How does the Bolam test affect my clinical negligence claim?

Surgeon operating on a patient

Doctors have a legal duty of care for the safety and well-being of their patients. The 'Bolam' tes' is used to establish whether a medical professional has breached their duty of care, potentially leading to a clinical negligence claim.

What is a duty of care?

Doctors, nurses, anaesthetists, and other medical professionals, have a legal obligation to provide a reasonable standard of care when carrying out their duties. This obligation is known as a duty of care.

If a health care professional breaches their duty of care and a patient is injured or made ill as a result, there may be grounds for a medical negligence claim.

The primary test used to establish whether there has been a breach of professional duty is the Bolam test.

See also:

Making a medical negligence claim

What is the Bolam test?

The test used to determine whether a medical professional has breached their duty of care is known as the 'Bolam' test (or principle).

The Bolam principle:

"tests whether the actions of the health professional in question could be supported by a ‘responsible body of clinical opinion" (sce. resolution.nhs.uk)

To pass the test, medical professionals must prove their actions were deemed acceptable by a responsible group of peers in the same field.

In essence a peer review, the test holds that if other doctors in similar circumstances would have acted the same way, the doctor in question likely did not breach their duty of care.

This standard focuses on what should have been done, rather than what could have been done, highlighting that differing approaches by other professionals do not necessarily indicate negligence. The key point is whether a consensus of peers finds the actions taken were acceptable medical practice, regardless of whether other treatment options may have been available.

See also:

Read more about the Bolam test

How was the Bolam test established?

The Bolam v Friern Hospital Management Committee [1957] is a tort law case that establishes a healthcare provider's professional standard of care.

The case concerned a patient who sustained serious fractures during electro-convulsive therapy (ECT). Mr Bolam sought compensation on the basis that his doctor had been negligent because:

  • The doctor did not administer muscle relaxation before the procedure
  • Mr Bolam was not restrained during the procedure
  • Doctors had not warned Mr Bolam about the risks involved.

Mr Bolam's claim failed. At the time, it was not the usual practice to give patients muscle relaxation. Some doctors thought that administering a muscle relaxant or restraining the patient might increase the risk of fracture. In addition, patients were not routinely warned of the relatively small risks associated with ECT, unless the patient specifically asked about the risk.

In this case, it was decided that the medical team had followed the accepted medical protocols at the time. As such, the medical team was not deemed to have been negligent in the way they carried out the ECT.

How is the Bolam test applied?

In a clinical negligence compensation claim, the Bolam test is applied to determine if a healthcare professional has breached their duty of care towards a patient.

The process involves the following steps:

Expert testimony

The court relies on testimony from medical experts in the same field as the professional being accused of negligence. These experts review the actions taken by the medical professional in question.

Standard of care evaluation

The medical experts will assess whether the care provided met the standard that a responsible body of medical opinion would regard as acceptable. This involves comparing the actions of the accused professional to what is considered competent and customary practice among peers.

Acceptable practice

The focus is not necessarily on identifying the best practice, but on determining if the practice was acceptable. Even if another treatment might have been preferable, the test allows for a range of acceptable approaches - as long as they are supported by a significant body of medical opinion.

Decision

If the court finds that a competent body of medical professionals would have acted similarly in the same circumstances, the healthcare provider is likely not found negligent under the Bolam test. Conversely, if the actions fall outside what any responsible body of medical professionals would consider acceptable, the medical professional may be deemed negligent.

The application of the Bolam test acknowledges the complexities and nuances in medical practice, allowing for a variance in acceptable medical treatments and interventions. It underscores the principle that not every adverse outcome in healthcare is the result of negligence, focusing on the reasonableness of the decisions made at the time.

See also:

How does a solicitor prove breach of duty in a clinical negligence claim?

The importance of following practice guidelines

Today, bodies like the National Institute for Health and Care Excellence (NICE) publish extensive practice guidelines that give doctors (and personal injury solicitors) objective benchmarks for comparison.

A doctor who acts contrary to the recommendations laid down by NICE is likely to be found to have breached their duty of care, even if another group of medical professionals supports the doctor's actions or care decisions.

Clinical negligence claims

Breach of duty injuries are usually categorised as clinical negligence. Click on the icon below for more information.

Get expert advice now

Interested in talking to an injury specialist about your claim?

  • Calls are FREE
  • Confidential consultation
  • No obligation to claim

Call 0800 376 1001

Mon-Fri 8am-9pm, Sat 9am-6pm, Sun 9:30am-5pm

or arrange a callback

Citations

Source: Tort law

Source: Electroconvulsive therapy (ECT)

Chris Salmon, Director

Author:
Chris Salmon, Director