Medical profession has its own ethical parameters and code of conduct. doctor, and in the first instance McGhee had been wrongly citied. was determined that it was more than reasonable foreseeability, proximity was Not VAT Registration No: 842417633. Disclaimer: This work has been submitted by a law student. It is unlikely that Bolam will be abolished entirely as the evidence above shows the problems that are likely to occur if the courts took the decision to abolish the ruling. 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. This profession is rendering a noble service to humanity and has sustained itself on public trust. 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. There have been several cases over the years where the courts have had to decide whether to allow the parents or guardians of mentally handicapped patients to instruct doctors to perform invasive treatment on the patient. This is mainly due to certain facts that lead to the exploitation of the patients by the hospital authorities by charging a huge amount for treatments and lack of care from the part of doctors concerned. In proving Under the Bolam test, however, determining the standard was seen by the courts as essentially a matter for the medical profession, to be … A landmark case in English medical law and, it is submitted, one of the most radically controversial decisions in history. 2004. Registered Data Controller No: Z1821391. In this blogpost, Sreeraj.K.V, Student, Government Law College, Kerala writes an article on Analysis of medical negligence in the field of law. Negligence is defined as ‘a failure to secondary victims (Sowersby, 2014). Reference this. There are certain landmark judgments in cases dealing with medical negligence. It follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation. Therefore, this asymmetry necessitates for frontier demarcation which is mooted in law and ethics. . Similar findings were made by Macillop et al (1988) and Sutherland, Lockwood and Till (1990) in relation to patients suffering from cancer. there were arguments of public policy documents, so to determine negligence the Specifically, the second limb of the test warrants that the detriment endured has a causal link to the negligent act. Blyth v Bloomsbury Health Authority  laid down the things that a doctor ought to consider in determining what information should be disclosed. Moreover, completely neglecting a patient’s desires could potentially blur the distinction between beneficence and malfeasance. College Essay Guy goes over how to write a great college essay and the five tips for revising a college essay. Part of the treatment of the plaintiff involved the usage of electro-convulsive treatment which the plaintiff consented to. Reference guide to consent for examination or treatment. Moreover, it appears as though the judiciary are too enchanted by the specialty and this beclouds the real issues of external evaluation of medical evidence. A simple definition given for the term ‘medical negligence’ is that it is simply but a failure to exercise due care. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. A nurse should understand their principles of duty and Personal Narrative Essay: My Things To Go Out For Camping, Constitutional Courts In The United Kingdom. obligations and to consider a deontological perspective in practice (Mandal, et al., 2016). Cases such as Re W and Re KB demonstrate the power of the court to order the patient to be force fed. 23rd Jul 2019 The Delight of Everyone. these acts are a lack of being unmindful, forgetful and inconsiderate (Raz, 2010). Nonetheless, upon dissecting the case it is evident that whilst their Lordship’s were cognisant of patient autonomy in the face of a growing paternalistic approach, there appeared to be a clear hesitance to put a halt to this apparent erosion of patient trust. Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of LawTeacher.net. involvement with others is complicated because the duty of care exists the Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of LawTeacher.net. Referred to since simply as the Bolam test it determined that a member of the medical profession will not be guilty of negligence if he or she exercised reasonable care in accordance with a practice accepted as proper by a responsible body of medical opinion. The Department of Health in 2001 also recognised the right to informed consent which resulted in the publication of an advisory leaflet entitled Reference guide to consent for examination or treatment, which was available to anyone about to undergo any form of medical treatment. Don't already have an Oxford Academic account? In the majority of the cases, the doctor will be responsible only for his own acts, but in certain other cases, doctors will be vicariously liable for the acts done by others. Causaton and Oppertunity In Tort. Moreover, Brazier has recently  advocated for patients to assume responsibility as quickly as they are to invoke their rights. To establish that trust you must respect patients’ autonomy—their right to decide whether or not to undergo any medical intervention . on another person (Sowersby, 2014). The claimant remarked that consultants should have awaited the result and thus avoided any needless damage to her left vocal cord. The liability of the doctor arises when the patient or his representatives must be able to prove burden of negligence upon him. It is also mentioned by the experts that Bolam test is just one of the test in dealing with negligence, the test gains relevance only when there is a situation which leads to the breach of duty from the part of the medical practitioner. In the case of Smith v Tunbridge Wells Health Authority 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. The highly dubious and academically contested area of the Bolam case lies in the reasoning applied to the second limb of the test. The Bolam test takes account of evolving standards of care once collectively expressed in practice. Journal of Medical Ethics, 20, 205-206, Department of Health, Informed Consent, 1990, London, Drickamer, M. A. injury to happen, it is generally the person harmed that must prove that the 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. Find out in this blog. 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. This is not an example of the work produced by our Law Essay Writing Service. Moreover, whilst there were schools of thought advocating the use of relaxants, there also existed a vehement conviction of the clinician’s modus operandi. The patient in this case displayed the symptoms of Tuberculosis, but the doctors could not rule out several other illnesses. Medical Law Other fields face a more stringent analysis by judges in an effort to guarantee that expert testimony is reasonable under the circumstances. Though, in this case it could be asked could the patient have suffered three-fold test needed to be established (Hartshorne, 2007).For this to exist there has to a 11th Feb 2020 The Bolam test is an However contrary to Nurses are duty It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide, This PDF is available to Subscribers Only. Conclusion So, what does this mean to nursing This was introduced was sustained through negligence in his duty of care (Bryden & Storey, 2011). 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. when forming financial decisions (Hartshorne, 2007). Free resources to assist you with your legal studies! . Stauch, M., Wheat, K. & Tingle, J., 2003. The Consumer Protection Act 1986, enabled a number of patients to file cases against doctors. Wrong treatment due to the wrong diagnosis, Patient is not provided with proper papers like reports, prescription and discharge summary. did they practice non- maleficence, is this just behaviour. In determining the “standard”, the court used the Bolam test. Several researchers have conducted studies to determine the comprehension of patients in relation to information they have been given about their conditions. Dowie, I., 2017. The Royal College of Surgeons were also acutely aware of the need for better information to be given to patient’s and produced their own advisory leaflet in 1997 entitled The surgeon’s duty of care. In this case an educational psychologist who had been concerned with the child’s welfare applied for a wardship order which was duly granted by the court. Judges sense the burdens and stresses entangled in this demanding discipline and seemingly append excessive significance on these issues. The Bolam case concerned a depressed patient who was voluntarily undergoing electro convulsive therapy at a mental health institution. This paper questions whether the ‘Bolam’ principle needs to be discarded or re-interpreted in the modern context of health care. Disclaimer: This work has been submitted by a law student. Lord Scarman recognised, in this case, the therapeutic privilege which entitles a doctor to withhold information from a patient. Indubitably, it is an arduous task to strike a balance between the best interests and wishes of the patient. In this case he gave a hypothetical account of when he would regard a doctor to not be held liable. These three elements 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.
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