How good a doctor do you need to be?

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In 1954 John Bolam was a psychiatric patient at the now defunct Friern Hospital, London. To treat his depression the medical team administered electroconvulsive therapy, a relatively new treatment at the time. As they did not give Bolam a relaxant drug before the treatment, nor adequately restrained him during it, he sustained fractures of the pelvis. In his directions to the jury, the judge in a trial of the medical team stated the principle now widely known as the Bolam test: “A doctor is not 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.”1

After retiring for 40 minutes the jury found that the medical team had not been negligent.

The Bolam test applies not only to treatment but also to diagnosis, advice, and the provision of information about risks.

Medical experts commonly disagree, but disagreement is not proof of negligence. The “responsible body of medical men” can be a small group, as long as it is responsible or reasonable. The key question that lawyers ask their medical experts is not, “What would you have done?” but “Would any reasonably competent doctor have acted in this way?” And in that question the relevant time is not now but the time when the act or omission took place. What is negligent today may not have been 10 years ago.

If the doctor is a specialist, then he or she must be judged by the standard of a reasonably competent specialist. The law does not expect excellence, merely competence. And for the junior doctors reading this, the expected standard of skill is that expected from someone holding your post in the hospital. As harsh as it may sound, no distinction is made between foundation year 1 doctors on their first day and those on their last day.2

Doctors are often worried about making mistakes, but an error of judgment may not be negligent, even if it causes harm. The relevant question is, “Did the doctor in reaching this decision display such a lack of clinical judgment that no doctor exercising proper care and skill could have reached the same decision?”3

Since its inception in the 1950s the Bolam test has come under fire from scholars. With the rise in patients’ rights, some people have considered the test too deferential to the medical profession, too tolerant of views at the fringes of accepted practice, and too vague in its definition of a “responsible body” of medical opinion.

In Bolitho v City and Hackney Health Authority in 1998 the House of Lords modified the Bolam test.4 The court held that, in rare cases, a defendant will be found negligent even if a body of professional opinion supports the practice. When? If it can be “demonstrated that the professional opinion is not capable of withstanding logical analysis.” The law adapted to the ethical climate by putting medical opinion under legal scrutiny.

The former lord chief justice of England and Wales Harry Woolf wrote in an article in 2001 that the expression “doctor knows best” should now be followed by the phrase “if he acts reasonably and logically and gets his facts right.”5

When I sat on a clinical ethics committee a few years ago we received occasional requests from clinicians who wanted to try novel procedures on desperately sick patients. I remember observing one operation in which the trauma surgeon, seeing that the patient was haemorrhaging uncontrollably, attempted a rare procedure he had read about in a case report the previous month. In such cases the issue is whether the clinician acted reasonably in the circumstances. In Hepworth v Kerr in 1995 an anaesthetist deliberately reduced a patient’s blood pressure to provide the surgeon with a blood-free operating field.6 As a result the patient developed anterior spinal artery syndrome. The court held that the anaesthetist was negligent in exposing the patient to an unnecessary and foreseeable risk of major organ underperfusion.

In Waters v West Sussex Health Authority in 1995, however, a neurosurgeon who used a novel approach to correct a prolapsed thoracic disc was not found negligent, despite the patient’s subsequent paraplegia.7 The surgeon had encountered a problem with the standard method and decided to alter his drilling angle, performing a laminectomy to relieve some pressure on the spinal cord. The court found that the surgeon did nothing that unreasonably increased the risk to the patient or that was contrary to reasonable professional opinion.

A solicitor once told me that he enjoyed clinical negligence because there were only three cases to remember and all of them started with the letter B. Two of those were Bolam and Bolitho. The third, Bailey, concerns the causation of harm.