little on detached expertise One prominent medicolegal authority has bluntly declared that Bolam will only work passably 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 exculpate 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 variation of their opinions.27The pr oblems 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 react cases, which involve a claim of negligence for failing to warn of risks immanent in treatment.The leading case on the subject of manifestation 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 circumscribed 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, g iving 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. concomitant interpretation of the Sidaway case has not been straight forward. 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 grand 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 identify by the High CourtOne consequence of the application of the Bolam principle to cases involving the provisio n of advice or information is that, even if a patient asks a direct question about the possible risks or complications, the making of that interrogation 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 supererogatory skill or competence is that of the ordina ry 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 continuously 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 Woolf31 in his paper are clearly justified when examining th e decision in Rogers v Whittaker. Commonwealth decisions have been far more ordain to examine and scrutinize medical evidence and it may not perpetually 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 accept that two courses of treatment may have both been reasonable in the circumstances in the opinion of medical experts. The judges unquestionable 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 lo nger 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 conditi on. In deciding whether the treatment was futile, the doctor had to act in accordance with a responsible body of medical opinion. More exactly 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-Wilkinsons words were read quite literally, the emphasis being loc ated 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 stonemason 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 primarily 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, 3rd edn) Penguin Books, LondonDavies, M. Textbook on medical Law (2001, 2nd edn) Blackstone Press, LondonJaskson, E., medical exam Law Text, Cases and Materials (2006) Oxford University Press, OxfordKennedy, I. Grubb, A. medical checkup Law (2000, 3rd edn) Butterworths, LondonMason, JK et al, Law and Medical Ethics (2002, sixth edn) Butterworths, LondonMontgomery, J. Health share Law (2003, 2nd edn) Oxford University Press, OxfordNational inspect Office, Handling Clinical Negligence Claims in England, 2001Singer, P., Rethinking Life and Death The separate of our Traditional Ethics (OUP Oxford 1994) ledger ArticlesBrazier, M., Miola, J., Bye-Bye Bolam A Medical Litigation Revolution? (2000) 8 Med L Rev 85Keown, J., Reining In the Bolam establish (1998) 57 CLJ 248Teff, H., The Standard of Care in Medical Negligence pathetic on from Bolam? (1998) 19 Oxford Journal of Legal Studies 473-84Woolf, Lord., Are the Courts to a fault regardful to the Medical Profession? (2001) 9 Medical Law freshen 1-16.1Footnotes1 The establishment of negligence is a common law creation see Donoghue v Stevenson 1932 totally 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 See 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 page 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 (3 rd 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., Mason 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 Le gal 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