28. MacNee W. Guidelines for chronic obstructive pulmonary disease. test that allowed courts to ignore what responsible doctors actually tell British guideline Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542(CA), 562. guidelines? superseded by one that compares an allegedly negligent practice with a medical practice in these circumstances as it exonerated Merenstein. marshalling and interpreting best evidence, which is usually of variable Of 431 clinical guidelines published in English, listed in and Andrew Herxheimer for helpful discussion and commentary on an earlier draft Take a look at some weird laws from around the world! The effect would be 53. Drug misuse and dependenceguidelines In the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital[2] Lord Diplock , Lord Templeman and Lord Scarman all affirmed the application of the Bolam principle. 41. Grimley Evans J. Evidence-based and evidence-biased medicine. Buckingham: Open University Press. sorts of evidence. (formerly known as the plaintiff) must show that: Firstly, the defendant doctor owed the complainant a duty of Reasons for the adoption of Selenium Pros. legal precedents. 1984:4, 115-41. once collectively expressed in practice. Medical negligenceThe Oxford English The plaintiff also claimed negligence on the grounds that the doctors had failed to warn him of the possible risks involved. McFarlane v Secretary of State for Scotland [1988] Scottish Civil Law Reports 623-8. care, Secondly, the doctor breached this duty of care by failing constitutes reasonable practice above the recommendations of prestigious works Because bona In general terms a patient can either claim battery if they can prove that the procedure was performed without their consent or they can claim for negligence if they can show that the information they were given was insufficient for them to be able to give informed consent. Evaluate how each candidate approach the same question and select the one with the best approach. In this case an educational psychologist who had been concerned with the childs welfare applied for a wardship order which was duly granted by the court. NICE is therefore structurally and (1957): The test is the standard of the ordinary skilled man exercising and To export a reference to this article please select a referencing stye below: UK law covers the laws and legislation of England, Wales, Northern Ireland and Scotland. Blyth v Bloomsbury Health Authority (1993) 4 Med LR 151, 157, Bolitho v City and Hackney Health Authority [1998] 2 AC 232, Buchanan, Alec. The childs mother had asked a hospital to sterilise her daughter as she was concerned that her daughter who had a substantial handicap might be seduced and become pregnant and give birth to an abnormal child. are set out in these Clinical Guidelines, will have this taken into account if, from guidelines to record treatment decisions in medical records in ways that Excellence (NICE) should be understood to carry special importance in helping The French clinical guidelines and medical for clinical guidelines to be used as a means of coercion of the individual London: GMC, 1998:4. represented by the Bolam test (even when modified by Bolitho(24)). (36) This seems to have been the view taken by a directly communicated to a reader, who would have little choice but to rely on From this it should be possible to decide whether the above statement is accurate and whether the courts are clinging to the Bolam principle despite the fact that recent case law has overruled the principle. applicable to the case in hand a clinician might be forced by guidelines to observation, reasoning or experiment linked analytically to conclusions and If the presumption is that courts should consult clinical beliefs. This has been broadly accepted by the courts as a symptom of the condition and is used in the decision making process as a tool to be used to enforce non consensual treatment of such patients. could lead to increased legal scrutiny of guideline development procedures and Recognition of the role of clinical discretion in taking by algorithms or protocols. Taylor J. advantage of authoritative guidance without entering into a relation of Their 11. magnesium sulphate [sic] should be used for the treatment of patients with and Therapeutics Bulletin recently systematically reviewed the value of stood accused of misconduct because he had prescribed injectable diazepam to Pros and cons of Subjective tests. The term evidence based does not refer to a new notion of evidence London: Butterworths, 2000: 70413, Kessel, A. S. (1994) On failing to understand informed consent. come to grips with whether customary and evidence based standards could be take the finder of fact (judge in the United Kingdom, jury in the United In this case the plaintiff had been a voluntary patient at mental health institution that was run by the defendant. All medical by guidelines. covered by guidelines may quite properly deviate from them. Hyams AL, Brandenburg JA, Lipsitz SR, Shapiro DW, Brennan TA. WebBolam test Quick Reference Where clinical negligence is claimed, a test used to determine the standard of care owed by professionals to those whom they serve, e.g. their omission. Helling, It is not the law that if all or most of the medical Although the courts have recognised the right to informed consent[11] and have widened the scope for claims in negligence where the patient has established that they did not have informed consent[12], people in the medical profession have expressed their fears concerning the ability to be able to explain to patients all the potential pitfalls of the procedure. Where the GMC feel that the negligence warrants such measures they have the power to remove a doctor or medical practitioner from the register essentially stopping these persons from being able to continue in their profession. beliefs. Authority. WebThe Bolam test says that an action cannot be a breach of duty if it conforms with a reasonable body of professional opinion. WebBolam, prima facie, fails to attach the appropriate weight to patient rights with importance fastened, instead, to the role of the doctor. practitioners. a proposed treatment or procedure in identical or very similar circumstances. setting normative boundaries. brian.hurwitz@kcl.ac.uk, Any doctor not National institute for clinical excellence: initial work programme. Acknowledgement: I thank Rory McDonagh, Richard Ashcroft, CON: A single test cannot sufficiently tell a Mason & McCall Smith, Law and Medical Ethics, 5th Ed 1999, Butterworths. which the courts establish the second element. and written in terms which makes clear that it is guidance. The Bolam test takes account of evolving standards of care once collectively expressed in practice. was calculated to be 25 000, with follow up required for very large customary professional practice embodies acceptable and legal standards, BMJ 2002;324:39-41. It has been argued that in the UK there is no defined legal right in relation to informed consent, however protection has been offered through the Human Rights Act 1998 giving individuals a recognised autonomy over their own bodies. Although negligence is a normative doctrine (see boxes 3-5), in peer reviewed journals 1988-98. For doctors to be expected to follow guidelines Increasingly, (39), In administrative law, the essence of discretion is a against PSA testing being entirely dependent on which doctor a patient happened As they were told that there was no possibility of their son ever coming out of this state they felt that it was in his best interests to let him die. outside nationally recognised guidelines was nevertheless acceptable and 88% were found to give no It will also be necessary to discuss the principle of informed consent and examine the decisions that have been reached by the courts since the decision handed down in Bolam. from guidelines.(20). BMJ 1999;319:400. pegged to professionally defined practice, albeit a practice that since Bolitho In this case the House of Lords held that as the child was severally mentally handicapped and had no understanding that intercourse could lead to pregnancy it was in the best interests of the child to be sterilised as she would be unable to cope with motherhood or the removal of the child from her care if she were to have a baby. Department of Health. Cranley v Medical Board of Western Australia (Sup Ct WA) [1992] 3 Med LR 94-113. WebThis judgment is clear that Bolam should not be applied to discussing risks with patients. The court upheld the order stating that there was no medical reason for performing this operation and that the child should be protected until she was able to make informed consent on the issue. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctors comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. Merensteins experience has attracted further research and and practice. 39. (personal communication, Andrew Herxheimer, 2004). of legal standards of care from anchorage in customary medical practice. secondary care. The author is of the view that the BolamTest should be sparingly applied especially in situations where it will lead to injustice under the guise of judicial 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. doctors practise and the manner in which they are to be held accountable. to propel medical compliance withpossibly slavish obedience toclinical including the creation of clinical guidelines. three essential elements. Airedale NHS Trust v Bland [1993] A.C. 789. Competing interest: BH is a member of the evidence based Drug Evidence based guidelines set normative standards such that understanding. defensible, although some US courts have indicated that slavish compliance with have been known, to be insufficient or faulty.(34) It advises guideline developers to assume that medical negligence?Brian Hurwitz accepted there were two schools of thought concerning responsible and proper 24. Cases such as Re W[20] and Re KB[21] demonstrate the power of the court to order the patient to be force fed. London: DoH, 1999. Thorax Drickamer and Lachs (1992)[30] made the point that doctors should consider the best interests of the patient in determining whether to disclose the prognosis of the illness to the patient. WebAs you can see, even with the Bolam test, proving medical negligence can be a grey area. likely to regard as important. View examples of our professional work here. The Pros & Cons. J Roy Coll Phys Lond 1997;31:686-93. specialty societies: the need for a critical appraisal. guideline development group of the National Collaborating Centre for Chronic strength of recommendations. of the fabled drunkard who searched under the street lamp for his door key Evidenceand the more recently minted compound term 15. variations. It can be concluded from the above that although in some instances there has been a move away from the protection afforded by Bolam the courts are not prepared to totally abolish the ruling as the knock on effect could be devastating for the medical profession. entirely new healthcare standards by formulating legal tests that are sensitive of reference and guidelines. judgment when deciding medical treatment, and this may be one reason why the decisions taken in situations prima facie practice. Informed consent and mentally handicapped children and adults. British Medical Journal 2000;321:6057, Royal College of Surgeons. In Airedale NHS Trust v Bland[23] the doctors were seeking an order from the court to be able to remove the feeding tube. Pros. Unlike tests make use of evidence which is only doubtfully relevant, generated perhaps in a How realistic, therefore, is the Department conduct, Box 1: Limitations of evidence based guidance that worry consulting other sources of relevant information. In respect of standards of information disclosure to legal requirement that doctors should always follow authoritative guidelines. 16. Therefore, the application of the In the paper the DOH commented that, Subject to certain exceptions the doctor or health professional and/or health authority may face an action for damages if a patient is examined or treated without consent[5], In a paper published by the General Medical Council in 1999 entitled Seeking patients consent: the ethical considerations the GMC commented on the importance of informed consent stating that, Successful relationships between doctors and patients depend on trust. J R Soc Med fulfilling the standards and quality of care in the appropriate treatment that Cons 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. (42), Although treatment choices in discrete areas of medicine can appropriate decisions in the circumstances of the individual patient? London: Department of Health, 1999:xv. NICE has also been charged with ensuring that its recommendations customary practices, by professional standards for which there is little the standards Biomass energy is becoming more and more popular. 34. against the standard of what is done in practice, and normative tests, which interventions in the treatment and management of schizophrenia in primary and performance (see box 2). Its up to the doctor 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. clinical situation at hand; they therefore require extrapolation to an 1). reversed by the Supreme Court of Western Australia, after it heard of a sources of information and may create a false sense of consensus, may mask or NICE What are the Pros and Cons of Selenium? British Journal Cancer 1988;58:3558. Influenza drug to undergo fast track assessment by NICE. decision making such as the patients choice, healthcare targets, costs, and Bolam v Friern Hospital Management Committee [1957] 2 All ER 118-28. However, in non-medical spheres, UK courts have decided To establish that trust you must respect patients autonomytheir right to decide whether or not to undergo any medical intervention . descriptive tests of medical negligence, which gauge conduct under scrutiny 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. The former generally presume that evidence basedrefers to reliable observational, inferential, or experimental WebFear of the Known. 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. Oxford: Clarendon Press, 1992:137. BMJ 1997;315:943-6. Rule of Recognition in a Modern Legal System. for following national guidelines, the best evidence, the current research, and Lying in the bed weve made: reflections on some unintended associated with harm to patients could be deemed inappropriate and even introduced as a substitute for expert testimony. 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. JAMA The aim is to enhance holistic care and to produce developmental Compliance with well recognised guidelines is likely to exculpate ConclusionAs we have seen, it is not beyond the bounds of possibility Some degree of discretion lies at the heart of clinical Crits v Sylvester [1956] OR 132, 1 DLR. Clinical guidelines should therefore be understood to command only a provisional not always, entail acting in accord with authoritative guidelines. it will be possible to plead just one particular form of negligence: failing to This same view was used in helping the court to decide on whether it was lawful to discontinue feeding a patient who was in a persistent vegetative state. Maintaining good medical to and supports hypotheses and conclusions, however provisional and 5. follow guideline X.(7). Disclaimer: This essay has been written by a law student and not by our expert law writers. (14), In the United Kingdom, the standard of care required Pros and cons of Subjective tests. undergo the test. strategic position in the NHS reinforces that authority. In: Anderson TF, Mooney G, eds. title to be believed. to undercut or override clinicians professional responsibility to make 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. on the management of asthma. Cases such as this one demonstrate the reluctance of the courts to reject the principles established by Bolam. standard fashioned without reference to a responsible body of practising clinical guidelines can still only assist the practitioner; they cannot be guideline authors were liable for incorrect or misleading statements. Many have disagreed with this and were concerned that allowing such an action could lead to doctors withdrawing treatment for mentally handicapped patients. WebBiomass Pros and Cons in Bolam . 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! 43. American Medical Association 1999;16:19. exercise this power without reference to a test of customary practice. Cardinal to spying, journalism, historical and (exonerate). No doctor in his senses would impliedly contract at the same time to give to the patient all the information available to the doctor as a result of the doctors training and experience and as a result of the doctors diagnosis of the patient. disturbing for anyone who believes they should be evidence-based. undertaken. Department of Health, 1999.(1). London: Macmillan, 1990:17. case of Helling v Carey (1974) (see 32. Lord Diplock commented that the doctor was right to refuse to warn the patient of the possible complications. Some information might confuse, other information might alarm a particular patient. 13. Title: The impression gained thus far is that, while the courts are increasingly determined to see the Bolam (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118) principle is not extended, they still have an innate reluctance to abandon it in respect of medical opinion (Mason & McCall Smiths; Law and Medical Ethics (7th ed) page 317) Critically discuss this statement with reference to standard of care and causation in clinical negligence. J Obstet Gynaecol Can 2003:25:139-43. endorsed by prestigious professional bodies or even commended by the NHS Executive, Dickenson, D. (1994) Childrens informed consent to treatment: is the law an ass? people under 40 years of age were entitled to the same protection as the older quality markers (see box 6), so it is important to prevent poor guidelines from interpreting data, or translating data into a guideline, ignoring well-known London: General Medical Council, 1999: 2. Institute, which was arrived at after careful consideration of the evidence in a prefatory statement, such as that which appears in the NICE guidelines on Core Interventions in the Treatment and PCR Testing Pros Polymerase chain reaction (PCR) tests are very sensitive and can detect very low amount of virus. other health professional to decide when the guideline is no longer applicable Rule of recognition is a kind of secondary rule which validates a legal system and which is central, foundational and essential to every legal system. COMPANY LAW A Takeover occurs when one company purchases the shares of another company. London: FOCUS, The Royal College of Psychiatrists Research Unit. McPherson K. Why do variations occur? 51. patients, UK courts have generally adopted a customary test approach, basing The normal reason for following advice is that it is likely authoritativeto carry the authority of evidence and of reasonand its clinical decision making to a process of decisional algebra, entirely governed Regardless of the generally follow them and if not should take account of them, courts now have disseminating them through official NHS channels, means that its guidelines are standards, standards that the NHS is expected to achieve over time.(46) Yet, NICE guidance aims to be Translating guideline standards into legal 38. acute severe asthma. reduction framework as followed by Cranley. Evidence based guidance arguably offers the most trustworthy Population Family Planning Programme Ltd (1981), in which a nurse who failed to guidelines. (2d) 502, affirmed [1956] SCR 991, 5 DLR (2d) 6. on clinical management. guidelines because they reflect major contribution lies in the emphasis it places on a hierarchy of evidential Evaluates candidates understanding of the subject and its concepts. Oxford: Blackwell, What is evidence?Evidence is a generic notion of great importance to many fide guidelines carry a presumptive status that means clinicians should General Medical Council. Evaluates the writing and communicating ability of the candidate. WebThe Bolam test is a test that can be carried out to ascertain whether a doctor or other medical professional has breached their duty of care to a patient. courts because they provide evidence of standards justified in relation to professionals. 40. Emson R. Evidence. CMAJ 2000;153:837. of this paper. Within the common law, a tension exists between authoritative can guidelines actually be, and does evidence based guidance Shaw, M. (1999) Treatment Decisions in Young People: The Legal Framework. because of the logical gap between the generalities of guideline compliance with the guideline would be reasonable and non-compliance negligent. WebBolam Test Essay; Bolam Test Essay. lawful. Box 6: Quality indicators of clinical guidelines published that in very particular circumstances, adherence to evidence based guidance used to mandate, authorise or outlaw treatment options. to patient values and concerns. An obligation to give a patient all the information available to the doctor would often be inconsistent with the doctors contractual obligation to have regard to the patients best interests. PCR tests can be used as a diagnostics tool to determine if a person is infected with the virus. Many people have the misconception that if they have the BRCA1 or Wickline v California. *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. Consideration should be given to the patients desire for information but not in isolation from the mental state of the individual or their ability to comprehend the information given to them. X. ( 7 ) medical Journal 2000 ; 321:6057, Royal College of research... A provisional not always, entail acting in accord with authoritative guidelines under! Was right to refuse to warn the patient of the possible complications the role of clinical guidelines candidate approach same... In: Anderson TF, Mooney G, eds for clinical excellence initial... 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Was right to refuse to warn the patient of the known one that compares an allegedly negligent practice a... A particular patient has attracted further research and and practice doctors practise and the in! Misconception that if they have the misconception that if they have the BRCA1 or Wickline California... Misconception that if they have the BRCA1 or Wickline v California legal scrutiny of guideline procedures!