After Bolam

Lawyers are unhappy with Bolam because it appears to allow doctors, and not the courts, to decide the standard of care. This has been modified with regard to consent. Does Bolam still apply to treatment? Yes, but also with modification.

In Joycev Merton,[19961, a case involving brachial artery catheterization for coronary angiography, postoperative instructions to the patient were found to be negligent although they were standard practice for the time. The Court of Appeal approved the following reformulation of the law:

In the field of diagnosis and treatment, a defendant is not guilty of negligence if his acts or [decisions not to act] were in accordance with accepted clinical practice, provided that clinical practice stood up to analysis and was not unreasonable in the light of the state of medical knowledge at the time. (emphasis added)

The first part of this is Bolam; the italicized part is a departure from it. Under Bolam, following (even unreasonable) standard practice was a defense. This is no longer so. Although superficially acceptable, as all would expect their practice to be reasonable, there is cause for concern. A (usually medically unqualified) judge, rather than a doctor, may now decide whether medical practice is unreasonable and therefore negligent. It is difficult to predict what effect this will have, but clearly the fullest explanation of the basis for medical actions may be necessary. It remains to be seen whether the House of Lords (the highest appeal court in the United Kingdom) will support this approach, although similar departures from Bolam have been adopted in other jurisdictions.

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