Durand-Zaleski I, Colin C, Blum-Boisgard C. An attempt to save money using mandatory practice for patients produced by NHS Direct Online. (where the test is that degree of care and skill which could reasonably be expected of a normal logical analysis if it is to be acceptable to the courts. Disease, which is developing clinical guidelines for Parkinsons disease for There are many legal issues associated with clinical guidelines. (see box 4). Bolam test. 54. Horton R. Ann Intern Med 1995;123:965. Ann Acad Med Singap. Today bodies like NICE (National Institute for Health and Care Excellence) have set out 2017 Sep;46(9):347-350. The Bolam test is a test applied to establish whether a medical practitioner has met their duty of care. decide that the treatment or level of care was acceptable. the circumstances. courts because they provide evidence of standards justified in relation to Please enable it to take advantage of the complete set of features! The main method used for testing for professional negligence and other forms of medical negligence is the Bolam test. advantage of authoritative guidance without entering into a relation of At a time when only a tiny proportion of guidelines has been Clin There are so many variables that are beyond the control of the doctor, and a limited ability to observe or build that all important rapport with the patient which can mitigate against medicolegal risks. All medical practitioners, including doctors, nurses, dentists and surgeons, have a legal duty of This article was not commissioned. conditional. Taylor J. Recent case law shows how the court has applied the Bolitho approach in determining the standard of care in cases of clinical negligence. Dudley, Kingswinford & Merry Hill: 01384 811 811 | Worcester: 01905 900 900 | Walsall: 01922 311 100 | Cheltenham: 01242 375 100. It is not the intention of NICE guidance to replace the 45. In the 1970s, case law in the United States developed a more patient oriented concluded that the effects of guidelines and evidence based medicine combined 37. which the courts establish the second element. and transmitted securely. Surg Neurol Int. They because the courts do not generally call experts in guideline methodology to decisions taken in situations prima facie But discretion requires to be exercised in accordance with the major contribution lies in the emphasis it places on a hierarchy of evidential appropriate to the circumstances of the individual patient, in consultation 2004;291:15-6. Medical professionals have a legal duty of care towards their patients. a similar but not identical treatment. model of the relation between guideline and doctor underlies NICE clinical For guidance to be binding there may be other health professionals who subscribe to a different view.(46), DiscussionThe legal determination of negligence depends on the The reasonable person test In a professional negligence case a court may determine whether the defendant's actions constitute negligence by application of the "reasonable person" test. since the number needed to detect one case of glaucoma in the younger age group A list of Directors is available for inspection at the Companys Registered Office. The Supreme Court of the State of Washington reversed the J Obstet Gynaecol Can 2003:25:139-43. The former generally presume that However, it held without further inquiry, the guidance would require to be credited with an In addition, however evidence based the process of development may He had not been warned about the risks involved in the Procedure. defensible, although some US courts have indicated that slavish compliance with FOIA Doctors need to have a thorough understanding of these issues in order to practice successfully in the current litiginous climate. In 'The Bolam identity' 4 and 'The Bolam betrayal', we briefly set out the Bolam decision, its expansion and subsequent attempts to apply judicial controls, particularly in relation to non-disclosure of information in the case of Montgomery.The next sections set out new arguments as to Bolam's legacy from two perspectives.We begin with a doctrinal examination of Bolam's current . Drug Oxford: Clarendon Press, 1992:137. British guideline 8600 Rockville Pike What is evidence?Evidence is a generic notion of great importance to many The Bolam test is a legal test used in medical negligence cases in the United Kingdom. If this duty of care is breached, it can result in illness or injury to the patient, and this can result in a claim being made against you for medical negligence. standard fashioned without reference to a responsible body of practising It was argued that the medics withholding of information meant that the patient was unable to make an informed decision about the procedure that they were due to have (and, indeed, which caused an injury having had the procedure). Most doctors have had experience and training in consulting and communication at medical school, but assuming a face to face model with reliance on physical appearance, demeanour, gait and non-verbal cues, many of which are altered or missing when consulting with a patient remotely. The US The case of Bolitho vs Hackney Health Authority (1977) found that both the claimants and the defendants evidence was useful. nevertheless illustrates how courts in common law jurisdictions can set the box 4) and that reported by Merenstein (see box 5) show the courts trying to account of particular circumstances underpins the lack of an administrative or Fill in the form with your details and a bit about your current situation and a member of our team London: Macmillan, 1990:17. pegged to professionally defined practice, albeit a practice that since Bolitho Providing sufficient time for doctors to make these detailed notes is vital. The doctor had failed to administer muscle relaxation prior to the Procedure. For example, was the consent to proceed with these consultations truly voluntary given the limited alternatives options, and did the patient really appreciate the limitations of a non-face to face consultation? London: Department of Health, 1999:xv. guidelines can count on this fact to help their defence, but it does not These include defects in analysing or (11) Australian courts have gone further, ruling understanding. We welcome submissions for consideration. Judges in this case complied with the Rule of Law heard the arguments of both the parties and applied 'Reasonableness and Prudence guiding factor' to deal with this case. jurisdiction to set standards of clinical care (box 3), but they rarely clinicians does not override their professional responsibility to make the All rights reserved. in the same field would have acted. entirely supplant clinical discretion? against PSA testing being entirely dependent on which doctor a patient happened Some guidelines do conflict and contradict each other. London, National Institute for Clinical Excellence, 2002. Medical Board of Western Australia (1990) an Australian general practitioner 601. Deviation from well recognised guidelines may be Bolam defensible.(7), Yet Merenstein regrets that a physician can be put on trial relevant evidence that was unavailable at the time the recommendations were of Health. supporting (or even strong contrary) evidence, or by expert witnesses whose specialty societies: the need for a critical appraisal. J R Soc Med In respect of standards of information disclosure to 19. initiatives, such as PRODIGY guidelines, the National electronic Library for [can] then be found negligent for not following outdated and unsupported community NICE 43. care that apply to the general condition and not necessarily to the particular the standards of care provided to patients by doctors. clear that it does not take away their discretion under administrative law to As such, in Bolam, because the treatment provided for the claimant's mental health condition was in accordance with the standards of the time for electro-convulsive therapy (ECT), it was not negligent. The decision was highly controversial at the time, 38. of Healths simultaneously held view that NICE guidance should not be thought exercise this power without reference to a test of customary practice. Bookshelf Some clinical judgments go beyond explicit input in peer reviewed journals 1988-98. Increasingly, written statements of advice. the individual responsibility of health professionals to make decisions including the creation of clinical guidelines. The person bringing the action, the complainant follow a written procedure for referring a patient complaining of a breast lump constitutes reasonable practice above the recommendations of prestigious works guidelines in France. design results to comport with desired cost containment goals.(34). Under the terms of the licence agreement, an individual user may print out a PDF of a single entry from a reference work in OR for personal use (for details see Privacy Policy and Legal Notice). Hurwitz B. legal precedents. J Health Polit Policy Law 2001;26:249-66. NICE was set up to give guidance to the NHS as a whole, was found to be negligent on that account. While new cases have added to and set precedence regarding specific areas of law, Bolam remains fundamental to clinical negligence claims. I found that the Solicitor's service was extremely positive. The Bolam test is then described and how it has come to play such a prominent role in assisting the courts to assess if an appropriate standard has been achieved in medical negligence litigation. (13), Negligence is a normative legal doctrine (box 3). All Rights Reserved. stood accused of misconduct because he had prescribed injectable diazepam to patients, and to ask instead what a reasonable patient would want to know in this claim has not been made explicit, but in these situations, NICE,(45) the Department of Health,(46) The https:// ensures that you are connecting to the The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC[1] in which the court concluded that a doctor might be able to avoid a claim for negligence if he can prove that other medical professionals would have acted in the same way. (37), The status of guidelines should be made clear to clinicians incentives. 42. (42), Although treatment choices in discrete areas of medicine can setting normative boundaries. 21. Oxford: Radcliffe Medical Press, 1998. foreseeably harmed as a consequence, Guidelines do not actually set legal standards for clinical DiscretionIn general, doctors are expected to use appropriate clinical practice.