The prospect of the English courts

This point was clarified in Hunter v Handley [1955] SLT 213 Lord President Clyde stated there was too much scope for genuine differences of opinion and that one should not be held negligent, because the conclusion differs. An example of the two schools of thought working positively for the doctors is in Pargeter v Kensington, Chelsea and Warminster HA [1979] 2 The Lancet 1030. The defendant avoided liability by showing that a respectable body of medical opinion approved his practise. The courts imposed its own views in the case of NYE Saunders and Partners v Bristow 8 April 1987 CA, but this is rare.

Lord Scarman showed this in Maynard v West Midlands RHA [1984] 1 WLR 634 "it is not enough to show that there is a body of professional opinion which considered their decision wrong, when there is another body which supports their decision in the circumstances." (Stauch p295) The courts turn to the Bolam Test first. The case of Hills v Potter [1984] 1 WLR 641 was the first real demonstration that courts were not going to let doctors or any other professionals dictate on law, LJ Hirst stated, "I do not accept the argument that by adapting the Bolam Principle, the court abdicates its power of decision to doctors" (Stauch p296)

There have been developments since Hills such as Defreitas v O'Brien [1995] 6 Med LR 128 it was held that reasonable body of opinion was not substantial as a defence. This was discussed in Crawford v Board of Governors of Charing Cross Hospital [1953] The Times 8 December it was found that there was no breach of duty, when the defendant used a procedure which had been reported to cause injury. It was said that doctors couldn't be expected to read every article produced. Lord Denning said that it would have put a terrible burden on to doctors. An example of the courts not wanting to interfere.

Lord Scarman in the case of Maynard seemed to frame the Bolam Test as a complete defence, providing a doctor could show that they did comply with a practise approved by a reasonable body they could never be found negligent. So as long as someone agreed with the practise, could that constitute a reasonable body? However this was never to be the meaning of the test. This power was deemed as unfair in Bolithio v City Hackney HA [1997] 4 ALL ER 771 LJ Mustil stated " in my judgement the court could only adapt the approach of LJ Sachs and reject medical opinion" He also stated that medical opinion should be rejected if "the court fully conscious it lacks clinical knowledge was none less clearly satisfied that the view of the professional body was Wednesbury unreasonable1" (Lewis p198). Showing that the courts willing to impose rules of its own.

The New Bolam

Hucks v Cole [1968] The Times 9 May CA seems to try and create a new Bolam. Sach seemed to show a change of view, he stated, "the fact that other practitioners would do the same is not conclusive. The court must be vigilant to determine whether the reasons given for putting the patient at risk are valid in light of any known medical advances" (Stauch p299). This case was never properly reported and not referred to in any major cases of the 1980s. M Jones stated "it is rather the case that if this case represents any real change at all, it is that the courts are being more explicit, in publicising their rare and residual power to question medical practise" (Jones p99).

Departure From Approved Practise

Where there is a single course of treatment recognised, it becomes difficult impossible to demonstrate that this treatment is illogical, should deviation from such practise be classed as negligent? In Hunter v Handley [1955] SC 200 LP Clyde set out three requirements to establish a doctors liability. 1. It must be proved that there is a usual and normal practise. 2. It must be proved that the defendant has not adopted that practise. 3. It must be established that the course adopted is one no one else would have chosen if acting with ordinary care. 

The problem is that it is not clear whether Clyde had intended the third requirement to be determined by the courts, or by doctors' evidence. The case of Clark v McLennan [1983] 1 ALL ER 416 showed this, Justice Pain held "that were there is a situation in which a general duty of care arises and there is a failure to take precaution, and that very damage occurs against which the precaution is designed to protect, then the burden lies on the defendant"(Sauchts p304)

Conclusion

The Bolam Test is established as the accepted practise for professionals, especially in the medical field. Considering the effect it has on claimants, and their right, the test does not sit comfortably with a doctor's duty. This implies that the system is self-governing, and there is scope for self-preservation with professionals supporting one another's views, this must be very disadvantaging for the claimant.

So it would appear that professionals are on a pedestal by the courts, and the odds against a claimant could be argued as a breach of human rights. "The prospect of the English courts suddenly revising the tradition of decades and actively seeking to arrogate to themselves the making of clinical judgements is remote" (Braizer p114) It is difficult in some circumstances to hold professionals liable for their carelessness. However I believe that the law is above any body or organisation and they must impose a strict rule or guidance, which would protect individuals. The fact that professionals have the standard practice rule to hide behind, I believe gives way to carelessness.