Not the man on the Clapham omnibus

JOHN Bolam was not an exceptional man – though he did survive two world wars and this no doubt contributed to the circumstances that led to his admission to the Friern psychiatric hospital in 1954.

The car salesman suffered from recurrent debilitating depression and had previously attempted suicide. Other treatments not proving efficacious, he agreed to electroconvulsive therapy (ECT). Common practice at the Friern was not to use muscle relaxants or physical restraints during ECT, although nurses were positioned on both sides of the treatment couch to prevent the patient falling off. In the first treatment Bolam suffered no serious complications but in the second induced seizure he sustained bilateral fractures of the pelvis.

Bolam later filed a suit against the Friern Hospital Management Committee claiming negligence for allowing the treating physician – Dr Allfrey – to carry out the procedure without administering relaxants, using manual restraints or warning him of the risks involved in ECT. It was this case heard in 1957 that would establish a landmark legal precedent in determining what is considered “reasonable” care among professional clinicians.

A claim for clinical negligence can be established when a medical practitioner is found to have breached a duty of care to a patient who in turn suffers injury as a result of that breach. Demonstrating that a doctor has breached the duty of care is the first major hurdle in any negligence case but this is not always clear cut. There is certainly scope for genuine differences of opinion when it comes to diagnosis and treatment.

In the case of Bolam v Friern Hospital Management Committee a number of expert witnesses testified that significant medical opinion was opposed to the use of muscle relaxants and restraints in patients undergoing ECT. Indeed, it was generally believed that restraints could in some cases increase the chance of fracture.

In his advice to the jury (which would not be present in civil cases now) Mr Justice McNair stated: “Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising or professing to have that special skill.”

The jury in the case determined that Dr Allfrey was not negligent and ruled in favour of the hospital. The ruling has since become known as the “Bolam test”, which in McNair’s own words holds that: “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 round, 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 a contrary view.”

John Bolam was left sadly uncompensated for his severe injuries even though Justice McNair himself appeared moved by the plantiff’s “tragic story” and the “hopeless condition he was in” when called to the witness box.

The Bolam test has over the years been modified by a number of legal cases – perhaps most notably by that of Bolitho v City and Hackney Health Authority (1997). The case involved two-year old Patrick Bolitho who was admitted to St Barts Hospital with croup. On the ward the child had two episodes in which he went pale and had trouble breathing. A senior registrar (SR) was notified on both occasions but did not attend. Shortly after the second episode the boy stopped breathing and suffered cardiac arrest leading to severe brain damage and later death.

Patrick’s mother later sued the health authority for clinical negligence claiming that had her son been intubated after the second episode he would have survived. The health authority admitted breach of duty in the SR’s failure to attend the child, but it disputed the claim that this breach led to Patrick’s death as the SR would not have intubated the boy. It was claimed that this decision would have been consistent with a respectable body of medical opinion and thus supported by the Bolam test.

In the case, five medical experts stated that any competent doctor would have intubated and three held the opposite view but the judge was most impressed by the view of one of the dissenting experts who suggested there was only a small risk of total respiratory failure and this did not justify the invasive procedure of intubation. In the end the House of Lords ruled that: “The court should not accept a defence argument as being ‘reasonable’, ‘respectable’ or ‘responsible’ without first assessing whether such opinion is susceptible to logical analysis.” In other words, merely being a minority view of accepted medical practice does not necessarily mean an opinion is “illogical” or “irrational” and the final judgement as to whether there has been professional negligence must lie with the court and not the medical profession.

Jim Killgore is an associate editor of FYi