Bolam out?

Does the Chief Medical Officer’s report into clinical negligence in the NHS signal the end of the Bolam test? Nicholas Wilkes discusses the merits of the old method as against new plans

On 30 June 2003, Chief Medical Officer Sir Liam Donaldson (main picture) published his long-awaited consultation paper, entitled ’Making Amends’. Commissioned because of concerns about shortcomings in the existing system, such as increased cost, complexity and delay, it set out proposals for reforming the approach to clinical negligence claims in the NHS.

It is nearly 50 years since Mr Justice McNair, in Bolam v Friern Hospital Management Committee, set out the test for negligence in a medical claim when directing the jury. He said: “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… Putting it the other way around, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes the contrary view.”

The House of Lords has endorsed this test, known as the Bolam test, on more than one occasion: in Whitehouse v Jordan the principle was applied to treatment; in Maynard v West Midlands Regional Health Authority to diagnosis; and in Sidaway v Bethlem Royal Hospital Governors to disclosure of information about risks.

Since these decisions in the 1980s the test has been unassailable. To all intents and purposes the medical profession set the standard of care and determined when that standard was breached. In Bolitho v City and Hackney HA the House of Lords indicated that it was not enough to simply rely on medical opinion, but that the opinion itself must have a “logical basis”. The court had to be satisfied that the experts had reached a “defensible conclusion”. Lord Justice Browne-Wilkinson said further: “If, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible”.

Commentators at the time claimed that Bolitho represented a “gloss” on the Bolam test. In reality, it simply highlighted the principle that, ultimately, it is for the court and not the medical profession to decide what is ’reasonable’ practice.

Some anticipated that the Human Rights Act 1998, which came into effect on 2 October 2000, might be a means of challenging the Bolam test. The right to life protected by Article 2 includes the right to be protected from the risk of death. Philip Havers QC suggested that Article 2 was inconsistent with the Bolam test unless domestic courts were to construe the requirement to make “adequate” provision for medical care (Article 2) as meaning the same as taking “reasonable” care (Bolam), which, in his opinion, was unlikely. It was suggested that the Bolam test and even the issue of negligence generally could become irrelevant, because the state would have a duty to make adequate provision for medical care, regardless of cost and reasonableness, where the patient’s life could be at risk.

The then Lord Chancellor Lord Irvine said: “I think there is a movement towards recognition of circumstances in which practices considered appropriate by a body of doctors may not always be the benchmark by which their actions must be judged. And if incorporation of the European Convention of Human Rights encourages the courts to focus more on the patient’s rights, this may

prove not entirely comparable with what doctors have traditionally seen as their duties, and suggest an approach closer to that of the other Commonwealth courts.” In practice, the Bolam test appears to have survived the Human Rights Act unscathed.

In some jurisdictions a ’no fault’ scheme has been introduced across the board. In the Chief Medical Officer’s report, the option of a ’no fault’ scheme for clinical negligence was specifically considered and rejected because: it would potentially lead to a huge increase in claims and costs; compensation would have to be set at a lower level and the patient’s needs would not necessarily be met; it would be difficult to distinguish harm to a patient from the natural progression of a disease; ’no fault’ schemes do not improve processes for learning from error and reducing harm to patients.

The Chief Medical Officer went on to make a number of recommendations for reform. So what impact, if any, do these proposals have on the Bolam test?

Recommendation one

An NHS redress scheme should be introduced to investigate when things go wrong and provide remedial treatment, rehabilitation, care, explanation, apologies and financial compensation where appropriate. The patient will have to show that there have been ’serious shortcomings’ in the standard of care, that the harm could have been avoided and that the adverse outcome was not the result of the natural progression of the illness. The financial element of the compensation will be limited to £30,000.

In the report, it is not clear what is meant by the term “serious shortcomings”. It is proposed that the scheme will be piloted and assessed with a view to framing the detail of new, primary legislation. The cases in the pilot will be assessed on the existing Bolam test, but each case will also be assessed against alternative tests by a medico-legal panel. These alternative tests are not defined in the report. The pilot will help gauge the impact of a lower qualifying threshold of ’substandard care’ on the number of successful claims and their costs, and the test will then be defined.

Recommendation two

The NHS redress scheme should provide care and compensation for severely neurologically impaired babies, including those with cerebral palsy. To qualify, there must be a birth under NHS care, severe neurological impairment relating to or resulting from the birth, and a claim must be made within eight years of birth. Genetic and chromosomal abnormalities are excluded. Redress would consist of a mixture of care, lump sum payments and periodic payments. A national panel of experts would review the severity of impairment and whether or not it was related to or resulted from birth. The perceived wisdom is that, as there is no requirement to establish breach of duty for these cases, this is a ’no fault’ scheme in all but name.

If these recommendations are implemented, clinicalnegligence claimants will face different tests for breach of duty, depending on the circumstances of their case. This will be divisive, confusing and unfair.

Under the redress scheme, for cases up to £30,000 there will be a statutory test of “serious shortcomings”. In redress scheme cases involving brain-damaged babies, there will be no test at all. For all other cases there will be the Bolam test.

A different test will apply to the NHS claimant as opposed to the private claimant and, given that these recommendations currently only apply to England, the Welsh claimant will have a different test to that of the English claimant. Finally, contrast the baby born with brain damage relating to or resulting from birth, with the baby who shortly after birth requires surgery and suffers brain damage caused by hypoxia during anaesthesia. The former is entitled to a ’no fault’ compensation package, the other must satisfy the Bolam test.

Recommendation one appears to envisage that primary legislation will replace the Bolam test with an alternative test for the standard of care in lower-value cases. It is difficult, however, to imagine a test more stringent than the Bolam test, given that by its application a minority body of responsible medical opinion can defeat a claim. Indeed, a doctor will not be negligent unless there is no body of responsible medical opinion to support their actions. The test, therefore, can only be lowered by legislation, and if that were to happen it is difficult to imagine anything other than an increase in successful claims and further cost to the NHS, which would defeat one of the main aims of these recommendations.

On the basis that a ’no fault’ system of general application has been excluded, the inevitable conclusion at this stage must be that the Bolam test for breach of duty in clinical negligence willremain central to these claims for some time to come.

Nicholas Wilkes is a partner at Hay & Kilner and was assisted on this article by associate Clare O’Leary