English reasonable Law

In Bolam the claimant maintained that the defendant was negligent in administering electro-convulsive therapy, that the defendant should have warned him of the risks involved and that claimant should have been restrained manually. The claimant's action failed because the defendant proved that he acted according to current medical practice. The Bolam standard is an objective test whereby the defendant must show he acted in accordance with a reasonable and responsible group of similarly qualified medical practitioners in the same circumstances (19).

The test compares like with like, so a neurosurgeon will be compared to other neurosurgeons, and a GP with other GPs (20). The courts cannot decide whether the medical practitioner is negligent without first hearing expert evidence of accepted medical practice. The accepted medical practice must be current (21) and it is irrelevant if there is more than one body of opinion on the particular issue, as there is always more than one medical practice for the same set of circumstances, it is enough that the defendant can show he acted in accordance with one responsible group of similarly qualified medical practitioners.

The amount of medical practitioners following a particular practice may or may not be a factor depending on which case is to be followed. In De Frietas v O'Brien & Connolly the claimant contended that the practice must be followed by a "substantial body" of medical practitioners but the Court of Appeal disagreed stating negligence cannot be determined by counting heads. However in Walsh v Gwynedd Health Authority it was held that one doctor could not constitute a "body" of medical opinion (22).

The Bolam standard has been strongly criticised for enabling the medical profession to dictate to the courts the appropriate standard of care, and has come under particularly heavy criticism in the area of disclosure of information or risks to the patient. The underlying principle of the test is that it is not for the courts to discuss correct medical practice due to their lack of expertise in this area. In other professions, Bolam applies for the same reason, but with a fundamental difference, the scrutiny of expert evidence, to ensure the "responsible professional opinion" is indeed reasonable and responsible (23)

The test in Bolam was modified by Bolitho v City and Hackney Health Authority (24) by stating that good medical practice does not have to be accepted without question. The expert evidence must have a logical basis and the experts should have weighed up risks and advantages associated with the particular procedure and reached "a defensible conclusion" (25). Bolitho limits Bolam in making expert evidence in medical negligence cases not conclusive of the case.

Bolitho has been held to apply to cases concerning informed consent (26) and has set the mark for judges to scrutinise medical evidence, in the same way they have scrutinised other professional expert evidence, such as architects or accountants. However Lord Browne-Wilkinson in Bolitho talks about medical opinion, held by competent experts, being challenged or held unreasonable only in "rare cases". Lord Brown Wilkinson said "I am not here considering questions of disclosure of risk", which should probably be taken to mean that restricting Bolam in this sense has already been achieved in disclosure of information cases (27).

Other jurisdictions have rejected the standard set in Bolam regarding disclosure of risks. The Canadian Supreme Court rejected the "professional medical standard" in determining how much the doctor should disclose (28) and recognised a distinction between those matters requiring technical skill and thus falling within the exclusive professional competence of doctors, and conduct not requiring medical expertise, and therefore information which a layman is in a position to evaluate.

The Australian courts followed suit and have also abandoned Bolam in this area and held that the patient should be told everything in order to make an informed choice about his treatment. In Rogers v Whitaker (29) the Australian High Court said that the doctor's duty was not decided "solely or even primarily by reference to the practice followed by, or supported by a responsible body of opinion in the relevant profession" (30). It was also held that, "a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment".

A material risk being if, in the circumstances, a reasonable person in the patient's position having been warned of that risk, would be likely to attach significance to it, or if the medical practitioner is or should be reasonably aware that the patient would be likely to attach significance to it. Unfortunately the English courts do not have such a pro-patient stance as was taken in Rogers v Whitaker, and prior to Chester v Afshar the doctrine of informed consent had no place in English Law (31).

Sidaway v Board of Governors of the Bethlehem Royal and the Maudsley Hospital (20) rejected the informed consent approach preferring to follow Bolam and let the practitioner decide how much the patient needs to know, as long as he disclosed in accordance with a responsible body of medical opinion (32). However Lord Bridge did state that there may be circumstances where disclosure of a particular risk was "so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it" (33).

Although Lord Scarman found against Sidaway, he was the only judge out of five to reject current medical practice as test of what the patient needs to be told, but he also upheld therapeutic privilege. Therapeutic privilege will mean the doctor will be justified in withholding information if could be shown on a reasonable medical assessment of the patient that disclosure would have posed a serious threat of psychiatric harm to the patient (34). In English law the requirement was that only the "broad terms" of the treatment should be volunteered to the patient as laid down in Chatterton v Gerson (35).

This means information about the broad risks and benefits of the treatment from the medical practitioner's point of view, and not the patient's (following what similar practitioners would do in similar circumstances, as in Bolam). Whereas American and Canadian law in this area is based on the patient giving an "informed consent" (36) and this requires the practitioner to tell the patient what the patient would want to know and not what the practitioner thinks the patient ought to be told. However English law may be moving in the direction of "informed consent".

The Surgeon's Duty of Care (37) suggested that, in the area of surgery at least, informed consent may be required, "…. information should be provided in the detail required by a reasonable person in the circumstances of the patient to make a relevant and informed judgment… " Indications can be seen in the judgements of cases like Chester v Afshar of a move toward informed consent. However whether informed consent becomes the new test instead of good medical practice as laid down in Bolam (as modified) remains to be seen.

In Chester v Afshar it was established that the defendant (in accordance with good medical practice) should have warned the claimant of the risks involved and the possible consequences of surgery (paralysis). A finding of negligence of the defendant's failure to advise the claimant adequately was made under the principle in Bolam. Therefore I believe this recognises the Bolam test as still being relevant today in determining the disclosure of risks pursuant to treatment. Albeit in its modified form, whereby the practice must be logical (24) and that any serious or significant risks would need to be disclosed (20).

The test of good professional practice now gives greater respect to patient autonomy. For consent to be valid it must be freely given (not obtained by fraud or duress). Sufficient information must be given as to the nature of the procedure, and the information given must be relevant to the patient's decision making process (this must be recognised by responsible bodies of similarly qualified practitioners in accordance with Bolam). Information sought by express questioning by the patient must be answered in a full and truthful manner (even if no other practitioner would have done so).

This represents a departure from Bolam. In Chester the fact that the claimant asked so many questions regarding the risks involved helped to establish a finding of negligence (38). The medical practitioner must communicate the risks "so obviously necessary to an informed choice… " (20), regardless of responsible medical opinion. The implementation of guidelines (39) may mean there is less scope for a Bolam style defence (the defendant cannot argue he adopted an accepted medical practice when it is contrary to national standards).

Although guidelines do not have the same force as legal rules they may be perceived as having a legal value when used as evidence of good medical practice (40). In relation to disclosure of risk cases The General Medical council now directs doctors to "take appropriate steps to find out what patients want to know and ought to know about their condition and its treatment" and since Chester, the NHS Litigation Authority has issued guidance on the revised approach to take regarding risk disclosure and informed consent.

It recommends that "careful and comprehensible warnings about all significant possible adverse outcomes must be given" (41). Judges evaluating information disclosure cases will be encouraged to take a more pro-patient stance not just by the higher courts in setting precedents in cases such as Bolitho and Chester, but by the medical profession itself through implementation of guidelines. Blind acceptance of assertions of what constitutes good medical practice following Bolam will no longer be possible.

It should be noted that possible arguments could also arise under Article 8 of the European Convention on Human Rights, alleging that a failure to provide essential information regarding treatment, breached his or her right to respect of private life. Bibliography (1) Chester v Afshar [2004] UK HL 41 (2) Chapman v Mid-Essex Hospital Services [2001] All ER (D) 239. The claimant alleged that the medical staff had assured her she would not suffer a DVT and they had not given her adequate warning of her risk to DVT and if this had been given she would not have had the operation at all.

The claim failed on the basis no such assurance had been given. (3) Smith v Barking, Havering and Brentwood HA [1994] 5 Med LR 285 (4) Hills v Potter [1984] 1 WLR 582, Smith v Barking, Havering Brentwood HA [1994] 5 Med LR 285. (5) If the objective approach was relied upon (what would the reasonable person have done? ) then this would not take into account the claimants own idiosyncrasies, for example a fear of surgery (as in Chester v Afshar).