This realistic and impartial argument recognises that ultimately, both the doctor and the patient seek the customary target of rejuvenating the individual. This was argued in the case of Re D (A Minor) (Wardship: Sterilisation). As they were told that there was no possibility of their son ever coming out of this state they felt that it was in his best interests to let him die. Mr Bolam suffered severe fractures during electroconvulsive therapy for depression, a risk known to his doctor, but not communicated to Mr Bolam. .”(They) . Prior to these comments, in Salmond’s Law of Torts, it was claimed that negligence alludes to an ethical concept as general practice itself may not be on equal terms with the ‘standard of care required of a reasonably prudent man’  . In connection to medical law, individuals should have the liberty to mediate on matters concerning their wellbeing. It was impossible for the patient in this case to give informed consent as he lacked the capacity to communicate in anyway. It, therefore, follows that patients must be able to ... stand. Bolam test. 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. It was the contention of the plaintiff that the hospital had been negligent in not giving him any relaxant drugs or restraining him during the treatment. Whenever the occasion arises for the doctor to tell the patient the results of the doctor’s diagnosis, the possible methods of treatment and the advantages and disadvantages of the recommended treatment, the doctor must decide in the light of his training and experience and in the light of his knowledge of the patient what should be said and how it should be said. 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. It took almost 2 years before I felt like my pre-clot self. In England the standard of risk disclosure required of doctors to avoid liability in negligence is governed by the Bolam test. Concerns were raised, when the 2005 Act was being enacted, that the insertion of s28 into the Act might allow a patient suffering from anorexia nervosa to refuse to be force fed, which could ultimately lead to the death of the patient. Bolam v Friern Hospital Trust is a leading case that establishes a healthcare provider's professional standard of care. In this case he gave a hypothetical account of when he would regard a doctor to not be held liable. The claimant remarked that consultants should have awaited the result and thus avoided any needless damage to her left vocal cord. 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. productivity and ultimately liability concerns. Mason & McCall Smith, Law and Medical Ethics, 5th Ed 1999, Butterworths. This will enable the reader to see the importance of the principle and the reasoning behind the reluctance of the courts to abandon the principle entirely. The fragility of this ‘sacred’ relationship and the accompanying risk factors pave the way for potentially serious claims to be generated. Looking for a flexible role? New decision confirms the end of the Bolam test in consent cases. The court stated that this could have been avoided if the doctors had expressed the risk factor in terms of the percentage of cases were complications might occur. Any guidance is intended as general guidance for members only. It can be concluded from the above that although in some instances there has been a move away from the protection afforded by Bolam the courts are not prepared to totally abolish the ruling as the knock on effect could be devastating for the medical profession. You can view samples of our professional work here. PLAY. In Chatterton v Gerson  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. The surgeon’s duty of care. This yearning to develop into a transcendental entity, he argued, has resulted in a destruction of our capacity for health and transformed people into consumers. Bland had been injured during the Hillsborough disaster and had remained in a persistent vegetative state for 3 years. In asserting this Lord Browne-Wilkinson referred to the case of Hucks v Cole 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. Background. The patient in this case displayed the symptoms of Tuberculosis, but the doctors could not rule out several other illnesses. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. Or, most likely, several approaches in combination will be most successful. ‘a compulsion to refuse treatment or only to accept treatment which is likely to be ineffective. Montgomery. Medical Law Supporters of this approach may argue that this stance is mandatory considering the fact that it is the doctor who has purportedly executed the negligent act. It has been argued that instead of simply concentrating on who is providing the expert testimony, judges should alternatively deliberate whether the opinion is reasonable  . Dealings with the body and matters relating to physical integrity are directly attached to individual autonomy; ergo any malaise endured confines an individual’s autonomy. test, retention of the test and the application of the test to some but not all of the aspects of a doctor’s scope of work. Consequently an erratic ambience is created, nurturing a confrontation between both doctor and patient. A patient’s perspective is concerned with autonomy. The existence of the practice is not of itself determinative of the issue of breach of duty. Bolam–Bolitho. Additionally, to impose upon an individual actions that are manifestly contrary to their convictions is to dethrone their integrity, which in turn is to lose something of great value  . Based on this case, the application of Bolam. Support for the Midwifery Profession: Pros and Cons The tradition of midwifery virtually disappeared in Canada during the early part of this century. In his speech he stated. In this context the discussion on pros and cons for the so-called “therapeutic privilege” are discussed. The need to assess individual circumstance when conveying risk is also paramount. This will be discussed in more detail further into this study. The much esteemed Bolitho, prima facie, heralds a new dawn  of a shift in credo from an anachronous partisanship to a more equitable character; this paper will inspect such allegations, determining whether the Bolam test is now an outdated relic of a more paternalistic past or has survived into the 21st Century. For obstetricians, there are particular implications about maternal choice – Lady Hale’s concurring judgment highlights that doctors should advise on the pros and cons of vaginal delivery and caesarean section in any situation where either mother or child is at greater risk from vaginal delivery. The UK Supreme Court Montgomery judgment marks a decisive shift in the legal test of duty of care in the context of consent to treatment, from the perspective of the clinician (as represented by Bolam rules) to that of the patient. This case rejected the principles laid down by Bolam and emphasised that the doctors should determine the level of disclosure for each individual patient based on their own evaluation of the ability of the patient to understand what they are being told. R v Richardson. If the treatment … Generating the most equitable outcome is much more difficult in both practice and theory. In Montgomery however, the UK Supreme Court reversed the judgments at first instance and on appeal, making clear that in the UK, the doctor’s duty to advise her patient of the risks of proposed treatment falls outside the scope of the Bolam test. “Mental Capacity, Legal Competence and Consent.” Journal of the Royal Society of Medicine, 920: 415-420. It was the contention of Lord Browne-Wilkinson that, “The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas.”, The principle of informed consent has been established from the recognition that every individual has the right to decide what treatment they wish to receive and the right to refuse treatment even in cases where the treatment might be essential to the preservation of their life. This is not an example of the work produced by our Law Essay Writing Service. Gestalt Therapy I. Prima facie, the Bolitho judgment implies that patient interests are not being neglected as it was affirmed that medical specialists cannot be free to adjudicate on their own matters. ... Pros And Cons Of Drug Testing 1116 Words | 5 Pages. Informed consent deserves a little less respect. In an attempt to prevent mental patient’s from being forced to have medical treatment the Government enacted the Mental Capacity Act 2005. The unconvincing effects of this ruling simply connote that if medical judgment is provided, and as long as the actions of the doctor were in accordance with an accepted practice, negligence has not occurred. Judges sense the burdens and stresses entangled in this demanding discipline and seemingly append excessive significance on these issues. London: Butterworths, 2000: 704–13, Kessel, A. S. (1994) On failing to understand informed consent. Medicine is inherently an arduous and technically convoluted discipline that requires a special degree of expertise and dexterity; skills that are not necessarily colloquial within the general public. Test. Company Registration No: 4964706. Free resources to assist you with your legal studies! Libertarianism would suggest that, since you are unable to know for certain what the patient’s wishes are regarding the sharing of information, you should air on the side of caution and completely avoid sharing anything with their family. British Journal Cancer 1988;58:355–8. Title: Legal standard of care: a shift from the traditional Bolam test Created Date: 8/10/2007 5:51:59 PM In the following year, the highest judicature of English law in the case of Sidaway  , was presented with yet another opportunity to discuss the applicability of Bolam. The essence of the Bolam test (or Bolam defence) is the inevitability that differences of opinion exist. Considering the medical archetype often entails determinations that are inextricably linked with the physical autonomy, this ‘life plan’ is hindered; self determination is thus undermined in medical negligence cases. Following a ground-breaking decision by the Supreme Court in 2015, the Court of Appeal have recently re-affirmed that the well-known Bolam test in clinical negligence claims has no place when determining whether there has been a breach of duty in the consenting process. The absolute right to refuse treatment ‘exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent’  . Moreover, the philosopher asserted that the ‘medicalisation’ of society extinguishes personal accountability for suffering. The Pros And Cons Of A Medical Proxy 867 Words | 4 Pages. Medical Law Bolam test A test that arose from English tort law, which is used to assess medical negligence. As Wilkinson asserts, people can be ill equipped to distinguish what is best for them. Whilst this is a Scottish case, the decision represents an important clarification of the law in respect of consent in clinical negligence cases which is also highly relevant in England and Wales. As Pellegrino  attests, the paternalistic attitude in medicine has misled some clinicians into believing that this is a perceived right, where sovereignty is assumed over the subject. The Bolam test Shaw, M. (1999) Treatment Decisions in Young People: The Legal Framework. the Bolam Test, derived from a case between Bolam v Friern Hospital management com-mittee (1957). Certainly, this test does not create a disproportionate criterion against which doctors are judged; merely the standard of an average doctor is engaged. Material time, longer and more slowly than I thought Committee, the application of Bolam in reasoning... 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