#10058 - Bolam Essay - Medical Law and Ethics

MEDICAL MISHAP/BOLAM TEST

GOOD OPENING POINTS

1. Jonathan Herring (2012) – difficult to find an accurate picture of the number of adverse events involving medical professionals in England and Wales, although

2. Chief Medical Officer report (2001) – showed that 10% of hospital admissions lead to some kind of adverse event

MEDICAL MISPRACTICE CONSEQUENCES

1. criminal prosecution

2. civil action in tort or contract (where private healthcare)

3. disciplinary proceedings brought by the NHS or the relevant professional body (GMC) which will address, inter alia, whether doctor needs retraining or removing from the profession

CRIMINAL PROSECUTION

1. CHARGE:

1. R v Adomako – doctor can be charged with gross negligence manslaughter where patient dies as a result of extremely negligent conduct

2. Corporate Manslaughter and Corporate Homicide Act 2007 – NHS trust could be convicted of manslaughter in the way the Trust was run if this negligence caused a patient’s death

2. ANTI-MEDICAL CONVICTION:

1. Oliver Quick (2010) – stated that doctors should only be convicted where they actually foresaw the harm, carelessness should be an insufficient basis for criminal liability

2. Doctors exposed to higher chance of being responsible for gross negligence than ordinary people

3. PRO-MEDICAL CONVICTION:

1. Herring (2012) – Devil’s advocate: Should those who hurt others accidently whilst driving be treated differently to doctors?

2. Doctors are highly rewarded and we entitled to expect higher standards, hence why Alghrani et al (2011) – argue for the creation of a new offence of willful neglect of patients by medical professionals

BOLAM v FRIERN TEST (QBD)

1. Normal reasonable man test to establish the duty of care in negligence cases is modified for all health care professionals MCNAIR, J:

‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art’

2. Newman v Maurice – won’t be enough to just introduce expert evidence that they would have done it differently to the defendant

3. Defreitas v O’Brien – evidence that just 4/5 special neuroscientists would endorse D’s view was enough

4. Bolitho v City – HoL approved Bolam test, although Lord Browne-Wilkinson held that the body of opinion relied upon would need to demonstrate a ‘logical basis’

5. Although, this illogical basis has arguably made little difference as:

1. test is still referred to as Bolam test

2. Wisniewski Brook LJ held: ‘It is quite impossible for a court to hold that the views sincerely held by doctors of such eminence cannot logically be supported at all’ BUT:

3. Burne v A - trial judge rejected the views of the experts on what is a responsible course of conduct

4. Thus, court can find illogical basis, but as Cranston J said in Birch v UCLH, it will be rare

6. Medical professional judged at the time of the incident, not on hindsight – MOJ v Carter

ARGUMENTS FOR/AGAINST BOLAM

Medical Innovation

1. Brazier and Miola (2000) – Bolam enables innovative and exciting medical practice which is necessary

2. Wilsher v AHA – Mustill LJ stated that where a treatment is relatively new and safeguards are in the course of development, so long as the decision to embark was justifiable and with consent, should be careful to find negligence – highlights how law already accommodates the inherent risk associated with medical innovation HOWEVER

3. Lord Saatchi – has proposed a Medical Innovation Bill which will introduce the statutory defence, whereby, even if a doctor has not satisfied the Bolam test, he will not be liable if the decision to treat the patient was ‘taken responsibly’ in accordance with clauses 1(1) and 1(2) of the Bill. This is meant to encourage medical innovation as the current law, according to Lord Saatchi, mandates adherence to standard treatment. It had first reading in HL on 5/6/2014

4. SLOWS DOWN MEDICAL ADVANCEMENT

• Me: Can take longer for ideas to spread and for new practices to become entrenched and common practice as demonstrated by:

• Crawford v Board of Governors – D doesn’t have to be fully up to date with recent (published 6 months ago) research on practices

5. DEFENSIVE MEDICINE

• Jones and Morris (1989) – fear of litigation leads to defensive medicine

• Kessler, Summerton and Graham (2006) – defensive medicine involves offering unnecessary invasive procedures to avoid potential liability and equally not offering risky treatments that could have been beneficial

• S.1 Compensation Act 2006 – one viewing of this legislation is that it would make a court less likely to find negligence if this finding would serve to encourage defensive medicine HOWEVER Brazier and Cave doubt this legislation, which applies to torts generally, would have any effect on clinical negligence

Operation of Bolam Can Lead to Extreme Results

1. Maynard v West Midlands – HL criticized first instance judge for trying to weigh up competing bodies of professional opinion – only need a body of medical opinion

2. ME: in practice a defendant will always be able to find a handful of doctors to support his opinion – so strict reading of Bolam test places a very high threshold on C’s

Uncertain/unascertainable

1. Herring (2012) – It places an impossible burden on claimants as they cannot interview every expert in the field to ensure no others would act in the same way. Especially when factor in restrictive approach to LOSS OF CHANCE

2. Lord Woolf – writing extra-judicially said success is about 17% in 2001

3. Rachel Mulheron (2010) – shown that the recent trend is for courts to apply a case-by-case approach (with little reference to case law) and determine whether a doctor has failed to adhere to guidelines. Where they have this has been treated as a red flag that warrants explanation and in the absence of it, may constitute a finding of negligence. THUS, ME: arguably the courts have developed their own approach, distinct from Bolam, which might be in response to judges finding it too difficult to accurately apply Bolam.

4. Richards v Swansea – guidelines case from opinion Field J

Costs

1. General point

• the high threshold placed on claimants is unfortunately necessary to discourage excessive litigation. Medical negligence is already a significant financial burden on the NHS

• Simanowitz – litigation crisis is a myth relied upon by the medical profession to avoid proper legal scrutiny

2. Overall

• High Settlement figures: 2010-2011 863 million paid in clinical negligence claims. Increase from 633 million in 2007-08.

• 16.8 billion put aside for future NHS Litigation Authority accounts

3. Lawyers

• NHS Litigation Authority – 257m in total legal costs paid in 2010/2011

4. CFAs

• fear that they encourage litigation and increase costs ALTHOUGH

• non-recovery of success fees subsequent to Jackson

5. Damages Generally

• Heil v Rankin – damages have gone up

• 10% uplift now to PSLA awards in Judicial College Guidelines 12^th Edition

Doctors Shouldn’t Set Standard

1. Brazier and Miola (2000)

• Bolam has generally left the medical profession to set its own standards. But, Harold Shipman and Alder Hey retained organ scandals highlight the need for the law rather than medical professionals to set standards of good practice

• They suggest that articulation of new guidelines, such as NICE, means law is in a much better position to scrutinize doctors, based on asking for justifications for why they departed from the prescribed guidelines.

2. Edward Wong v Johnson

• A practice widely endorsed by solicitors in Honk Kong was nonetheless found to be negligent

• highlights how with another profession (ie. solicitors) it is not a defence to show that other professionals would have acted in the same way.

3. Mulheron (2010) – Judicial scrutiny is unjustifiably less than with other professionals

4. However, Birch v UCLH – Cranston J ‘It would be folly for a judge with no training in medicine to conclude that one body of medical opinion should be preferred over another, when both are professionally sanctioned and both withstand logical attack’ –idea being that a judge is not in a position to choose between two competing views of medical expert opinions. So long as there is a competent school of thought supporting D there is no negligence – reinforced by House of Lords in Maynard v West Midlands

Easy to Escape Liability

1. Teff (1998) – just need a doctor friend to say treatment was responsible to escape liability, which encourages nepotism and places claimants in a precarious position...