However, upon appeal the House retired its option to scrutinise the evidence and simply applied the dictum of Bolam, thus exonerating the defendants. The Bolam test and subsequent legal development While Donoghue v Stevenson9 plays a decisive role in general negligence cases, Bolam v Friern Hospital Management Committee10 is equally authoritative in professional negligence claims. Whether an action is negligent or not should be judged against A test that arose from English tort law, which is used to assess medical negligence. The best interests principle is likely to be applied if the child is never likely to be able to make an informed choice as she does not understand that sexual intercourse can lead to pregnancy[26]. The absolute right to refuse treatment ‘exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent’ [25] . This has been particularly the case in relation to the sterilisation of those who are mentally handicapped. Blyth v Bloomsbury Health Authority (1993) 4 Med LR 151, 157, Bolitho v City and Hackney Health Authority [1998] 2 AC 232, Buchanan, Alec. Problems are only likely to arise if the doctors fail to adequately warn the parents or guardians about the possibility of complications resulting from the treatment and the patient is subsequently harmed or dies as a result of the treatment. Therefore, the only possible occasion where paternalism may benefit an individual is in the instance where a ‘new life’ is championed as superior to one that may have otherwise been led [19]. The usual rules to establish negligence rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty.The standard test of breach is whether the defendant has matched the abilities of a reasonable person. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is a case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (e.g. Some information might confuse, other information might alarm a particular patient. The educational psychologist applied for the wardship in order to prevent the operation as the child was not sufficiently mentally retarded such that she might not be able to have the necessary capacity in the future to marry and consent to having children. Doctors and the courts are reluctant to overrule Bolam totally especially since it the number of successful claims for negligence has risen dramatically in Australia since the decision of the court in Chappel v Hart[28]. Hence as Mackenzie and Cox observe, Brazier finds the medical deviation towards consumerism as a tocsin to restore medical integrity amid suggestions that clinicians are being reduced to mere ‘body technicians’ [30] . In his speech he stated. Professor Vedsted’s finding have been Endorsed in The UK. It could also lead to claims against doctors for disclosing too much information as in some instances the disclosure might cause psychiatric harm to the patient. A landmark case in English medical law and, it is submitted, one of the most radically controversial decisions in history. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. To export a reference to this article please select a referencing stye below: If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! Yet the case law encircling the pastures of repudiating medical treatment continues to uphold the principle of self determination. Indubitably, it is an arduous task to strike a balance between the best interests and wishes of the patient. Other fields face a more stringent analysis by judges in an effort to guarantee that expert testimony is reasonable under the circumstances. This has been broadly accepted by the courts as a symptom of the condition and is used in the decision making process as a tool to be used to enforce non consensual treatment of such patients. Conversely, the medical practitioner will dislike and disparage any attempt to undermine the notion that the ‘doctor knows best’. The patient in this case displayed the symptoms of Tuberculosis, but the doctors could not rule out several other illnesses. Moreover, the patient has not been warned of the potential for physical injury resulting from the treatment. Explanation. 22nd Jul 2019 The Government rejected this criticism of the Act stating that this was unlikely to ever happen as the hospital would be able to rely on s62 of the Mental Health Act 1983 which gives the institution the right to force feed the individual regardless of consent from the individual. Nonetheless, equivalent arguments can be made from a patient’s perspective who having suffered a loss may conceivably have to live with it for the duration of his life. Bolam holds that the law imposes a duty of care between a doctor and his patient, but the standard of that care is a matter of medical judgement. Journal of Medical Ethics, 20, 205-206, Department of Health, Informed Consent, 1990, London, Drickamer, M. A. London: Royal College of Surgeons, 1997. Seeking patients’ consent: the ethical considerations. It is thus unsurprising that judicial deference exists as the repercussions of legal verdicts can have a debilitating effect on the medical terrain. Indeed a growing ethos within the NHS nowadays is that of harmonious participation where doctors work with patients. Many have disagreed with this and were concerned that allowing such an action could lead to doctors withdrawing treatment for mentally handicapped patients. Skip to main content Accessibility help We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Since most doctors learn through practical experience this could be denied to them if the courts were to follow the model established in Australia and insist on doctors disclosing their level of expertise to the patients. D. Mehl, et … As yet these fears have been unfounded. Mr Bolam was not restrained during the procedure 3. Take a look at some weird laws from around the world! In a discipline like Medicine, there are diverse practices followed by doctors, but mere conformity with one of these practices cannot amount to negligence. In this case the House of Lords held that as the child was severally mentally handicapped and had no understanding that intercourse could lead to pregnancy it was in the best interests of the child to be sterilised as she would be unable to cope with motherhood or the removal of the child from her care if she were to have a baby. He applied the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) as to whether that omission was accepted as appropriate by a responsible body of medical opinion. Prior to these comments, in Salmond’s Law of Torts, it was claimed that negligence alludes to an ethical concept as general practice itself may not be on equal terms with the ‘standard of care required of a reasonably prudent man’ [43] . Whether this mindset is a consequence of a lucid admiration for the esteemed profession or due to the complexities of medical evidence, it is coherent that this partiality has manifested in the past. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. In this case the doctors had commented to the patient that risks were ‘not uncommon’, but they did not express to the patient the number of occasions were complications had occurred. Buckingham: Open University Press. Sorted by Relevance . | Sort by Date Showing results 11 to 20. Thereupon, the patient suffered inexorable damage to the pelvis area induced by the ECT. Nonetheless, set against the backdrop of Hippocrates’ 5th Century clinical pledge, paternalism is also heavily rooted in the consequentialist moral theory of utilitarianism [9] . Bolam was … “I do not subscribe to the theory that the patient is entitled to know everything nor to the theory that the doctor is entitled to decide everything…The doctor, obedient to the high standards set by the medical profession impliedly contracts to act at all times in the best interests of the patient. As they were told that there was no possibility of their son ever coming out of this state they felt that it was in his best interests to let him die.

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