The Bolam Test: A Landmark in Medical Law

What is Negligence?

In law, negligence refers to a breach of a legal duty to exercise reasonable care, resulting in harm or damage to another person. It arises when someone fails to act as a reasonably prudent person would in similar circumstances, leading to injury, loss, or damage. See: Donoghue v. Stevenson

What is Medical Negligence?

Medical negligence can be defined as the failure of a doctor or hospital to provide medical treatment using the appropriate knowledge and skill expected of them, or to avoid causing harm to the patient through negligence, carelessness, or recklessness. This includes not conducting necessary investigations, not seeking reports, or failing to obtain informed consent before major treatments or surgical procedures, except in emergencies. Such failure constitutes a tortious liability, meaning it is a civil wrong for which the patient may seek judicial remedy in the form of damages.

Medical malpractice is the failure or deviation from a medical professional's duty of care – a failure to exercise an accepted standard of care in medical professional skills or knowledge, resulting in injury, damage or loss.

Medical negligence continues to increase in relevance because of the intrusive method of modern medicine causing increased chances of injury, increased expectations of cure and intolerance of error. The 1957 case of Bolam v Friern Hospital Management became a cornerstone of medical negligence law, introducing the famous “Bolam Test” for assessing professional liability in healthcare.

The plaintiff, John Hector Bolam, suffered severe injuries – fractures of the pelvis and hip dislocations – during electro-convulsive therapy (ECT) for depression at Friern Hospital in 1954. Bolam alleged negligence on three grounds: failure to warn him of risks, non-use of relaxant drugs, and inadequate manual restraint during the procedure.

The hospital defended its practices, citing support from a responsible body of medical opinion. Mr. Justice McNair instructed the jury that negligence must be judged against the standard of a competent medical practitioner, not the ordinary person. He held that a doctor is not negligent if their actions align with a practice accepted by a responsible body of medical peers, even if others disagree.

The jury ultimately found no negligence, as the hospital’s practices were consistent with recognized medical standards of the time. This ruling established the “Bolam Test”, which continues to guide medical negligence claims, balancing patient safety with medical innovation and professional discretion.

The Bolam Test established that a medical practitioner is not negligent if they act in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that particular field, even if others disagree. This emphasises that adherence to a responsible professional standard helps protect against negligence claims.

The case also defined that breach of duty in medical negligence is assessed based on whether the doctor acted as a responsible professional, not based on hindsight or lay opinion.

Impact of Bolam v Friern Hospital Management Committee.

The impact of Bolam v Friern Hospital Management Committee was that it established the standard of care for medical professionals by holding that a doctor is not negligent if they act in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in the relevant area. This gave doctors and hospitals legal protection when their actions conformed to accepted medical opinion, even if others disagreed. It applied to both treatment decisions and the disclosure of risks to patients, effectively deferring to medical expertise and limiting patient input into decisions.

Bolam promoted certainty and deference towards medical professionals by allowing any responsible medical opinion to justify conduct, making it difficult for patients to prove negligence. The ruling also placed ethical and clinical judgments largely in the hands of doctors, a process described as "Bolamisation," where legal responsibility for medical ethics was transferred to medical opinion.

However, Bolam's approach to risk disclosure was later challenged and limited by the 2015 UK Supreme Court decision in Montgomery v Lanarkshire Health Board, which overturned Bolam in relation to negligent non-disclosure of risks. Montgomery emphasized a patient-centered approach requiring doctors to disclose material risks and reasonable treatment alternatives, thus increasing patient autonomy over medical decisions. Despite this, Bolam remains relevant in other aspects of clinical advice and treatment standards.

In summary, Bolam's key impact was:

• Setting medical negligence depends on adherence to a responsible practice accepted by a competent body of medical opinion.

• Applying this standard to both treatment and risk disclosure in medical care.

• Establishing judicial deference to medical expertise effectively limits patient-centred disclosure.

•  Influencing the legal and ethical landscape of medical practice for decades.

• Its influence declined with Montgomery, which introduced a more patient-focused approach to risk disclosure, though Bolam still influences clinical negligence law in other areas.

This legacy reflects the balance and tension between clinical expertise and patient autonomy in medical law.

Conclusion

In conclusion, the Bolam Case remains a landmark in the medical negligence law, shaping how courts evaluate professional liability in health care. By introducing the Bolam test, the ruling struck a crucial balance between protecting patients from negligence and preserving the freedom of medical practitioners to exercise professional judgment without fear of unfair liability. Over time, this principle has become the foundation for assessing medical negligence, ensuring that innovation in medicine can continue while safeguarding patients’ rights.

References:

1.  Donoghue v Stevenson [1932] A.C. 562, [1932] UKHL 100, 1932 S.C. (H.L.) 31, 1932 S.L.T. 317, [1932] W.N. 139.

2.      Pandit MS, Pandit S. Medical negligence: Coverage of the profession, duties, ethics, case law, and enlightened defense - A legal perspective. Indian J Urol. 2009 Jul;25(3):372-8. doi: 10.4103/0970-1591.56206. PMID: 19881134; PMCID: PMC2779963.

3.  Cave, E., & Milo, C. (2020). Informing patients: The Bolam legacy. Medical Law International. https://doi.org/10.1177/0968533220954228

4.  Pandit, M. S., & Pandit, S. (2009). Medical negligence: Coverage of the profession, duties, ethics, case law, and enlightened defense - A legal perspective. Indian Journal of Urology : IJU : Journal of the Urological Society of India, 25(3), 372. https://doi.org/10.4103/0970-1591.56206

This article is authored by Olayinka Daniel, Law Student from Nigeria and Trainee of Lets Learn Law Legal Research Training Programme. The views and opinions expressed in this piece are solely those of the author.