The Bolam Test

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For a court to determine that negligence has occurred, there are four requirements that must be proven. A duty of care must be owed, next, a breach of that duty of care has occurred through the defendant’s actions, this breach of duty has caused damage to the claimant and the damage caused was not too remote.
The original test for whether a duty of care has been breached was famously set out in the case of Bolam , which involved, a plaintiff, who was suffering from a mental illness and being treated with electroconvulsive therapy. The treatment was known to induce convulsions or fits. The hospital failed to warn the patient of the risk of bone fracture associated with the treatment and did not provide the patient with anything to minimise the risk of harm during the treatment. In his judgement, McNair J set out the test which states that “a doctor will not be guilty of negligence if ‘he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’.
The Bolam test undoubtedly advanced and furthered paternalism. James Badenoch QC stated the full application of the test, “disqualifies the judge from performing that ordinary judicial function in respect of alleged medical negligence and effectively
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Instead, he took a much more robust approach. Which was that “if the courts remain unwilling to disregard expert opinion altogether...then a reasoned explanation must justify the decision.” Secondly, “the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuine of opinion that the defendant’s treatment accorded with sound medical practice.” This was the first signs of the judiciary shifting away from Bolam, to a more patient centred
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