1. Justice McNair found that the amount of information given to Mr Bolam accorded with accepted medical practice at the time [3]: This is not an example of the work produced by our Law Essay Writing Service. Akin to the court affairs in Bolam, there was a schism between the medical judgments as one body of medical opinion endorsed the defendant’s view whilst another body disapproved of the conduct. Unlike tests that give a simple insight into someone's personality, an objective personality test such as the MMPI-2 is used to determine predictions and outcomes of treatments for patients. However, interestingly in this case, Lord Scarman dissented promulgating that Bolam should not apply to issues of informed consent as the practitioner ought to owe a duty to convey any inherent or material risks posed to the patient. Alderson, P. (1993) Children’s Consent to Surgery. A dialogue is required 5. These notions underpin the clinical framework and hence each clinician should aspire to achieve these aims. the Bolam Test, derived from a case between Bolam v Friern Hospital management com-mittee (1957). As Breier-Mackie reports, ‘to claim that patients have autonomy is to argue that they have the capacity and right to decide for themselves the values and rules that will govern their existence’ [12] . Specifically the influential House of Lords decision in Bolitho [5] will be analysed to determine whether the early optimism was faithful to the verdict or merely subject to a fallacious and premature veneration. The Bolam test relates to a ruling from 1957, which involved a patient who agreed to electroconvulsive therapy. Within the area of informed consent further difficulties are added when either the patient is a minor or the patient has a mental condition which prevents them from being able to make rational choices for themselves. The long goodbye to Bolam: Consent in clinical negligence claims. Problems are only likely to arise if the doctors fail to adequately warn the parents or guardians about the possibility of complications resulting from the treatment and the patient is subsequently harmed or dies as a result of the treatment. Mr Bolam suffered severe fractures during electroconvulsive therapy for depression, a risk known to his doctor, but not communicated to Mr Bolam. This same view was used in helping the court to decide on whether it was lawful to discontinue feeding a patient who was in a persistent vegetative state. Therefore, this asymmetry necessitates for frontier demarcation which is mooted in law and ethics. Brazier and Miola assert this view, professing that just because a ‘judge fancies ‘playing’ at being architect, solicitor or doctor’ does not connote that the skilled individual’s actions are scrutinised and consequently held as incompetent [37] . Clearly, this test has an element of A patient has incapacity when, if at the material time, she: An obligation to give a patient all the information available to the doctor would often be inconsistent with the doctor’s contractual obligation to have regard to the patient’s best interests. Hence, it was a matter for the courts to adjudicate whether the failure to provide the necessary drugs amounted to medical bankruptcy and a triumphant claim of negligence. In the following year, the highest judicature of English law in the case of Sidaway [45] , was presented with yet another opportunity to discuss the applicability of Bolam. This realistic and impartial argument recognises that ultimately, both the doctor and the patient seek the customary target of rejuvenating the individual. London: Royal College of Surgeons, 1997. Subsequent tests developed in Anns ... the court may deny Caparo of any significance and move towards the Nicholas H approach of weighing up the pros and cons in granting the claim. Pros And Cons Of Medical Negligence 1084 Words | 5 Pages. In the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital[2] Lord Diplock , Lord Templeman and Lord Scarman all affirmed the application of the Bolam principle. Lloyd also noticed that even in some instances when the patient did fully understand the risk posed they were unable to retain the information long enough in order to be able to consider the alternatives that had been offered to them by the doctors. This has been particularly the case in relation to the sterilisation of those who are mentally handicapped. Free resources to assist you with your legal studies! However, upon appeal the House retired its option to scrutinise the evidence and simply applied the dictum of Bolam, thus exonerating the defendants. Reference this. The court stated that this could have been avoided if the doctors had expressed the risk factor in terms of the percentage of cases were complications might occur. Several researchers have conducted studies to determine the comprehension of patients in relation to information they have been given about their conditions. Women did not have genuine consent due to his lack of qualifications. The Bolam test J R Soc Med 1990;83:439–43, Who Decides; Making Decisions on Behalf of Mentally Handicapped Adults (LCD, 1997), [1] Bolam v Frierm Barnet HMC 1957 1 WRL 582, [2] Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985. Promoting the best interests of a patient is a notion held most dearly by the medical profession, yet some may argue that this acclamation can in some situations undermine the wishes of a patient. On the other hand, he argues, as long as negligence is ‘concerned with what is done, with practice, it may be said to be a sociological concept’ [42] . It could be argued that this part of the test does not really afford a distinctive bias towards the medical profession than it would to any other line of work. Rather, he places emphasis on the growing realisation in the medical kingdom that collective partnership in treatment can furnish ‘therapeutic benefits, whilst affording due respect for the patient’s moral agency’ [24] . “Mental Capacity, Legal Competence and Consent.” Journal of the Royal Society of Medicine, 920: 415-420. Hence, a perusal of the philosophy of paternalism adjacent to the concept of patient autonomy is pertinent here in establishing a far-reaching framework within medical negligence problems. The main measurement used to determine negligence is a type of peer test. Scrutinising the anti-paternalistic argument, he assesses Ronald Dworkin’s claim that people have ‘critical interests’ which occasionally can be mistaken. Reforms Pros Medical Practitioners Bolam test restored as long as the held view from LAW FACULT LW224 at MARA University of Technology Bolam. A landmark case in English medical law and, it is submitted, one of the most radically controversial decisions in history. In s1(2) of the 2005 Act the legislation recognises that a person must be presumed to have capacity unless it is established that he lacks capacity[17]. It is thus unsurprising that judicial deference exists as the repercussions of legal verdicts can have a debilitating effect on the medical terrain. 9 That is, the Bolam test: Bolam v Friern Hospital Management. London: Butterworths, 2000: 704–13, Kessel, A. S. (1994) On failing to understand informed consent. It is conceivable that in the venerated sphere of medicine the spirit of camaraderie may unfold and thus doctors may be willing to vouch for their fellow professionals who may be seen as committing a mistake in a distressing environment. The Bolam test. In Montgomery however, the UK Supreme Court reversed the judgments at first instance and on appeal, making clear that in the UK, the doctor’s duty to advise her patient of the risks of proposed treatment falls outside the scope of the Bolam test. As Wilkinson asserts, people can be ill equipped to distinguish what is best for them. 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