Doctoral Researcher Kirstie Shearman, reviews the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.
Background
For a patient to bring a successful medical negligence claim, they must prove three elements: that the medical professional owed them a duty of care; that the duty of care was breached by the medical professional failing to meet the requisite standard; and that the patient’s injury was caused by this breach. The case of Bolam concerned what the standard of duty of care is for doctors, and who determines it.
Facts
John Bolam suffered from depression, and in 1954 agreed to electro-convulsive therapy (ECT) at a mental health institution. The defendant in the case was Friern Hospital Management Committee, who had employed Mr Bolam’s treating doctor, Dr Allfrey.
During Mr Bolam’s ECT treatment he suffered injuries such as dislocation in both his hip joints and fractures of the pelvis. This was due to his body flailing throughout the ECT as he had not been given muscle relaxant drugs, nor had his body been restrained. The doctor, while aware that these injuries were a risk of the ECT, had not communicated this to Mr Bolam.
Mr Bolam therefore alleged that the doctor was negligent for failing to provide relaxants and restraints, and for the doctor’s failure to warn him of the risks involved.
Issues
The issue for McNair J to decide in the Bolam case was what the standard of care for Dr Allfrey’s treatment should have been, and whether his conduct met this standard. McNair J explained that the usual test for the required standard of care in negligence cases was “some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do.” However, in the case of someone with a special skill – such as medicine – the test was surely different.
Decision
At court, a range of expert medical witnesses were called upon. Some doctors stated that it was necessary to restrain a patient given ECT in order to prevent such injuries. Others, however, indicated that many doctors did not use relaxant drugs and that the use of restraints could in fact increase the likelihood of fractures occurring. Further, the court heard evidence from medical experts explaining that it was common practice of the profession at that time not to advise patients about the risks of ECT given that the risks of dislocation and fractures were so small.
In judgment, McNair J agreed with the defendant’s position that “in the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time.” He set out what has come to be known as the Bolam test: 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.” Given the facts of this case, McNair J found that there had been no breach of duty of care by Mr Bolam’s doctor, in line with the body of experts which supported administering ECT treatment without relaxants or restraints.
Regarding the failure to advise Mr Bolam on the risks of the ECT, it was held that, in order for this to be considered negligent, Mr Bolam must be able to show that had he would not have consented to the treatment had he been informed of those risks. McNair J found that this was not the case and Mr Bolam’s claim was therefore dismissed.
Legal developments
The Bolam principles have been developed further in a number of landmark cases, such as Bolitho v City and Hackney Health Authority [1998] AC 232 on a judge’s role in assessing whether a body of medical opinion is reasonable, and Montgomery v Lanarkshire Health Board [2015] UKSC 11 on the issue of information which must be disclosed to a patient before they consent to surgery.
