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By P S Ranjan & Co.
Advocates & Solicitors

In 1954 John Hector Bolam who was suffering from mental illness was advised to undergo electro-convulsive therapy. He signed a consent form but was not advised of a one in 10,000 risk of fractures. No relaxant drugs were given and no manual control, save for support of his lower jaw was used. A male nurse had stood on each side of the treatment couch. In the course of his treatment Bolam suffered dislocation of both hips and fractures of the pelvis on both sides.

There were two bodies of opinion. One favoured the use of relaxants or manual control as a general practice. The second view was that the relaxant drugs were to be used where there were particular reasons for their use. There were also different views on whether an express warning should be given for the risk of fractures or that it should be left to the patient to inquire about the risk(s). The jury were directed by McNair J that a doctor is not negligent if he is acting in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that particular art, merely because there is a body of such opinion that takes a contrary view. The jury found that the defendants were not negligent.

Mrs Nadine Montgomery studied molecular biology and graduated with a bachelor of science. She worked for a pharmaceutical company as a hospital specialist. Her mother and sister were both general practitioners. She was expecting her first baby. She was just over 5 feet in height and had insulin dependent diabetes mellitus and was told that she was having a larger than usual baby. The doctor did not advise her of the risk of shoulder dystocia and she was not advised to undergo a Caesarean section. Mrs Montgomery was advised to undergo a vaginal delivery and that if difficulties were encountered then recourse would be had to a Caesarean section. During the delivery her baby suffered shoulder dystocia. Following what was described as an obstetrician’s nightmare her baby suffered Erb’s palsy and was later diagnosed with cerebral palsy affecting all 4 limbs. The trial judge and the court of appeal applying Bolam accepted that based on a responsible body of opinion that there was no need to advise on the risk of shoulder dystocia and the option of an elective Caesarean section.

The Supreme Court had set aside the lower court’s decisions and allowed Mrs Montgomery’s appeal and said as follows: -

  1. that consent must be obtained before treatment is provided;
  2. that reasonable care must be taken on advising on the material risks of each of the available reasonable treatment options;
  3. that a risk was material if a reasonable patient would regard a particular risk as significant or the doctor was or should reasonably be aware that the patient would likely to attach significance to it and it was impossible to reduce to percentage terms the materiality of the risks;
  4. that the doctor may rely on the therapeutic exception in not disclosing the risks if disclosure would be seriously detrimental to the patient’s health;
  5. that the therapeutic exception was a limited exception to the general principle and it did not allow doctors to prevent patients from making an informed decision; and
  6. that the doctrine of necessity will apply where the patient required urgent treatment but was either unconscious or otherwise unable to make a decision.

The Supreme Court decided that Bolam was no longer good law in regard to the duty to provide advice and information. The test to apply was the patient standard test as explained above. Bolam has limited relevance and does not apply to: -

  1. the duty of care;
  2. the findings of fact;
  3. the causation and foreseeability; and
  4. the damages.

In Dr Teh Bee Tee v Dr Joshua Mohanraj Daniel & Anor [2018] 11 MLJ 238, Akhthar Tahir J had decided that Bolam had no role to play in the court making a finding of fact regarding the size and shape of cells seen following a histopathological examination of tissues taken from the uterus. In that case the defendant pathologist had described the cells to be round in shape when the cells were in fact elongated and spindled shaped resulting in a failure to diagnose cancer.

Bolam applies not only to the healthcare profession but also to other professions. In Edward Wong Finance Co. Ltd v Johnson Stokes & Master ( A Firm) [1984] (P.C.) 296 the Privy Council found liability against a firm of solicitors who had followed a generally approved and accepted practice amongst solicitors in Hong Kong which the Privy Council said was a dangerous practice.

Bolam as watered down by the House of Lords in Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 applies only to the standard of care provided or not provided in a clinical negligence case. The House of Lords had decided that before the expert opinion can be relied on the court must decide that such expert opinion is reasonable, responsible and respectable and stood up to logical analysis. Bolam had unfortunately been misused in defending healthcare care defendants and even more unfortunate is that some judges had readily surrendered to experts under the guise of Bolam without assessing to see if the expert opinion was reasonable, responsible and respectable and stood up to logical analysis. Judges have however been more willing to do away with Bolam when its application involved other professions, for example see Edward Wong.

P S Ranjan & Co

All Rights Reserved

May 2020

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