Bolam v Friern Hospital Management Committee
Bolam v Friern Hospital Management Committee  1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. This rule is known as the Bolam test, and states that if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent. "Bolam" was rejected in the 2015 Supreme Court decision of "Montgomery v Lanarkshire Health Board" in matters of informed consent. Facts. Mr Bolam was a voluntary patient  at Friern Hospital, a mental health institution run by the Friern Hospital Management Committee. He agreed to undergo electro-convulsive therapy. He was not given any muscle relaxant, and his body was not restrained during the procedure. He flailed about violently before the procedure was stopped, and he suffered some serious injuries, including fractures of the acetabula. He sued the committee for compensation. He argued they were negligent for: At this time, juries were still being used for tort cases in England and Wales, so the judge's role would be to sum up the law and then leave it  for the jury to hold the defendant liable or not. Judgment. McNair J at the first instance noted that expert witnesses had confirmed, much medical opinion was opposed to the use of relaxant drugs, and that manual restraints could sometimes increase the risk of fracture. Moreover, it was the common practice of the profession to not warn patients of the risk of treatment (when it is small) unless they are asked. He held that what was common practice in a particular profession was highly relevant to the standard of care required. A person falls below the appropriate standard, and is  negligent, if he fails to do what a reasonable person would in the circumstances. But when a person professes to have professional skills, as doctors do, the standard of care must be higher. "It is just a question of expression", said McNair J. "I myself would prefer to put it this way, that he 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. I do not think there is much difference in sense. It is just a different way of  expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: “I do not believe in anaesthetics. I do not believe in antiseptics . I am going to continue to do my surgery in the way it was done in the eighteenth century.” That clearly would be wrong." In this case, the jury delivered a verdict in favour of the defendant hospital. Given the general medical opinions about what was acceptable electro-shock practice, they had not been negligent in the way they carried out the treatment. That passage is quoted very frequently, and has served as the basic rule for professional negligence over the last fifty years. Significance. "Bolam" was re-examined and revised in the 2015 Supreme Court decision of "Montgomery v  Lanarkshire Health Board". The law distinguishes between liability flowing from acts and omissions, and liability flowing from misstatements. The "Bolam" principle addresses the first element and may be formulated as a rule that a doctor, nurse or other health professional is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners adopt a different practice. In addition, "Hedley Byrne & Co. Ltd. v Heller & Partners Ltd."  AC 465 created the rule of "reasonable reliance" by the claimant on the professional  judgment of the defendant. "Where a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, and a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise." Because of the nature of the relationship between a medical practitioner and a patient, it is reasonable for the patient to rely on the advice given  by the practitioner. Thus, "Bolam" applies to all the acts and omissions constituting diagnosis and consequential treatment, and "Hedley Byrne" applies to all advisory activities involving the communication of diagnosis and prognosis, giving of advice on both therapeutic and non-therapeutic options for treatment, and disclosure of relevant information to obtain informed consent. Misfeasance. Where it can be shown that the decision-maker was not merely negligent, but acted with "malice", the tort of "misfeasance in public office" may give rise to a remedy. An example might be a prison doctor refusing to treat a prisoner because he or she  had previously been difficult or abusive. Although proof of spite or ill-will may make a decision-maker's act unlawful, actual malice in the sense of an act intended to do harm to a particular individual, is not necessary. It will be enough that the decision-maker knew that he or she was acting unlawfully and that this would cause injury to some person, or was recklessly indifferent to that result.