Bolam v Friern Hospital

Facts

John Bolam was a voluntary patient at Friern Hospital, being treated for depression. He was given electro-convulsive therapy in 1954. He was not given a muscle relaxant drug before the treatment, was not restrained other than by being held by nurses, and was not warned of the risk of fractures. During the treatment he suffered dislocation of both hip joints with fractures of the pelvis. He sued the hospital's management committee for negligence in failing to give relaxant drugs, in failing to restrain him adequately, and in failing to warn him of the risks.

History

The case was tried at first instance in the Queen's Bench Division by McNair J with a jury, which returned a verdict for the defendants.

Issue

What standard of care is required of a doctor in treating a patient, and whether, judged by that standard, the hospital was negligent in the way it administered the treatment and in failing to warn of risks.

Held

Judgment for the defendants. The jury, following McNair J's direction, found that the hospital had not been negligent.

Ratio

• A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in the particular art, even though other doctors adopt a different practice.
• The same test applies to diagnosis, to treatment and to the giving of advice about risks, and it is the standard of the ordinary skilled practitioner exercising that particular art, not of the most highly qualified.

The judgments

Key reasoning

• A professional is not required to possess the highest expert skill, only the standard of the ordinary skilled practitioner in that field.
• Where there is genuine disagreement among competent practitioners about the best course, the court is not entitled to prefer one body of opinion over another and to find negligence for adopting the other.
• On the evidence, there was a responsible body of opinion that supported the omission of relaxant drugs and the limited restraint used, and the failure to warn of a rare risk was also consistent with accepted practice.

Where it fits in the module

In the FHS Tort course, the case sits within the debate on how to assess the standard of care for those with special skill or exercising responsibility, which the Social Action, Responsibility and Heroism Act 2015 addresses by directing the court to consider whether a defendant acted for the benefit of society, demonstrated a responsible approach to the safety of others or acted heroically in an emergency. Bolam shows that deference to professional practice is a mechanism of judicial restraint in standard setting, which the Act extends in a different way. The test was qualified in Bolitho v City and Hackney Health Authority [1998] AC 232, which requires the professional opinion to withstand logical analysis, and displaced in respect of advice on risks by Montgomery v Lanarkshire Health Board [2015] UKSC 11. The tutorial question is whether the 2015 Act adds anything to the existing common law.

Criticisms

• The test lets the medical profession set the standard by which it is judged, leaving the courts unable to hold a practice negligent merely because it is common.
• It gives no guidance on what counts as a responsible body or how large it must be, which makes the test circular and unpredictable.
• Applied to advice about risks, it treats disclosure as a matter of medical judgment rather than of the patient's right to decide, a defect later corrected for consent.
• It turns the ordinary rule that the court decides what a reasonable person would do into a question of expert evidence, which favours defendants and makes claims harder to prove.