3.4 The standard of care appropriate to experts and professionals
3.4.3 Applying the test
The test not surprisingly has caused controversy. Nevertheless, the House of Lords has subsequently approved it in relation to various aspects of medical treatment and responsibility, even where they might also have criticised the rule.
Consent
It has, for instance, been accepted as appropriate in determining the level of information a doctor should give when obtaining consent from a patient. In doing so the House of Lords also dismissed the doctrine of ‘informed consent’ as having application in English law.
CASE EXAMPLE
Sidaway v Governors of the Bethlem Royal & Maudsley Hospitals [1985] AC 871 Mrs Sidaway had suffered persistent pain in her right arm and shoulder and had on advice of her surgeon consented to a spinal operation to relieve the pain. On obtaining consent, the doctor had accurately informed her that there was a less than 1 per cent risk of something going wrong. What Mrs Sidaway claimed the doctor had not told her was the potentially cata- strophic consequences if something did go wrong. In the event, while the operation was carried out without negligence, the damage did occur and she was left paralysed. She sued on the grounds that the surgeon had been negligent in failing to properly warn of the possible extent of the damage. The House of Lords held that the degree of information given by the doctor conformed to ‘a practice accepted as proper by a responsible body of neuro- surgical opinion’ so that there was no negligence. They also rejected the idea that there should be a doctrine of ‘informed consent’ as there is in other jurisdictions because this would make opera- tion of the Bolam test impossible.
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NEGLIGENCE: BREACH OF DUTY
JUDGMENT
‘The only effect that mention of risks can have on the patient’s mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient’s best interests to undergo. To decide what risks the existence of which a patient should be voluntarily warned . . . is as much an exercise of profes- sional skill and judgement as any other part of the doctor’s comprehensive duty of care.’
In a much earlier judgment, Hatcher v Black, The Times, 2 July 1954, Lord Denning had taken a much firmer stance in identifying that the level of information given by a doctor was indeed a clinical decision. In the case he complained that the rise in medical negli- gence claims was in effect ‘a “dagger” at the doctor’s back’.
One of the difficult areas for judges to determine is the degree of information that should be given to a patient in advance of any form of intrusive medical treatment.
CASE EXAMPLE
Chapman v Oxford Radcliffe Hospital NHS Trust (Unreported, 29 May 2002) Here the patient suffered meningitis and then underwent a series of operations and different treatment including the insertion of a titanium plate in his skull to replace infected bone that had needed to be removed. This was then removed when an infection developed. Following the treatment the patient claimed to suffer various neurological disorders. He then claimed that he had not been properly advised about the potential risks involved in the treatment, par- ticularly the risk of infection from the plate. It was held that sufficient information had been given to the claimant who, in the light of the serious nature of his illness would probably have consented anyway, and the health authority was not negligent in the circumstances.
However, the courts appear now to be prepared to take a more active view in determin- ing what level of information is appropriate to give a patient in advance of treatment.
CASE EXAMPLE
Chester v Afshar [2004] UKHL 41; [2004] 4 All ER 587
The claimant, who suffered from back pain, consulted a well- known neurosurgeon who recommended an operation. The claimant did not wish to undergo an operation but was per- suaded by the surgeon. In fact there was a small risk, between 1 and 2 per cent, of nerve damage resulting from the operation that might range from minor effects to paralysis. The court accepted that the doctor had failed to warn of these risks and in fact the claimant did suffer fairly serious nerve damage, although there was no question of negligence in the opera- tion. The Court of Appeal held that the surgeon had fallen below the appropriate standard in failing to give full information which, if it had been given, would have meant that the claimant would not have had the operation at that time. Thus she would not have suffered the nerve damage at that time either. The Court felt that if it did not establish liability in the case then it would be to undermine the duty on doctors to warn of risks that no reasonable patient would refuse even after advice of risks was given. Doctors would be given the discretion in that instance not to inform at all. The House of Lords agreed despite the obvious problem in rela- tion to the standard means of proving causation.
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3.4 STANDARD OF CARE FOR PROFESSIONALS
Where consent is required in respect of children who are incapable of giving a valid consent it is customary for doctors to seek the consent of the parents of the child. If this is withheld doctors commonly seek the consent of the courts either through care pro- ceedings or through the inherent jurisdiction of the High Court. A failure to do so could result in a breach of Article 8 of the European Convention of Human Rights. This was the case in Glass v UK [2004] 39 EHRR 15.
Examination and diagnosis
The original test in Bolam had its context in situations where the medical professionals had a range of potential clinical practices to choose from. It was quite rightly used to determine whether or not the choice was legitimate according to the standards accepted by doctors. The rule, however, has been extended well beyond this simple context and has also been accepted and held to apply to the diagnosis of illness.
CASE EXAMPLE
Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635 Here consultants operated before the results of certain tests they had ordered became avail- able. They both considered that the patient had pulmonary tuberculosis, but also felt that she might have Hodgkin’s disease and decided to operate immediately without benefit of the information from the tests. She claimed that the operation damaged her vocal cords unneces- sarily. The court determined that there was no negligence because the doctors had followed a practice approved by a responsible body of medical opinion, even if it was true that quite conflicting practices were possible at the time.
In the above case Lord Scarman stated:
JUDGMENT
‘There is seldom any one answer exclusive of all others to problems of professional judgement.
A court may prefer one body of opinion to the other; but that is no basis for a conclusion of negligence.’
The application of the test to diagnosis may be critical. This is because one potential result of misdiagnosis is that the wrong treatment may be given or wrong operation carried out, leading to even further problems.
CASE EXAMPLE
Ryan v East London and City HA [2001] WL 1890334
Here a child suffered a permanent spinal disability following an operation that had been carried out after a misdiagnosis of a spinal tumour. The court accepted that if the diagnosis had not been negligent the child would have had the correct treatment and not suffered the disability.
In this way failing to take proper account of technical information which then leads on to mistreatment is also falling below the appropriate standard of care if a competent body of medical opinion would have reacted to the information differently.
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NEGLIGENCE: BREACH OF DUTY
CASE EXAMPLE
Hunt v NHS Litigation Authority [2002] WL 1480071
Here the doctor failed to fully realise the implications of a cardiotocograph and gave a woman in labour drugs to speed up her labour, then left her in the care of midwives, attending peri- odically. In fact the doctor should have noticed that the baby had an irregular heartbeat and that something was wrong. The baby suffered brain damage when it was born with the cord tight around its neck. The doctor should have carried out a forceps delivery at a much earlier stage if she had reacted correctly to the information from the tests.
The test will inevitably be appropriate in terms of the examination given by a doctor as well as the diagnosis resulting from it.
CASE EXAMPLE
Reynolds v North Tyneside HA [2002] Lloyd’s Rep Med 459
A baby suffered injury and it was shown that a vaginal examination of the mother by the midwife at an appropriate time would have lessened the chance of injury. The judge accepted evidence that a reasonably prompt examination would have been expected of midwives at the time of the case and the health authority thus fell below the appropriate standard of care in failing to provide one.
Choice of treatment
It is also long since accepted that the test applies to medical treatment, so that all aspects of medicine fall within the scope of the rule.
CASE EXAMPLE
Whitehouse v Jordan [1981] 1 All ER 267
A senior registrar had carried out a forceps delivery of a baby. The baby had become wedged and suffered asphyxia and brain damage. The allegation was that the doctor had used the forceps with too much force and that was the cause of the damage. In fact the mother gave evidence that she had been lifted off the bed when the forceps were applied to the baby’s head. In the House of Lords, Lord Edmund- Davis rejected the view put forward by Lord Denning in the Court of Appeal that an error of clinical judgement should not necessarily be treated the same as negligence.
Lord Denning considered:
JUDGMENT
‘while some errors may be completely consistent with the due exercise of professional skill, other acts or omissions . . . may be so glaringly below proper standards as to make a finding of negligence inevitable’.
Nevertheless, he confirmed that the Bolam test was the appropriate test by which to measure standards of professional activity.
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3.4 STANDARD OF CARE FOR PROFESSIONALS
Level of expertise
Of course the standard will not necessarily reduce because of the lack of expertise of the doctor. The standard is that appropriate to the doctor or professional exercising and professing to possess the skill in question. It is not, therefore, possible to argue that the standard is reduced because the defendant lacks experience. So the junior doctor must exercise the same degree of skill as the experienced doctor.
CASE EXAMPLE
Wilsher v Essex Area Health Authority [1988] 1 All ER 871
A baby was born prematurely and with an oxygen deficiency. A junior doctor then adminis- tered excess oxygen by mistake. The junior doctor inserted a catheter in an artery rather than a vein and a registrar failed to spot the mistake. The baby was later found to be nearly blind.
A possible cause of the blindness was the excess oxygen. The House of Lords rejected the health authority’s argument that the standard of care expected should be reduced because it was a junior doctor. Accepting such an argument would then mean that the care a patient was entitled to would depend on the experience of the doctor who treated them. This was unacceptable and negligence was held to have occurred in the case.
While the same standard of skill is expected of the doctor (professional) regardless of his level of experience, in circumstances where the defendant lacks the resources that might generally be available the court will recognise that the same standard of care cannot be expected. However, this is recognition of the resource implications.
CASE EXAMPLE
Knight v Home Office [1990] 3 All ER 237
A prisoner had committed suicide while in a prison hospital. In NHS hospitals there would be a general duty of care to protect suicide risks from harm. The court recognised that because of the greater difficulty of supervising prisoners who might attempt suicide and the lack of resources available to deal with the problem, the same standard of care could not be expected of the prison doctors.
However, this principle may depend on the type of care in question. For instance a prisoner might expect the same standard of obstetric care as would generally be avail- able (see Brooks v Home Office [1999] 2 FLR 33).