Date authored: 9 th June, 2014
The test which has become enshrined in law as the benchmark by which medical negligence is assessed follows the 1957 ruling in the case of Bolam v Friern Hospital Management 1. Referred to since simply as the Bolam test it determined that a member of the medical profession will not be guilty of negligence if he or she exercised reasonable care in accordance with a practice accepted as proper by a responsible body of medical opinion. Therefore in order to satisfactorily defeat a claim of clinical negligence under Bolam a healthcare professional is required to do nothing more than adduce evidence from the respected peers from his or her speciality who agree with the standard of practice which is the subject of the action. This means that a defendant doctor will not be deemed to have been at fault providing his or her course of action is one that is professionally backed by colleagues despite the fact that other members of the medical may take an opposing view. This essay will examine the effect of Bolam and address the question of whether its precedent represents a relic from a bygone era which no longer has a place in a modern legal system or whether it adequately serves society by striking a necessary balance between the medical profession and the patients to whose care they are entrusted. One of the main drawbacks of the Bolam test is that it gives legal sanction to a self-regulatory system that operates for the benefit of clinicians in that it is the medical profession themselves and not the courts that decide the yardstick by which reasonable practice is measured. In a departure from its usual role as arbiters of what proper standards of care should be the courts are consequently relegated to a passive, acquiescent role compliantly rubber stamping medically determined definitions of reasonable clinical practice. Bolam also provides a cloak of protection around medical practitioners in that it places an often insurmountable challenge on claimants to show that no responsible body of professional opinion exists that would advocate the course of conduct under question. Although doctors may take the view that the course of action being considered may not have been one that they would themselves have adopted they may feel reluctant to go further and go on record to officially opine that the conduct of a colleague was actually below the levels that should be expected. This obstacle to proving liability inevitably acts to discourage claimants from pursuing cases and renders it highly problematic for legal practitioners to advise on the likely success of the claims in those that do. When examining the power and control Bolam affords the medical fraternity it perhaps comes as no surprise that its ruling came only nine years after the birth of the National Health Service when the appointed omnipotence and lofty pedestal upon which doctors were placed by a grateful public was at its highest and was reflected by judicial attitudes that viewed the risk of medical negligence as“a dagger at the doctor’s back” 2.
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