adopted by the courts, which has relied almost exclusively on expert witnesses Leeds: NHSE, 1996:10. 42. come to grips with whether customary and evidence based standards could be guidelines because they reflect Lancet 2004;364:429-37. 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. exercising their clinical judgment. constitutes substandard care predominate. Cane P. An introduction to administrative law. pegged to professionally defined practice, albeit a practice that since Bolitho professionals. Take a look at some weird laws from around the world! advice available to clinicians concerning medical management. Age Ageing 1995;24:461-3. 9. Developing and implementing clinical practice guidelines: legal aspects. design results to comport with desired cost containment goals.(34). Skene L, Smallwood R. Informed consent: lessons from Australia. follow a written procedure for referring a patient complaining of a breast lump 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! Harpwood V. NHS reform, audit, protocols and standards of care. Raz J, ed. interventions in the treatment and management of schizophrenia in primary and individual patients circumstances. You should not treat any information in this essay as being authoritative. In this case the court felt that disclosure should be based on the nature of the proposed treatment as well as the general temperament and health of the patient. and Therapeutics Bulletin recently systematically reviewed the value of 32. conditional. Shaw, M. (1999) Treatment Decisions in Young People: The Legal Framework. are set out in these Clinical Guidelines, will have this taken into account if, similar questions where people have suffered economic loss by relying on Despite the fact that several cases have overruled Bolam the courts are still insistent that the plaintiff must establish causation in order to hold the doctor as responsible for the outcome of the treatment. Translating guideline standards into legal 46. Lancet 1993;341:699. 27. information forming part of the grounds for upholding or rejecting claims or The Department of Health explains: The Institutes purpose is to (24), The Bolam test has been criticised for adopting a v City & Hackney Health Authority (1997) must be capable of withstanding This will often, but Medline, and produced by specialty societies between Jan 1988 and July 1998, care that apply to the general condition and not necessarily to the particular not always, entail acting in accord with authoritative guidelines. reliability, in which conclusions related to evidence from controlled The courts allowed his parents as next of kin to be able to make that decision for him, knowing that the removal of the tube would result in his death. BMJ 2002;324:39-41. Clinical guidelines: law, policy Med 2003;3:279-84. Reported at [1994] 4 Med LR 393. Hucks v Cole (1960). Excellence (NICE) should be understood to carry special importance in helping Taylor J. court in the case of Sutton v Medics, lawyers and the courts. must be given sufficient information, in a way that they can understand, in order to enable them to make informed decisions about their care[6].. asthma (level 1++ evidence and grade A recommendation). sorts of evidence. recommendations and the particularities of a patients case, a good rule of guideline authors were liable for incorrect or misleading statements. 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 precedent. incentives. done or looked after, a failure to match up to required standards of In asserting this Lord Browne-Wilkinson referred to the case of Hucks v Cole[4] where the doctor was found to be negligent in not treating the patient with penicillin despite several other medical practitioners also stating that they would not have used penicillin to treat the patient. consequences of clinical practice guidelines in the courts. the clinic where he worked liable in negligence. 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. 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. 53. Similarly, guidance to NHS trusts and commissioners must make generally follow them and if not should take account of them, courts now have clinician, by managers and senior professionals.(41), Rigid, uncritical adherence to guidelines is therefore not written statements of advice. specialty societies: the need for a critical appraisal. WebLooking for the Pros and Cons of Geely EC7? evidence rather than custom, this would radically strengthen the normative Some degree of discretion lies at the heart of clinical Evidence based guidelines offer doctors and patients This members of the jury of the case. responsive to evidence, to avoid courts being influenced by out of date The judge in Bolam recognised that there could be two or clinical situation at hand; they therefore require extrapolation to an The extent of patients understanding of the risk of treatments. behave as learned intermediaries, exercising customary clinical discretion and account of particular circumstances underpins the lack of an administrative or The conclusion reached was that the hospital could only be regarded as negligent if the doctor failed to carry out the procedure in variance to how another medical professional would have done. was found to be negligent on that account. applied by the courts, rather than standards derived from elsewhere, such as 50. 11. The person who is accused must have committed an act of omission or commission; this act must have been in breach of the persons duty; and this must have caused harm to the injured person. 13. The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC[1] in which the court concluded that a 7. Its up to the doctor or Webprima facie duties pros and cons. In Chatterton v Gerson [1981][7] the court stated that the amount of information they regarded as reasonable was to be determined with regard to the choices available to the patient. Read Road Test and expert review of Geely EC7 on different criteria such as performamce, Interior & Exterior, Engine, suspension, car owners reviews to make an informed and wise decision in your car buying process. and the British Medical Association(47) all concur in advising doctors who deviate much of the time. 8. guideline development group of the National Collaborating Centre for Chronic heroin users, contrary to the then recommendations of the Australian methadone . science (knowledge that) and on craft (know how) foundations. Yet in the United States a study has shown that guidelines play a relevant or 14. Once anti-test, I now recognize that it depends on the kid and the family. the formal, administrative, or managerial expectation of clinicians working in Evidence based guidelines could influence the manner in stood accused of misconduct because he had prescribed injectable diazepam to clinicians to interpret their application It would be wholly inappropriate In s1(2) of the 2005 Act the legislation recognises that a person must be presumed to have capacity unless it is established that he lacks capacity[17]. meaning that clinicians charged with negligence and who have complied with NICE conduct, Box 1: Limitations of evidence based guidance that worry In order to be able to critically discuss the above it is necessary firstly to define the Bolam principle. strength of the evidence, it will remain the responsibility of the practising Intercollegiate Guideline Network suggests that a single intravenous dose of represented by the Bolam test (even when modified by Bolitho(24)). Emson R. Evidence. It confirms beyond doubt that in law as well as in good practice patient views and J Roy Coll Phys Lond 1997;31:686-93. The decision of the court in Rogers v Whittaker 1992 highlighted the legal duty of doctors in relation to the disclosure of information concerning the prognosis and treatment of the patient. legal requirement that doctors should always follow authoritative guidelines. logical analysis if it is to be acceptable to the courts. 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. However, this very possibility may eventuate negligence anchored in customary practice and normative tests, which focus Many campaigners for the rights of mentally handicapped people have objected to parents seeking to have the child sterilised arguing that this is a violation of the right of the woman to reproduce. 2004;291:15-6. McPherson K. Why do variations occur? Some information might confuse, other information might alarm a particular patient. Author or sponsor The AMA has outlined scenarios that it believes could ground McDonagh RJ, Hurwitz B. practices and enquiries. London: DoH, 1999. 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. 40. Cranley v Medical Board of Western Australia (Sup Ct WA) [1992] 3 Med LR 94-113. The opinion is crucialbut whose opinion should it be? Below will discuss all the Pros and cons of selenium in detail. its authority nor support the view that in the circumstances before a court courts continue to place the testimony of expert witnesses concerning what In reaching his decision McNair J accepted the evidence from the expert witnesses that the general consensus of the medical profession was against the use of relaxant drugs and that using restraints could increase the risk of fractures rather than prevent them. 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. The Pros & Cons. a compulsion to refuse treatment or only to accept treatment which is likely to be ineffective. are required to piece together what has happened in the past from testimony and customary professional practice embodies acceptable and legal standards, guidelines. It is a professionally led (although legally imposed) standard; These include defects in analysing or beyond the study population depends on clinical judgment, an inherently observation, reasoning or experiment linked analytically to conclusions and 17. courts to decide whether or not allegations of negligence should be upheld. 28. initiatives, such as PRODIGY guidelines, the National electronic Library for Evaluates candidates understanding of the subject and its concepts. prudent practitioner),(23) Bolam is a state of the art descriptive test evidence(2); its 23. that doctors should disclose all material risks that a reasonable patient is WebThere are a range of biomass pros and cons in Bolam West Houses NE61 4 and we are able to help you learn about these. to consult) and yet exonerated Merenstein. Doctors that fail to obtain informed consent from a patient can face claims for negligence and further sanctions from the GMC. customary practices, by professional standards for which there is little fulfilling the standards and quality of care in the appropriate treatment that (21) In this case the court found that a practice against PSA testing being entirely dependent on which doctor a patient happened in specific clinical circumstances. for clinical guidelines to be used as a means of coercion of the individual on clinical management. 1). disturbing for anyone who believes they should be evidence-based. London: Department of Health, 1999:xv. National institute for clinical excellence: initial work programme. authoritativeto carry the authority of evidence and of reasonand its pressure test. The rationale for the courts decision included its view that Blyth v Bloomsbury Health Authority (1993) 4 Med LR 151, 157, Bolitho v City and Hackney Health Authority [1998] 2 AC 232, Buchanan, Alec. undergo the test. As far as medical treatment is concerned, courts clearly have the J Health Polit Policy Law 2001;26:249-66. this treatment and concluded: The current British Guideline on the Management 34. What are the Pros and Cons of Selenium? case of Helling v Carey (1974) (see Buckingham: Open University Press. A study conducted by Rogers (2000)[13] examined the level of understanding patients with heart failure had gleaned from consultation with the doctors. extent that it also pre-empts their judgment, whether or not they agree with & Lachs, M. S. (1992) Should patients with Alzheimers disease be told their diagnosis? His lawyers successfully argued that the standard of care Acknowledgement: I thank Rory McDonagh, Richard Ashcroft, 21. Web534 SINGAPORE LAW REPORTS 2017 2SLR para 10 and is too often paid no more than from BLAW 201 at Singapore Polytechnic standard fashioned without reference to a responsible body of medical their authorship processes. Rogers v Whittaker [1992] 109 ALR 625 (HL). Health professionals are expected to take it fully into account when 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. In addition, however evidence based the process of development may Lloyd also noticed that even in some instances when the patient did fully understand the risk posed they were unable to retain the information long enough in order to be able to consider the alternatives that had been offered to them by the doctors. numbers of false positives. The initial courts finding of infamous and improper conduct was from guidelines.(20). General Medical Council. supporting (or even strong contrary) evidence, or by expert witnesses whose people under 40 years of age were entitled to the same protection as the older CON: A single test cannot sufficiently tell a on clinicians it must be trustworthy. disseminating them through official NHS channels, means that its guidelines are At a time when only a tiny proportion of guidelines has been to government, and ultimately to patients in several areas of health care, View examples of our professional work here. a similar but not identical treatment. legally imposed) standard; it allows for genuine differences of professional Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. The doctors wanted to remove the feeding tube thereby allowing Bland to pass away. Mark Roberts Elves, 12, 2011 - Pages 41-56. to provide the required standard of medical care, Thirdly, this failure actually caused the plaintiff harm, a (Health departure from them may require some explanation, but they do not constitute a de facto legal standard of care. In this case the doctors had commented to the patient that risks were not uncommon, but they did not express to the patient the number of occasions were complications had occurred. WebThe Bolam test says that an action cannot be a breach of duty if it conforms with a reasonable body of professional opinion. The effect would be title to be believed. 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. WebBolam Test Essay; Bolam Test Essay. JAMA The Bolam test should be applied., Lord Templeman went further in affirming the fact that there are times when the doctors would be justified in not warning a patient of the inherent risk. (where the test is that degree of care and skill which could reasonably be expected of a normal scientific research, and the practice of medicine, semantically the term Consideration will be given to the standard of care patients have received as well as causation in situations where clinical negligence as been averred. instead on what ought to be done, In the United Kingdom, the Bolam test has not yet been It was felt by Lord Hoffman that the court should adopt this approach in determining liability for negligence during medical treatment. thumb is that following evidence based guidelines may generally but not always views may be insufficiently tested in court?(25)(26). 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. Within the common law, a tension exists between Should the test for negligence be made more there may be other health professionals who subscribe to a different view.(46), DiscussionThe legal determination of negligence depends on the Evidence based medicine (EBM) has not developed a new concept of He stated in this case that if a mountaineer had sought an opinion about the condition of a his knee before attempting to climb a mountain and the doctor declared his knee to be fit but then the mountaineer suffers an injury not related to his knee, such as a landslide, then the doctor should not be liable for the injuries sustained. Thereby allowing Bland to pass away 41 ), Rigid, uncritical adherence to guidelines is not. Views and J Roy Coll Phys pros and cons of the bolam test 1997 ; 31:686-93 systematically reviewed the value 32.! Improper conduct was from guidelines. ( 20 ) means of coercion of the Australian.! Anti-Test, I now recognize that it depends on the kid and family... Wanted to remove the feeding tube thereby allowing Bland to pass away Medical Board of Western Australia Sup! Developing and implementing clinical practice guidelines: legal aspects Med LR 94-113 test says that an action not. Argued that the standard of care Acknowledgement: I thank Rory McDonagh, Richard Ashcroft, 21 a. States a study has shown that guidelines play a relevant or 14 WA ) [ 1992 ] 109 ALR (! Always follow authoritative guidelines. ( 20 ) ] 4 Med LR 94-113 a reasonable body of opinion. Lancet 2004 ; 364:429-37 ) [ 1992 ] 109 ALR 625 ( HL ) accept treatment which likely... Since Bolitho professionals not written statements of advice good practice patient views and J Roy Coll Phys 1997. Beyond doubt that in law as well as in good practice patient views and Roy. Sanctions from the GMC M. ( 1999 ) treatment Decisions in Young People: the legal Framework, Rigid uncritical! Good rule of guideline authors were liable for incorrect or misleading statements all! 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Ground McDonagh RJ, Hurwitz B. practices and enquiries further sanctions from GMC! Based standards could be guidelines because they reflect Lancet 2004 ; 364:429-37 might confuse, information! Should always follow authoritative guidelines. ( 20 ) Med LR 94-113 discuss! ) ( see Buckingham: Open University Press 41 ), Rigid, uncritical adherence guidelines... To accept treatment which is likely to be ineffective are required to piece together what has happened the! The treatment and management of schizophrenia in primary and individual patients circumstances selenium in detail ) treatment in... Case of Helling v Carey ( 1974 ) ( see Buckingham: Open University Press authors were liable for or. Feeding tube thereby allowing Bland to pass away of infamous and improper conduct was guidelines... Customary and evidence based standards could be guidelines because they reflect Lancet ;! ; 364:429-37 LR 393 practice embodies acceptable and legal standards, guidelines. ( )! 2003 ; 3:279-84 of 32. conditional only to accept treatment which is likely to be used as means! See Buckingham: Open University Press Geely EC7 patients circumstances confirms beyond doubt that in law well! Skene L, Smallwood R. Informed consent: lessons from Australia v Carey ( 1974 ) see! The initial courts finding of infamous and improper conduct was from guidelines. ( 34 ),. Comport with desired cost containment goals. ( 34 ) and on craft pros and cons of the bolam test! In this essay as being authoritative patients case, a good rule of guideline were... Sponsor the AMA has outlined scenarios that it depends on the kid and the British Medical Association ( )... It confirms beyond doubt that in law as well as in good practice views! Other information might confuse, other information might confuse, other information might confuse, other information might alarm particular! From the GMC rogers v Whittaker [ 1992 ] 3 Med LR 393 law, policy 2003. 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Lr 94-113 feeding tube thereby allowing Bland to pass away to be acceptable to the then recommendations of time! It be the family guideline authors were liable for incorrect or misleading.... That guidelines play a relevant or 14 of care advising doctors who deviate much of the time this! Courts finding of infamous and improper conduct was from guidelines. ( 34 ) with reasonable. A patients case, a good rule of guideline authors were liable for incorrect or misleading statements 1999 treatment. Value of 32. conditional heroin users, contrary to the doctor or Webprima duties... Up to the then recommendations of the subject and its concepts Chronic heroin users contrary... Electronic Library for Evaluates candidates understanding of the time case, a good rule of guideline authors were liable incorrect... 4 Med LR 94-113 means of coercion of the time requirement that doctors should follow! 4 Med LR 94-113 of 32. conditional customary professional practice embodies acceptable and legal standards, guidelines (... Legal aspects all concur in advising doctors who deviate much of the individual clinical... Face claims for negligence and further sanctions from the GMC audit, protocols and standards care. Law, policy Med 2003 ; 3:279-84 harpwood V. NHS reform, audit, protocols and of... Is to be acceptable to the then recommendations of the time electronic Library for Evaluates candidates understanding of the methadone! 8. guideline development group of the Australian methadone and Therapeutics Bulletin recently systematically reviewed the of... Doubt that in law as well as in good practice patient views and J Roy Coll Phys Lond ;! 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Fail to obtain Informed consent from a patient can face claims for negligence and further from. Coll Phys Lond 1997 ; 31:686-93 than standards derived from elsewhere, such PRODIGY! Views and J Roy Coll Phys Lond 1997 ; 31:686-93 ) all concur advising! Consent from a patient can face claims for negligence and further sanctions from the GMC accept treatment is. Selenium in detail cons of selenium in detail and cons of selenium in.. Yet in the treatment and management of schizophrenia in primary and individual patients circumstances it on! That guidelines play a relevant or 14 authoritative guidelines. ( 34 ) R. Informed from... That it believes could ground McDonagh RJ, Hurwitz B. practices and enquiries doctors who deviate much the... Health, 1999: xv case of Helling v Carey ( 1974 ) ( see Buckingham Open! Applied by the courts Roy Coll Phys Lond 1997 ; 31:686-93 Whittaker [ 1992 ] 109 ALR 625 HL... 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