Bolam Test: Historical Context and Evolution

The Bolam test originates from the UK case Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582. This legal precedent was set in a negligence case involving medical treatment, establishing a principle that would profoundly influence the standard of care in medical negligence cases not only in the UK but also in various jurisdictions around the world. The principle is rooted in determining whether a healthcare professional has acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular art.

The Bolam principle is intended to provide an objective measure for assessing medical negligence, relying on established, evidence-based practices endorsed by a responsible body of medical opinion. It is not meant to be a carte blanche for individual practitioners to justify their actions based on informal consensus or personal beliefs. Proper application of the Bolam test requires that the professional’s actions are supported by a coherent and logical body of medical opinion, validated through rigorous analysis and reflective of broader, formal medical standards. The following case is Bolitho which added ‘logic‘ and ‘reason‘ and that changed everything.

While Bolam established that a doctor is not negligent if they acted in accordance with a practice accepted by a responsible body of medical professionals, Bolitho adds the important caveat that this body of opinion must be capable of withstanding logical scrutiny. It is a subtle but important distinction – under Bolitho, it is not enough for doctors to just say “Well, this is what we all do – so there those who are not medical have to listen to us!” They need to show their approach can be logically defended, particularly in terms of weighing risks and benefits. This helps prevent the perpetuation of illogical or outdated practices simply because they’re common.

All of this post is taken directly from case law and restructured. It was impossible in many parts to alter the words of the court and the deliberations. Quoting every word that was from the judgement and interleaving with explanations would have led to a confused array of quotation marks throughout – sometimes just one or two words. Restructuring is for the purpose of ease of readability. Full credits are given to the Courts.

Timeline of Events in the Bolam Case

• April 29, 1954: John Hector Bolam was admitted to Friern Hospital suffering from the after-effects of a mental illness of the depressive type.
• July 30, 1954: Bolam was discharged from the hospital after his initial treatment.
• August 16, 1954: Bolam was readmitted to Friern Hospital due to suffering from depression.
• August 18, 1954: Dr J. de Bastarrechea, a consultant psychiatrist attached to Friern Hospital, examined Bolam and advised him to undergo electro-convulsive therapy (ECT). Bolam is informed about the proposed treatment but was not warned about the risks, one of which included the risk of fractures.
• August 19, 1954: Bolam received his first ECT treatment. The details of this session are not specified in the judgment, suggesting it proceeded without the incident that led to the legal action.
• August 23, 1954: During his second ECT session, administered by Dr C. Allfrey, a senior registrar at Friern Hospital, Bolam sustained severe physical injuries. These included the dislocation of both hip joints with fractures of the pelvis, caused by the convulsive movements during the treatment. Notably, no relaxant drugs were administered prior to the treatment, and the patient was not restrained beyond having a pillow under his back and a mouth gag in place, with three male nurses standing by.

Context of Treatment

• Electro-Convulsive Therapy (ECT): This treatment involves placing electrodes on the head to allow an electric current to pass through the brain, causing convulsions similar to a fit.
• Administration details on August 23: An initial shock was passed through Bolam’s brain for approximately one second, followed within approximately four seconds by a succession of five momentary shocks. These were administered to dampen the amplitude of the jerking movements of Bolam’s body. The voltage used was 150 volts at a frequency of fifty cycles per second.

Legal arguments

Plaintiff’s Arguments

1. Failure to Use Relaxant Drugs: The plaintiff contended that the defendants were negligent for not administering relaxant drugs prior to the ECT. It was argued that the use of relaxant drugs would have significantly reduced, or altogether eliminated, the risk of the physical injuries (specifically fractures) that Bolam sustained.
2. Lack of Physical Restraints: Further negligence was alleged in the failure to manually restrain Bolam’s convulsive movements during the treatment. The plaintiff argued that such restraints could have prevented the severe injuries he suffered. The following are relevant:
   • “Manual Control”: The term “manual control” was used in the case, in the context of discussing the necessity of some form of restraint to minimise the risk of injury during ECT. Dr. Randall’s testimony, favouring the use of restraint, reflects the plaintiff’s argument against the defendants’ approach to administering ECT without such precautions.
   • “Some Form of Restraint”: This phrase, associated with Dr. Randall’s views, indicates the belief that implementing either relaxant drugs or physical restraints could have mitigated the risks associated with ECT, which aligns with the plaintiff’s contention that the lack of such measures constituted negligence.
   • “Risk of Fractures”: Discussion about the risk of fractures during ECT without the use of relaxant drugs or manual restraint underscores the plaintiff’s concern that adequate precautions were not taken to prevent his injuries.
3. Failure to Warn of Risks: The plaintiff also argued that the defendants were negligent in failing to inform him of the risks associated with ECT. This lack of warning denied him the opportunity to make an informed decision about undergoing the treatment, particularly regarding the risks of fractures and other physical injuries.

Defendant’s Arguments

1. Adherence to Accepted Medical Practice: The defendants argued that the treatment administered to Bolam was in accordance with practices accepted as proper by a responsible body of medical men skilled in that particular art. They maintained that competent doctors held divergent views on the use of relaxant drugs, manual restraints, and the extent of risk warnings provided to patients. As such, the treatment approach chosen did not constitute negligence.
2. Professional Discretion and Judgment: The defendants emphasised the importance of professional judgment in deciding whether to use relaxant drugs or manual restraints. They argued that the decision not to use relaxant drugs was made based on a clinical judgment, balancing the minimal risk of fractures against the mortality risk associated with the use of such drugs. Similarly, the choice not to apply manual restraints was based on a belief, supported by a body of medical opinion, that such restraints could potentially increase the risk of fractures.
3. Informed Consent: On the issue of warning patients about the risks of ECT, the defendants contended that emphasising minimal risks could unduly alarm patients, potentially depriving them of beneficial treatment. The approach adopted—providing limited information and waiting for the patient to ask questions—was presented as falling within the bounds of responsible medical practice. They suggested that detailed warnings, particularly about rare outcomes, might not be in the best interest of patients, especially those with mental health conditions who might not fully grasp the implications.

Medical arguments constituting evidence:

The medical evidence presented during the case showed that competent doctors held divergent views on several aspects of ECT:

1. The desirability of using relaxant drugs.
2. Restraining the patient’s body by manual control.
3. Warning a patient of the risks of electro-convulsive therapy.

• Dr de Bastarrechea: He represented the defendants’ practice and was quite definite in his view that since changing to the use of no manual control after 1951, the risk of fractures had not increased. This indicates that he was not in favor of using manual restraint as part of the treatment process.
• Dr Allfrey: As the senior registrar who administered the treatment to Bolam, Dr Allfrey followed the practice of not using manual restraint. He had adopted this practice based on the tuition he received and the prevailing opinion against the use of restraint, which was thought to possibly increase the risk of fractures.
• Dr Marshall: Serving as the deputy superintendent of Netherne Hospital, Dr Marshall also adopted the practice of not using manual restraint during ECT, aligning with the view that restraint might not be necessary or could potentially be harmful.
• Dr Baker: As a consultant psychiatrist and deputy Superintendent at Banstead Hospital, he mentioned that relaxant drugs were given only when there was an indication in favour and not otherwise, suggesting a cautious approach to both the use of drugs and, implicitly, restraint.
• Dr Page: He expressed a unique position by preferring to carry out the treatment in bed with the patient somewhat controlled by the blanket, sheets, and counterpane. This method indicates a form of light restraint but differs from manual control directly applied to restrain the patient’s movements.

Evolution and Impact

While the Bolam test established a significant standard for assessing professional negligence, its application has evolved over the years through various legal challenges and modifications. One notable case that contributed to this evolution is Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771. In this case, the House of Lords added a caveat to the Bolam principle, stating that the court is not bound to find in favour of a defendant if the court considers that the body of opinion relied upon is not capable of withstanding logical analysis. The Bolitho refinement ensures that the body of opinion underpinning the professional’s action must have a logical basis.

Recent Developments and Current Status

In recent years, the application of the Bolam and Bolitho principles has been further nuanced by cases and statutory reforms that emphasise the importance of patient autonomy and informed consent. The Supreme Court’s judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11 marked a pivotal shift towards prioritising the patient’s right to be informed about the risks associated with medical treatments. This case established that doctors have a duty to ensure that patients are aware of any material risks involved in a proposed treatment and of reasonable alternatives.

The Montgomery ruling represents a significant move away from a purely professional-centric standard of care towards a more patient-centric model. This shift underscores the legal recognition of the importance of respecting patient autonomy and the right to make informed decisions about one’s own body and medical treatment.

Commonwealth Countries

Australia: In Rogers v Whitaker (1992) 175 CLR 479, the High Court of Australia marked a departure from the Bolam principle, especially concerning the provision of information to patients. In this landmark case, the court emphasised the doctor’s duty to warn patients of material risks, adopting a more patient-centric approach similar to Montgomery over Bolam. This case set the precedent that the standard of care for informing patients of risks is not solely determined by medical opinion but also considers what a reasonable patient would expect to know.

Canada: Canada has also moved towards a standard that considers both professional practices and the reasonable patient’s perspective. While Canadian law still acknowledges the importance of expert medical opinion in determining the standard of care, courts have increasingly emphasised the need for clear communication and informed consent, reflecting principles akin to those in Montgomery.

Singapore and Malaysia: These jurisdictions initially followed the Bolam test closely but have shown signs of evolving. For instance, Singapore has acknowledged the Bolam test in medical negligence cases but also recognises the need for a patient-centric approach to informed consent, especially after the UK’s Montgomery decision. Malaysia has seen similar developments, with courts gradually incorporating patient autonomy into their legal standards for medical care.

Beyond the Commonwealth

United States: The US legal system has traditionally focused on the “reasonable person standard” in negligence cases, including those involving medical malpractice. This approach inherently demands consideration of what a reasonable patient would want to know, aligning more closely with the principles set out in Montgomery than with Bolam. The emphasis is on informed consent, with a significant body of case law and statutory law dedicated to defining and protecting patients’ rights to be fully informed about their treatment options.

European Countries: Within Europe, the approach to medical negligence varies significantly, but there is a general trend towards enhancing patient rights and informed consent. For example, the European Court of Human Rights has issued judgments that emphasise the importance of respecting patients’ autonomy and the right to information. Countries like Germany and France have legal frameworks that reflect a balance between professional standards and patient rights, albeit with variations in how these principles are applied.

Is Bolam dead?

The short answer is no. Bolam is still alive and still part of various tests. It is not as open as it used to be pre-Bolitho 1997.

In  Duce where it fed into the ‘professional practice test’ (in Montgomery 2015 UKSC):

(1) What risks associated with an operation were or should have been known to the medical professional in question. That is a matter falling within the expertise of medical professionals [83].

(2) Whether the patient should have been told about such risks by reference to whether they were material. That is a matter for the Court to determine [83]. This issue is not therefore the subject of the Bolam test and not something that can be determined by reference to expert evidence alone [84-85] Duce v Worcestershire NHS Trust [2018] EWCA Civ 1307

For an excellent exploration read Dr Simon Fox QC’s blog on this Bolam/Montgomery – an update after McCulloch.

Conclusion

The international legal landscape reflects a diverse array of approaches to medical negligence, with a noticeable shift towards prioritising patient autonomy and informed consent across many jurisdictions. This trend indicates a move away from the traditional deference to medical opinion epitomised by the Bolam test, towards a more nuanced understanding that incorporates patient perspectives and rights into the standard of care. As medical practice continues to evolve alongside societal values, legal systems worldwide are likely to further refine and adapt their approaches to medical negligence, informed consent, and patient care.

The Bolam test, along with its subsequent refinements and related judicial decisions, has significantly shaped the landscape of medical negligence law in the UK. It balances the complexities inherent in medical practice with the need to protect patient rights, especially in the context of informed consent. As medical practices and societal values evolve, so too does the legal framework governing medical negligence, reflecting the dynamic interplay between law, medicine, and ethics.

Internationally, the recognition of the limitations inherent in the Bolam principle and its application has indeed influenced legal systems, leading to adaptations and revisions in the way medical negligence is approached. Different jurisdictions have taken various stances on the balance between professional judgment and patient autonomy, reflecting cultural, legal, and ethical values unique to each society.