What is the Bolam test for breach of duty?
Doctors are not merely good Samaritans, they have a legal duty to keep their patients safe from harm. The Bolam test establishes whether a medical professional has breached their duty of care which could lead to a clinical negligence claim.
By law, any doctor, nurse, anaesthetist or other medical professional must provide a reasonable standard of care while going about their duties. This is known as a duty of care. Where a health care professional breaches their duty of care, liability for negligence may arise.
The primary test for breach of professional duty is known as the Bolam test.
Bolam v Friern Hospital Trust
Bolam v Friern Hospital Trust is a leading case that establishes a healthcare provider's professional standard of care. It concerned a patient who sustained fractures during electro-convulsive therapy. Mr Bolam sought compensation on the basis that his anaesthesia had been negligent because:
- The anaesthetist did not administer muscle relaxation before the procedure
- Mr Bolam was not restrained during the procedure
- Doctors had not warned him about the risks involved.
Mr Bolam's claim failed. At the time, it was not the usual practice to give patients muscle relaxation. Indeed, some doctors thought that administering a muscle relaxant or restraining the patient might increase the risk of fracture. What is more, patients were not routinely warned of the small risks associated with ECT unless the patient specifically asked.
In this instance, the medical team had followed accepted medical protocols. As such, they were not negligent in the way they carried out the electric shock therapy.
Applying the Bolam test
To satisfy the Bolam test, a medical professional must show that he acted in a way that a responsible body of medical professionals in the same field would regard as acceptable. The test is essentially a peer review of the doctor's behaviour - if others would have acted in a similar way, then the doctor is unlikely to have breached his duty of care.
It does not matter that other medics would have delivered a different treatment. Given the complexities of modern medicine it is possible, and even likely, that a dissenting group of doctors would done things differently. The key point is that a group of similar professionals think that the doctor acted in an acceptable manner.
The importance of following practice guidelines
Today, bodies like NICE publish extensive practice guidelines that give doctors (and personal injury lawyers) 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 doctors supports their care decisions.
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