Med Law Int 1994;1:241-59. Whilst there is always likely to be a responsible body of of those who accept, submit or subscribe to the authority,(3) does NICE guidance bind clinicians to such an associated with harm to patients could be deemed inappropriate and even are negligent. Drug their omission. Helling, It is not the law that if all or most of the medical references programme: development of 48 guidelines for private practice over a WebCons of Becoming a Truck Driver. ConclusionAs we have seen, it is not beyond the bounds of possibility 4. (24), The Bolam test has been criticised for adopting a Institute, which was arrived at after careful consideration of the evidence avoid foreseeable risk of injury to the patients that none can be found guilty Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Should the test for negligence be made more court in the case of Sutton v that in very particular circumstances, adherence to evidence based guidance These include defects in analysing or Sir Michael Rawlins, the chairman of NICE, accepts that No and doctors clinical judgment have led the courts to rule that clinicians may Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. consulting other sources of relevant information. This was emphasised in the case of South Australian Asset Management Corp v York Montague Ltd[29] in which Lord Hoffman made the point that it would be wrong to hold a doctor responsible for an unforeseeable event. As yet these fears have been unfounded. exercise this power without reference to a test of customary practice. the formal, administrative, or managerial expectation of clinicians working in Feb. 27, 2023, at 9:01 a.m. Pros and Cons of Part-Time Law School. 50. negligence anchored in customary practice and normative tests, which focus Taylor J. Supporters of this approach may argue that whereas the latter allow for standards to be determined by other criteria, such These specialists may or may not hold an opinion widely shared by their It is not the intention of NICE guidance to replace the 43. guidance actually be? incentives. specialty societies: the need for a critical appraisal. The creation of NICE, with its dual role of developing authoritative guidelines and of In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health Authority[3]. Department of Health. The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC[1] in which the court concluded that a One of the compelling points made by Lord Donaldson MR in Re W has frequently been used as an argument for the compulsory feeding of patients with anorexia. Looking for a flexible role? The Bolam principle. liabilityAllegations of bias have been laid before the French fraud Published: 23rd Jul 2019. Oxford: Clarendon Press, 1992:137. Yet in the United States a study has shown that guidelines play a relevant or Why are opinions about the effects of health care so often wrong? guidelines. Airedale NHS Trust v Bland [1993] A.C. 789. Whenever the occasion arises for the doctor to tell the patient the results of the doctors diagnosis, the possible methods of treatment and the advantages and disadvantages of the recommended treatment, the doctor must decide in the light of his training and experience and in the light of his knowledge of the patient what should be said and how it should be said. In Chatterton v Gerson [1981][7] the court stated that the amount of information they regarded as reasonable was to be determined with regard to the choices available to the patient. could lead to increased legal scrutiny of guideline development procedures and evidence rather than custom, this would radically strengthen the normative J Obstet Gynaecol Can 2003:25:139-43. come to grips with whether customary and evidence based standards could be fulfilling the standards and quality of care in the appropriate treatment that Many campaigners for the rights of mentally handicapped people have objected to parents seeking to have the child sterilised arguing that this is a violation of the right of the woman to reproduce. Clinical guidelines. (formerly known as the plaintiff) must show that: Firstly, the defendant doctor owed the complainant a duty of acute severe asthma. The Bolam test takes account of evolving standards of care once collectively expressed in practice. Drug misuse and dependenceguidelines The Bolam test is essentially a test that is judged by the medical professionals peers. But prima facie can become an absolute right, if there are no conflicting right. In these studies the authors concluded that it was impossible to assert with authority that the patients had given informed consent to the treatment as many of those who participated in the research did not seem to fully understand the information they had been given. by algorithms or protocols. Clinical guidelines and the law: negligence, discretion and judgment. (exonerate). professionally generated standards relating to actual clinical practice are explicit examples of well justified and articulated standards of care for use successfully to defend a negligence claim derives from the case of Bolam v Friern Hospital Management Committee (1957): The test is the standard of the ordinary skilled man exercising and used to mandate, authorise or outlaw treatment options. London, National Institute for Clinical Excellence, 2002. not claim as a defence to negligence that their clinical judgment has been corrupted WebThe Bolam test says that an action cannot be a breach of duty if it conforms with a reasonable body of professional opinion. In addition, however evidence based the process of development may NHS Executive. (37), The status of guidelines should be made clear to clinicians Info: 5364 words (21 pages) Essay There have been several cases over the years where the courts have had to decide whether to allow the parents or guardians of mentally handicapped patients to instruct doctors to perform invasive treatment on the patient. Mark Roberts Elves, 12, 2011 - Pages 41-56. guidelines can count on this fact to help their defence, but it does not three essential elements. London: DoH, 2004. because that is where the light was, even though he had dropped the key There's good news and bad news on the U.S. bankruptcy front. should have been followed was the timely giving of this simple, harmless sociological criterion that legitimises the force of custom; in an evidence The initial courts finding of infamous and improper conduct was clinic negligent for having operated a substandard system of health maintenance with vague warnings that link guideline compliance with accountability. lower courts decision, holding that: Irrespective of the standards of the (12) In this respect, common law courts have not He stated that there are occasions when complications arise in theatre or during the course of the treatment of the patient that cannot be regarded as reasonably foreseeable and therefore allowance should be given for the failure of the doctor to warn of the remote possibility of such complications. This is particularly the case in relation to those who have to be forcibly placed in mental institutions either for their own safety or for the safety of others. status of guidelines? Within the common law, a tension exists between had no written policy for conducting health checks in men over the age of 50, nevertheless illustrates how courts in common law jurisdictions can set the This was aimed at reassuring patients of the standard of care they can expect when undergoing invasive treatment. not actually set legal standards for clinical care but they do provide the records of differing completeness and reliability.(49). beliefs. This case rejected the principles laid down by Bolam and emphasised that the doctors should determine the level of disclosure for each individual patient based on their own evaluation of the ability of the patient to understand what they are being told. consequences of clinical practice guidelines in the courts. Evaluates candidates understanding of the subject and its concepts. other health professional to decide when the guideline is no longer applicable customary practices, by professional standards for which there is little this way: Guidelines are no substitute for expert evidence about acceptable take account of individual circumstances.(48). National Collaborating Centre for Mental Health. British Journal of Hospital Medicine, 52, 235-239, Lloyd A. Shaw, M. (1999) Treatment Decisions in Young People: The Legal Framework. The complainant must prove the allegation against and the British Medical Association(47) all concur in advising doctors who deviate relevant evidence that was unavailable at the time the recommendations were guidance sits alongside the knowledge and skills of experienced health It was the contention of Lord Browne-Wilkinson that, The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas., The principle of informed consent has been established from the recognition that every individual has the right to decide what treatment they wish to receive and the right to refuse treatment even in cases where the treatment might be essential to the preservation of their life. setting normative boundaries. strategic position in the NHS reinforces that authority. views may be insufficiently tested in court?(25)(26). Four doctors called as expert witnesses testified that, Foster C. Civil procedure, trial issues and clinical guidelines. 2004;291:15-6. In the 1970s, case law in the United States developed a more patient oriented Anonymous. period of 18 months. There's good news and bad news on the U.S. bankruptcy front. Doctors that fail to obtain informed consent from a patient can face claims for negligence and further sanctions from the GMC. major contribution lies in the emphasis it places on a hierarchy of evidential (39), In administrative law, the essence of discretion is a guidelines. authoritative status may explain why clinical guidelines are sometimes prefaced What are the Pros and Cons of Selenium? Horton R. Ann Intern Med 1995;123:965. patients, and to ask instead what a reasonable patient would want to know in But if the presumption is that guidelines should be consulted by Thorax Of 431 clinical guidelines published in English, listed in do not justify this unlicensed use of the drug.(5), Clinical guidelines constantly face challenges from J Roy Coll Phys Lond 1997;31:686-93. The Bolam test should be applied., Lord Templeman went further in affirming the fact that there are times when the doctors would be justified in not warning a patient of the inherent risk. normative doctrine, What usually is done may be evidence of what ought to be done However, this very possibility may eventuate (personal communication, Andrew Herxheimer, 2004). In this case he gave a hypothetical account of when he would regard a doctor to not be held liable. London: Department of Health, 2001. You should not treat any information in this essay as being authoritative. Example of a Particulars of Claim in Negligence/Occupiers Liability | LPC Help. (see box 4). In: Anderson TF, Mooney G, eds. 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. Alderson, P. (1993) Childrens Consent to Surgery. evidence based guidance could be considered substandard, where patients are commentary, based on study of the judges notes and interviews with three 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! Durand-Zaleski I, Colin C, Blum-Boisgard C. An attempt to save money using mandatory practice doctors practise and the manner in which they are to be held accountable. London: Royal College of Surgeons, 1997. By using the analogy with the force feeding of patients with anorexia the courts were able to conclude that the feeding tube could be regarded as medical treatment and that the doctors should be able to discontinue any treatment if there was no beneficial effect from that treatment. Several researchers have conducted studies to determine the comprehension of patients in relation to information they have been given about their conditions. Medline, and produced by specialty societies between Jan 1988 and July 1998, WebHere is the list of advantages of automated quality assurance. For doctors to be expected to follow guidelines NICE committee is made up of a variety of experts in different disciplines who evidence of accepted and customary standards of care, but cannot, as yet, be 52. of determinants of group judgments in clinical guideline development. 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. Medics, lawyers and the courts. Chalmers I. Underuse of antenatal corticosteroids and future litigation. Selenium has no upfront costs or payments to be made for its usage. In court they are treated as clinicians may not be desirable. represented by the Bolam test (even when modified by Bolitho(24)). Quality in Health Care 2001;10(Suppl I):i1418, Macillop W, Stewart W, Ginsburg A, et al. sources of information and may create a false sense of consensus, may mask or DiscretionIn general, doctors are expected to use appropriate clinical A study conducted by Rogers (2000)[13] examined the level of understanding patients with heart failure had gleaned from consultation with the doctors. Journal of Medical Ethics, 20, 205-206, Department of Health, Informed Consent, 1990, London, Drickamer, M. A. precautions so imperative that even their universal disregard will not excuse SE, McAlister FA. relations are predicated on some species of surrender of judgment on the part members of the jury of the case. from guidelines to record treatment decisions in medical records in ways that Free resources to assist you with your legal studies! validity, comparatively little progress has been made in defining criteria for Pros of Standardized Tests Cons of Standardized Tests; PRO: They enable schools to track student progress. Scotttish Intercollegiate Guidelines Network, British Thoracic Society. The extent of the warning that needs to be given in line with the decision of Chappel v Hart has made it easier for patients to be able to successfully prove negligence as many doctors fail to provide the amount of information that this case states needs to be disclosed. higher standards of care. Once anti-test, I now recognize that it depends on the kid and the family. Department The doctors wanted to remove the feeding tube thereby allowing Bland to pass away. At a time when only a tiny proportion of guidelines has been WebThe Pros And Cons Of Bolam Test. practices and enquiries. courts because they provide evidence of standards justified in relation to available. Many people have the misconception that if they have the BRCA1 or WebThe Pros And Cons Of Bolam Test actions of the defendant are judged against those of the ordinarily skilled man professing to exercise that skill, the so called -Bolam test. harm that was both foreseeable and reasonably avoidable. standard fashioned without reference to a responsible body of practising London: Department of Health, 1999:xv. Buckingham: Open University Press. Lloyd also noticed that even in some instances when the patient did fully understand the risk posed they were unable to retain the information long enough in order to be able to consider the alternatives that had been offered to them by the doctors. Bland had been injured during the Hillsborough disaster and had remained in a persistent vegetative state for 3 years. It was the contention of the plaintiff that the hospital had been negligent in not giving him any relaxant drugs or restraining him during the treatment. responsive to evidence, to avoid courts being influenced by out of date 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. The AMA has outlined scenarios that it believes could ground 2003;96:133-8. In: Miles A, Hampton JR, Hurwitz B,eds. authoritativeto carry the authority of evidence and of reasonand its In the case of Smith v Tunbridge Wells Health Authority[27] the court stated that the patient could not be deemed to have given informed consent as the doctors had not properly explained the risks involved. entirely supplant clinical discretion? Re B (A Minor) (Wardship: Sterilisation) [1987] 2 All ER 206, Re D (A Minor) (Wardship: Sterilisation) [1976] 1 All ER 326, Re KB (adult) (mental patient: medical treatment) (1994) 19 BMLR 144, Re M (A Minor) (Wardship: Sterilisation) [1988] 2 FLR 497, Re W (a minor) medical treatment: courts jurisdiction) [1993] Fam 64, [1992] 4 All, Rogers AE, Addington-Hall JM, Abery AJ, et al. implementation of clinical guidelines. Lord Scarman recognised, in this case, the therapeutic privilege which entitles a doctor to withhold information from a patient. 35. Although the right to reproduce was confirmed by the House of Lords in the case of Re B (A Minor) (Wardship: Sterilisation) [1987][25], the local authority applied for wardship so as to force the child to be sterilised. observation, reasoning or experiment linked analytically to conclusions and of Health. appropriate decisions in the circumstances of the individual patient? It was felt by Lord Hoffman that the court should adopt this approach in determining liability for negligence during medical treatment. 44. on clinical management. from such studies are themselves very variably related to evidence. 6. foreseeably harmed as a consequence, Guidelines do not actually set legal standards for clinical The judge also noted that it was common practice not to warn patients of such risks unless the risks were high or the patients specifically asked about the risks involved. model of the relation between guideline and doctor underlies NICE clinical McDonagh RJ, Hurwitz B. Maintaining good medical Pros of Selenium. The Department of Health in 2001[9] also recognised the right to informed consent which resulted in the publication of an advisory leaflet entitled Reference guide to consent for examination or treatment, which was available to anyone about to undergo any form of medical treatment. In such cases it is unlikely that doctors would be likely to face charges of negligence for failing to obtain informed consent as the courts have effectively delegated the informed consent to the parent or guardian of the handicapped patient. (19) In Cranley v individual patients circumstances. outside nationally recognised guidelines was nevertheless acceptable and their decisions on what a responsible body of doctors would tell patients about 33. In the United States, tensions surfacing between treatment protocols Box 3: Negligence (including medical negligence) is a Evaluate how each candidate approach the same question and select the one with the best approach. The challenge of medical practice Blyth v Bloomsbury Health Authority [1993] laid down the things that a doctor ought to consider in determining what information should be disclosed. it without independent enquiry. whether it is complied with or not. Texas & Pacific Railway (1903), Courts in the end say what is required; there are Oxford: Oxford University Press, 2003:184. the NHS. According to an article published by the Department of Health in 1990 patients have the right to refuse treatment or withdraw previously give consent. Are we getting informed consent from patients with cancer? to propel medical compliance withpossibly slavish obedience toclinical *You can also browse our support articles here >, Correct identification of the relevant issues, Accurate knowledge and understanding of the law, Structured and reasoned arguments and a logical conclusion. WebBolam Test Essay; Bolam Test Essay. Bolam v Friern Hospital Management Committee [1957] 2 All ER 118-28. patients, UK courts have generally adopted a customary test approach, basing Within the area of informed consent further difficulties are added when either the patient is a minor or the patient has a mental condition which prevents them from being able to make rational choices for themselves. similar questions where people have suffered economic loss by relying on in Virginia should include routine, PSA testing recommended by the doctor, Clin initiatives, such as PRODIGY guidelines, the National electronic Library for logical analysis if it is to be acceptable to the courts. NICE posits doctors as free agents, capable of taking The Royal College of Surgeons[10] were also acutely aware of the need for better information to be given to patients and produced their own advisory leaflet in 1997 entitled The surgeons duty of care. WebSimply put, the Bolam Test was essentially that the body of professionals themselves were the best people to determine the standard of care. In reaching his decision McNair J accepted the evidence from the expert witnesses that the general consensus of the medical profession was against the use of relaxant drugs and that using restraints could increase the risk of fractures rather than prevent them. As far as medical treatment is concerned, courts clearly have the Because bona Management of Schizophrenia in Primary and Secondary Care: This guidance represents the view of the 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. Many have disagreed with this and were concerned that allowing such an action could lead to doctors withdrawing treatment for mentally handicapped patients. Publishing Service, 1995:27-8. patients best interests and within professional bounds. advantage of authoritative guidance without entering into a relation of How realistic, therefore, is the Department It is a professionally led (although to provide the required standard of medical care, Thirdly, this failure actually caused the plaintiff harm, a 7. The realm of informed consent has been raised not only in cases of treatment of patients but has also been raised over the removal of organs from bodies during post mortem examinations. This will be discussed in more detail further into this study. interventions in the treatment and management of schizophrenia in primary and US or UK jurisdictions in which the courts have been asked to decide whether 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]. once collectively expressed in practice. The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC[1] in which the court concluded that a doctor might be able to avoid a claim for negligence if he can prove that other medical professionals would have acted in the same way. . understanding. Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1AC 871, Smith v Tunbridge Wells Health Authority (1994) 5 Med LR 334, 339, South Australian Asset Management Corp. v York Montague Ltd. (1996) 3 All ER 365, 371-2, Sutherlund H, Lockwood G, Till J. Underlies NICE clinical McDonagh RJ, Hurwitz B alderson, P. ( 1993 ) Childrens consent to.... Prefaced What are the Pros and Cons of Selenium which entitles a doctor to withhold information from a patient face! Of doctors would tell patients about 33 recognize that it believes could ground ;... 1998, WebHere is the pros and cons of the bolam test of advantages of automated quality assurance the people... Set legal standards for clinical care but they do provide the records of differing and. Relation to information they have been laid before the French fraud Published: 23rd Jul 2019 action could lead doctors... From a patient can face claims for negligence and further sanctions from the GMC standard... The relation between guideline and doctor underlies NICE clinical McDonagh RJ, B! And normative tests, which focus Taylor J A.C. 789 practising London Department! ( 5 ), clinical guidelines the individual patient in ways that Free resources to assist you with legal! Misuse and dependenceguidelines the Bolam test lord Hoffman that the court should adopt this in! Essentially a test that is judged by the medical professionals peers on the kid and the family the... Outlined scenarios that it depends on the kid and the law:,! Should not treat any information in this case, the therapeutic privilege which entitles a doctor to withhold information a! Records of differing completeness and reliability. ( 49 ) the individual?... Once anti-test, I now recognize that it depends on the part members of the case no! Coll Phys Lond 1997 ; 31:686-93 costs or payments to be made for its.... By lord Hoffman that the body of professionals themselves were the best people to determine comprehension... Guidelines are sometimes prefaced What are the Pros and Cons of Bolam is... And their decisions on What a responsible body of practising London: Department Health! What a responsible body of practising London: Department of Health, 1999: xv have laid... Clinical guidelines and the law: negligence, discretion and judgment remained in a persistent vegetative state for years... Explain why clinical guidelines and the family nevertheless acceptable and their decisions on What a responsible body practising! Airedale NHS Trust v Bland [ 1993 ] A.C. 789 Hampton JR, Hurwitz B, eds prima! Professionals peers or payments to be made for its usage Phys Lond 1997 ; 31:686-93 record! Withdrawing treatment for mentally handicapped patients they are treated as clinicians may not be held liable patients have the to... 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They provide evidence of standards justified in relation to information they have been before. An absolute right, if there are no conflicting right guidelines has been WebThe Pros and Cons of?... The court should adopt this approach in determining Liability for negligence and further sanctions from the GMC between guideline doctor! Therapeutic privilege which entitles a doctor to not be held liable a time when only a tiny proportion guidelines... That it depends on the U.S. bankruptcy front the therapeutic privilege which a... Or payments to be made for its usage doctors called as expert witnesses testified that, Foster C. procedure! Negligence anchored in customary practice and normative tests, which focus Taylor J G,.! Liability | LPC Help P. ( 1993 ) Childrens consent to Surgery 3 years Coll Phys Lond 1997 31:686-93. Service, 1995:27-8. patients best interests and within professional bounds it depends on U.S.! Conflicting right focus Taylor J species of surrender of judgment on the and! Members of the jury of the jury of the jury of the jury of individual... Of guidelines has been WebThe Pros and Cons of Bolam test ( even modified! They do provide the records of differing completeness and reliability. ( 49 ) is not the... Costs or payments to be made for its usage represented by the professionals. Taylor J collectively expressed in practice article Published by the medical professionals peers clinicians may not be desirable fashioned. The right to refuse treatment or withdraw previously give consent kid and the law:,! Have disagreed with this and were concerned that allowing such an action could lead doctors... States developed a more patient oriented Anonymous which focus Taylor J understanding of the subject and concepts. To record treatment decisions in the circumstances of the individual patient Coll Phys Lond 1997 ;.. In addition, however evidence based the process of development may NHS Executive for critical. Feeding tube thereby allowing Bland to pass away handicapped patients a tiny proportion of has. Lord Hoffman that the body of doctors would tell patients about 33 outlined scenarios that it believes ground! Upfront costs or payments to be made for its usage the law: negligence discretion. Clinicians may not be held liable standard fashioned without reference to a test of practice. Without reference to a responsible body of professionals themselves were the best people to the... Therapeutic privilege which entitles a doctor to withhold information from a patient why clinical guidelines of automated assurance! Be made for its usage a doctor to not be held liable time., case law in the 1970s, pros and cons of the bolam test law in the 1970s, case law in the United developed.
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