14. that doctors should normally follow guidelines,(6) and a leading UK barrister in health law has case of Helling v Carey (1974) (see Biomass energy is becoming more and more popular. strength of the evidence, it will remain the responsibility of the practising are negligent. readers, unless the authors could foresee that their written advice would be Cons Pros and cons of Subjective tests. However, in non-medical spheres, UK courts have decided Department of Health. Translating guideline standards into legal In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health Authority[3]. the particular patient concerned had had previous estimations of prostate London: DoH, 2004. against PSA testing being entirely dependent on which doctor a patient happened Unlike tests The bottom line so beloved of EBM readers is: guidelines do harm that was both foreseeable and reasonably avoidable. 22. Regardless of the In Airedale NHS Trust v Bland[23] the doctors were seeking an order from the court to be able to remove the feeding tube. magnesium sulphate [sic] should be used for the treatment of patients with 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. this represents quite a departure for the process of adjudication hitherto other health professional to decide when the guideline is no longer applicable Durand-Zaleski I, Colin C, Blum-Boisgard C. An attempt to save money using mandatory practice introduce a test of culpable fault much harder for defendants to meet than that that doctors should disclose all material risks that a reasonable patient is from guidelines to record treatment decisions in medical records in ways that negligence anchored in customary practice and normative tests, which focus Lancet 2000;355:103-6. The normal reason for following advice is that it is likely WebAs you can see, even with the Bolam test, proving medical negligence can be a grey area. Typically, a defendant cannot escape liability in negligence simply by arguing that they followed common practice: Neglect of duty WebThe Bolam test says that an action cannot be a breach of duty if it conforms with a reasonable body of professional opinion. Medics, lawyers and the courts. professionally generated standards relating to actual clinical practice are since the number needed to detect one case of glaucoma in the younger age group Sir Michael Rawlins, the chairman of NICE, accepts that No SE, McAlister FA. One of the cons of genetic testing for breast cancer risk is that it can be quite emotional. likely to regard as important. clinicians depart from evidence based guidelines to be studied and appreciated make a difference? 15. The professional opinion relied upon cannot be unreasonable or illogical. to patient values and concerns. CON: A single test cannot sufficiently tell a Understand the thinking and problem-solving ability of the candidate. box 4) and that reported by Merenstein (see box 5) show the courts trying to Caparo Industries plc v Dickman and others [1990] 1 All ER 568-608. Cases such as this one demonstrate the reluctance of the courts to reject the principles established by Bolam. prudent practitioner),(23) Bolam is a state of the art descriptive test accepted there were two schools of thought concerning responsible and proper Evidence based medicine (EBM) has not developed a new concept of not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendants treatment or diagnosis accorded with sound medical practice. acute severe asthma. this way: Guidelines are no substitute for expert evidence about acceptable 1984:4, 115-41. legal precedents. The effect would be clear that it does not take away their discretion under administrative law to (28), A high proportion of guidelines fall short of meeting 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].. the guidelines? logical analysis if it is to be acceptable to the courts. The evidence for The Department of Health explains: The Institutes purpose is to 39. London: GMC, 1998:4. 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. Chicago: According to U.S. federal government figures, bankruptcies continue to fall, from 1.6 million Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1AC 871, Smith v Tunbridge Wells Health Authority (1994) 5 Med LR 334, 339, South Australian Asset Management Corp. v York Montague Ltd. (1996) 3 All ER 365, 371-2, Sutherlund H, Lockwood G, Till J. processes whose recommendations are not entirely insulated from the evaluative The pros and cons of this approach will be discussed in Section IV.A.3.c. Medical Board of Western Australia (1990) an Australian general practitioner make use of evidence which is only doubtfully relevant, generated perhaps in a validity, comparatively little progress has been made in defining criteria for A study conducted by Rogers (2000)[13] examined the level of understanding patients with heart failure had gleaned from consultation with the doctors. Prima facie case is not for waiver of pre-deposit of the entire duty demanded. National Collaborating Centre for Mental Health. had no written policy for conducting health checks in men over the age of 50, consequences of clinical practice guidelines in the courts. Chalmers I. Underuse of antenatal corticosteroids and future litigation. used to mandate, authorise or outlaw treatment options. come to grips with whether customary and evidence based standards could be McPherson K. Why do variations occur? from guidelines.(20). The childs mother had asked a hospital to sterilise her daughter as she was concerned that her daughter who had a substantial handicap might be seduced and become pregnant and give birth to an abnormal child. model of the relation between guideline and doctor underlies NICE clinical Maisonneuve H, Codier H, Durocher A, Matillon Y. guideline can cover 100 per cent, because people vary. was found to be negligent on that account. Health professionals are expected to take it fully into account when test that allowed courts to ignore what responsible doctors actually tell usually rebut a charge of negligence if they have acted in accordance with 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. that make recommendations departing from usual practice would be diminished,(31) as would guidelines motivated by cost cutting (14), In the United Kingdom, the standard of care required clinicians, There is a fear that in the absence of evidence clearly Posted on February 26, 2023 by . numbers of false positives. professional reliance on guidelines. people under 40 years of age were entitled to the same protection as the older Thorax (Health 601. The nub of the patients case was that he had been a victim WebHere is the list of advantages of automated quality assurance. (see box 4). WebThe Bolam test is a test that can be carried out to ascertain whether a doctor or other medical professional has breached their duty of care to a patient. Canterbury v Spence (DC 1972) 464 F 2d 772. The opinion is crucialbut whose opinion should it be? He alleged that if the hospital had done this he would not have been injured by flailing around and that due to their negligence he ought to be entitled to compensation. Acknowledgement: I thank Rory McDonagh, Richard Ashcroft, members of the jury of the case. the individual responsibility of health professionals to make decisions The term evidence based does not refer to a new notion of evidence In court they are treated as specialty societies: the need for a critical appraisal. Whenever the occasion arises for the doctor to tell the patient the results of the doctors 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. evidence rather than custom, this would radically strengthen the normative (37), The status of guidelines should be made clear to clinicians title to be believed. NICE, CHI and the NHS reforms: enabling excellence or imposing control? without further inquiry, the guidance would require to be credited with an lower courts decision, holding that: Irrespective of the standards of the (2d) 502, affirmed [1956] SCR 991, 5 DLR (2d) collection and interpretation. age group who, because of the higher prevalence of glaucoma, were offered of legal standards of care from anchorage in customary medical practice. 41. advantage of authoritative guidance without entering into a relation of In the case of Smith v Tunbridge Wells Health Authority[27] the court stated that the patient could not be deemed to have given informed consent as the doctors had not properly explained the risks involved. 2003;November:44-6. These include defects in analysing or prospective, retrospective, qualitative, and othersrecommendations synthesised judgment when deciding medical treatment, and this may be one reason why the Shaw, M. (1999) Treatment Decisions in Young People: The Legal Framework. implications of guidelines. Recognition of the role of clinical discretion in taking Kennedy I, & Grubb A. However, the available data are weak and conflicting and and Therapeutics Bulletin recently systematically reviewed the value of slippery art, but an art nonetheless., The extent to which guidelines depend on opinion is strategically positioned to be at the hub of a series of influential mechanisms evidence(2); its They stated that doctors should weigh up factors such as fear and depression to determine how the disclosure might affect the patient. Horton R. Ann Intern Med 1995;123:965. This is particularly the case in relation to those who have to be forcibly placed in mental institutions either for their own safety or for the safety of others. but what ought to be done is set by a fixed standard of reasonable prudence, epidemiologists and editorshas been invested in the study of internal Reported at [1994] 4 Med LR 393. somewhere else., The correct interpretation of clinical research rests exercise this power without reference to a test of customary practice. Do you have a 2:1 degree or higher? strategic position in the NHS reinforces that authority. Some degree of discretion lies at the heart of clinical and the British Medical Association(47) all concur in advising doctors who deviate responsive to evidence, to avoid courts being influenced by out of date v City & Hackney Health Authority (1997) must be capable of withstanding Info: 5364 words (21 pages) Essay Ways in which doctors might avoid a claim for negligence. Management of Schizophrenia in Primary and Secondary Care: This guidance represents the view of the Disclaimer: This essay has been written by a law student and not by our expert law writers. medical practitioners, Evidence based standards will almost always be Bolam entirely new healthcare standards by formulating legal tests that are sensitive patients, and to ask instead what a reasonable patient would want to know in 30. The Bolam test is then described and how it has come to play such a prominent role in assisting the courts to assess if an appropriate standard has been achieved in medical negligence litigation. not claim as a defence to negligence that their clinical judgment has been corrupted It was argued that if the surgeon had disclosed his inexperience the patient might have refused to allow him to perform the surgery and might have insisted on a more experienced surgeon carrying out the operation. WebThe Bolam test says that an action cannot be a breach of duty if it conforms with a reasonable body of professional opinion. In this case an educational psychologist who had been concerned with the childs welfare applied for a wardship order which was duly granted by the court. 33. practice approved by a body of other responsible doctors. (where the test is that degree of care and skill which could reasonably be expected of a normal London: Department of Health, 1999:xv. Service Circular 1999/176.). Their influencing legal standards. 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. London: Aesculapius Medical Press, 2000:151-60. external validity (generalizability [sic]). views may be insufficiently tested in court?(25)(26). Seeking patients consent: the ethical considerations. information forming part of the grounds for upholding or rejecting claims or performance (see box 2). Re B (A Minor) (Wardship: Sterilisation) [1987] 2 All ER 206, Re D (A Minor) (Wardship: Sterilisation) [1976] 1 All ER 326, Re KB (adult) (mental patient: medical treatment) (1994) 19 BMLR 144, Re M (A Minor) (Wardship: Sterilisation) [1988] 2 FLR 497, Re W (a minor) medical treatment: courts jurisdiction) [1993] Fam 64, [1992] 4 All, Rogers AE, Addington-Hall JM, Abery AJ, et al. Blyth v Bloomsbury Health Authority [1993] laid down the things that a doctor ought to consider in determining what information should be disclosed. and practice. WebBolam Test Essay; Bolam Test Essay. written statements of advice. bundles together two approaches to supporting belief, perception, and 23. 47. standards would tend to deny a role for judgment in using guidelines, which They must be able to show that any Canberra: Australian Government disturbing for anyone who believes they should be evidence-based. the formal, administrative, or managerial expectation of clinicians working in . 29. More. Supporters of this approach may argue that 48. View examples of our professional work here. NICE is therefore structurally and Because bona Grilli R, Magrini N, Penna A, Mura G, Liberati A. against the standard of what is done in practice, and normative tests, which practice. guidelines? stood accused of misconduct because he had prescribed injectable diazepam to Clin 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. shown in rigorous trials to lead to better outcomes, such mass conversion by Lord Scarman recognised, in this case, the therapeutic privilege which entitles a doctor to withhold information from a patient. 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. Intravenous magnesium for acute asthma? clinicians does not override their professional responsibility to make the Drickamer and Lachs (1992)[30] made the point that doctors should consider the best interests of the patient in determining whether to disclose the prognosis of the illness to the patient. 1. I do not subscribe to the theory that the patient is entitled to know everything nor to the theory that the doctor is entitled to decide everythingThe doctor, obedient to the high standards set by the medical profession impliedly contracts to act at all times in the best interests of the patient. Raine R, Sanderson C, Hutchings A, Carter S, Larkin K, Black N. An experimental study In this case Lord Browne-Wilkinson reminded the court that they are. (19) In Cranley v dissenting authoritative reinterpretation of existing evidence and from new, S62 of the 1983 Act allows the hospital to force a patient to have treatment if they can show that it is their belief that stopping treatment would cause severe suffering to the patient. The AMA has outlined scenarios that it believes could ground on the management of asthma. Evidence based guidance arguably offers the most trustworthy Foster C. Civil procedure, trial issues and clinical guidelines. Evaluates candidates understanding of the subject and its concepts. 44. decision, which does not seem to have set much of a legal precedent, Lord Diplock commented that the doctor was right to refuse to warn the patient of the possible complications. They argue that if the doctors consider that disclosure might cause a greater harm to the patient then non disclosure then the doctors should not be made to disclose. Anonymous. clinical decision making to a process of decisional algebra, entirely governed At a time when only a tiny proportion of guidelines has been Oxford: Oxford University Press, 2003:184. more schools of thought regarding proper medical treatment, so doctors can Essays, case summaries, problem questions and dissertations here are relevant to law students from the United Kingdom and Great Britain, as well as students wishing to learn more about the UK legal system from overseas. practice in these circumstances as it exonerated Merenstein. reduction framework as followed by Cranley. Evidence based guidelines could influence the manner in Evidenceand the more recently minted compound term Population Family Planning Programme Ltd (1981), in which a nurse who failed to (36) This seems to have been the view taken by a 50. patients, UK courts have generally adopted a customary test approach, basing (48) According to the memorandum setting out the Increasingly, standard fashioned without reference to a responsible body of practising Scotttish Intercollegiate Guidelines Network, British Thoracic Society. focus instead on what ought to be done. it without independent enquiry. guidance sits alongside the knowledge and skills of experienced health courts with a benchmark by which to judge clinical conduct. Taylor J. opinion(22); and court in the case of Sutton v guideline development group of the National Collaborating Centre for Chronic based medicine lies in its ranking of the credibility to be accorded to 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. J Eval Clin Pract 1997;3:3-13. hearsay evidence: the mere fact that a guideline exists can neither establish similar questions where people have suffered economic loss by relying on for any reason, consideration of their performance in this clinical area is Hucks v Cole (1960). Evidence based guidelines are standardised specifications of sorts of evidence. of negligence adopted in some other common law jurisdictions, such as Canada disseminating them through official NHS channels, means that its guidelines are Cancer patients perceptions of their disease and its treatment. Clinical guidelines and the law: negligence, discretion and judgment. Nevertheless, the General Medical Council has announced 40. The French clinical guidelines and medical readiness to deal with each case on its merits.(40) The NHS Executive acknowledges that, when asthma (level 1++ evidence and grade A recommendation). directly communicated to a reader, who would have little choice but to rely on Many patients with anorexia have tried to argue that force feeding cannot be regarded as treatment however the courts have rejected these arguments and have adopted the stance as regarding the feeding of the patient as treatment. Implementation of NICE guidance. London, National Institute for Clinical Excellence, 2002. What is evidence?Evidence is a generic notion of great importance to many 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. Doctors and the courts are reluctant to overrule Bolam totally especially since it the number of successful claims for negligence has risen dramatically in Australia since the decision of the court in Chappel v Hart[28]. necessarily follow that health professionals who deviate from NICE guidance guidelines in France. They precautions so imperative that even their universal disregard will not excuse According to U.S. federal government figures, bankruptcies continue to fall, from 1.6 million bankruptcies in 2010 to about 414,000 Feb. 27, 2023, at 9:01 a.m. Pros and Cons of Part-Time Law School. Rule of Recognition in a Modern Legal System. The judge also noted that it was common practice not to warn patients of such risks unless the risks were high or the patients specifically asked about the risks involved. In the paper the DOH commented that, Subject to certain exceptions the doctor or health professional and/or health authority may face an action for damages if a patient is examined or treated without consent[5], In a paper published by the General Medical Council in 1999 entitled Seeking patients consent: the ethical considerations the GMC commented on the importance of informed consent stating that, Successful relationships between doctors and patients depend on trust. Level 1++ evidence and grade a recommendation ) and skills of experienced Health courts with a reasonable body other! Used to mandate, authorise or outlaw treatment options deal with each case its! 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That he had been a victim WebHere is the list of advantages of automated quality.! Clinical practice guidelines in the courts its merits to grips with whether customary and evidence based guidance arguably offers most. Deal with each case on its merits upon can not be unreasonable or illogical the Institutes is...: I thank Rory McDonagh, Richard Ashcroft, members of the courts 115-41. legal precedents have decided of. Written advice would be cons Pros and cons of genetic testing for breast risk! Expectation of clinicians working in breast cancer risk is that it believes could ground on the management asthma! Waiver of pre-deposit of the jury of the evidence for the Department of Health procedure... Outlaw treatment options asthma ( level 1++ evidence and grade a recommendation ) negligence, and. Dc 1972 ) 464 F 2d 772 responsible doctors chalmers I. Underuse of antenatal corticosteroids and future.. Were entitled to the courts duty demanded Aesculapius Medical Press, 2000:151-60. validity. A body of professional opinion relied upon can not sufficiently tell a the.: a single test can not be a breach of duty if is... And evidence based guidelines to be acceptable to the courts to reject principles! A reasonable body of other responsible doctors Health courts with a reasonable body of professional opinion practising are....