By Charles Foster
(Image: tctmd.com)
There is a dizzying circularity in much medical law. Judges make legal decisions based on the judgments of rightly directed clinicians, and rightly directed clinicians make their judgments based on what they think the judges expect of them. This is intellectually unfortunate. It can also be dangerous.
There are two causes: Judges’ reluctance to interfere with the decisions of clinicians, and doctors’ fear of falling foul of the law.
In some ways judicial deference to the judgment of professionals in a discipline very different from their own is appropriate. Judges cannot be doctors. The deference is best illustrated by the famous and ubiquitous Bolam test, which is the touchstone for liability in professional negligence cases.1 A doctor will not be negligent if their action or inaction would be endorsed by a responsible body of professional opinion in the relevant specialty.
In the realm of civil litigation for alleged negligence this deference is justified. The problem arises when the deference is exported to legal arenas where it should have no place. The classic example relates to determinations of the ‘best interests’ of incapacitous patients. Something done in relation to an incapacitous patient will only be lawful if it is in that patient’s best interests.
Best interests determinations are holistic determinations.
Baroness Hale said, in Aintree University Hospitals NHS Foundation Trust v James2 at [39], that ‘The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological….’ In Re A (Male Sterilisation)3, Butler-Sloss LJ stated that ‘best interests encompasses medical, emotional and all other welfare issues’, and in Re S (Adult Patient: Sterilisation) [2001] Fam 15, Thorpe LJ said that ‘[i]n deciding what is best….the judge must have regard to….welfare as the paramount consideration. That embraces issues far wider than the medical. Indeed it would be undesirable and probably impossible to set bounds to what is relevant to a welfare determination’.
While medical issues (relating, for instance, to the degree of suffering, the capacity for pleasure, the prognosis, the palliative and therapeutic options) will often feature prominently in the best interests determinations, they will never be the only relevant issues. Accordingly the courts should be very cautious about giving a casting vote to doctors.
A very recent decision of the Supreme Court comes worryingly close to giving doctors a de facto right to decide on the fate of patients. The case is An NHS Trust v Y. 5 It concerned the question of whether a court order must always be obtained before the withdrawal of life-sustaining clinically assisted nutrition and hydration from a patient with a prolonged disorder of consciousness. The facts do not matter for these purposes. What is of interest here is the discussion about the relevance of the guidance given by various professional medical bodies.
Lady Black (with whom all the other justices agreed), referred to guidance about treatment withdrawal given by the General Medical Council, the British Medical Association, and the Royal College of Physicians and noted:
‘It is necessary to look in more detail at this body of professional guidance since it has a very important part to play in ensuring the proper protection of patients and in maintaining the confidence of the public in the health care system. Whatever impression might be conveyed by terms such as “guidance” and “guidelines”, the practice set out in the various documents has significant weight. This is perhaps particularly so in relation to guidance emanating from the GMC, which has a special role in providing guidance for the medical profession. It was established by statute, the Medical Act 1983, with the over-arching objective of protecting the public, and is charged with setting and maintaining the standards that doctors across the UK must follow, where necessary taking action in relation to a doctor if he or she is found to be falling below the required standard. Its statutory powers under the Medical Act include power to issue advice for members of the medical profession on standards of professional conduct, standards of professional performance and medical ethics (section 35).’6
Much of the guidance referred to (and this is where the circularity comes in) is mere reiteration of what the medical organisation concerned understands the law to require of doctors.7 Doctors (say the Supreme Court) should do what is in their own professional codes. But what is in the professional codes is there because that is the doctors’ understanding of what the Supreme Court requires.
There are two results: the first is that the real nature of the doctors’ obligation (which is merely to play a part in a holistic determination) has been spared proper scrutiny and exposition because the law thinks that that is the job of the doctors and the doctors think that that is the job of the courts. And the second (because the doctors’ codes do nod to the holistic nature of the required determination, and the consequent need to consult relatives, and so on), is to make the doctors’ code into a definitive statement of the relevant obligations, and accordingly the doctor into the definitive decision-maker.
Judges should judge. The law is their business. It is not the business of doctors. Over-deference to doctors’ judgment is an abdication of judicial responsibility. It risks undermining and constricting the law, and consequently endangering the patients that the law in all its fullness is designed to protect.
References
- Bolam v Friern Hospital Management Committee [1957] 1 WLR 5822. Aintree University Hospitals NHS Foundation Trust v James [2014] AC 591, at [39]
- [2000] 1 FLR 549
- [2001] Fam 15
- [2018] UKSC 46. (30 July 2018). Conflict of interest statement: I represented an intervenor in this case, arguing against the conclusion to which the Court came.
- At [77]
- Eg at [78] –[79]: ‘The GMC’s 2010 guide to good practice draws upon the domestic and European jurisprudence and covers the matters that one would therefore expect. I will not rehearse all those matters here, particularly given that guidance is continuing to evolve, and will simply give a broad indication of the nature and ambit of the document. It provides the doctor with a decision-making model, applicable where an adult lacks the capacity to decide about treatment and care. As part of the decision-making process, the doctor is to:1. make an assessment of the patient’s condition;2. consider what treatments are clinically appropriate and likely to benefit the patient; 3. find out about any valid advance decision made by the patient or anyone who has legal authority to decide for him; 4.as far as practical and appropriate, consult members of the healthcare team and those close to the patient and, when deciding about treatment, take their views into account; 5.take steps towards the appointment of an IMCA where appropriate; 6.attempt to resolve disagreements about what treatment and care would be of overall benefit to the patient, seeking legal advice on applying to court for an independent ruling if agreement is not reached; 7. The guide requires a record to be made of decisions about treatment, and of who was consulted in relation to the decisions. There is a section specifically addressing CANH, particularly stressing the need to listen to and consider the views of the patient and those close to them, and to explain the issues to be considered. The doctor is alerted to the need, in the event of disagreement about CANH, to ensure that the patient or someone acting on their behalf is advised on how to access their own legal advice or representation. Where the patient is not expected to die in any event in hours or days, but the doctor judges that CANH would not be of overall benefit to him, all reasonable steps must be taken to get a second opinion from a senior clinician who is not already directly involved but who should examine the patient. If that is not practically possible in exceptional circumstances, advice from a colleague must still be sought. As to patients in PVS or a condition closely resembling it, the guide says that “the courts … require that you approach them for a ruling”. This is, however, modified in the interim joint guidance of December 2017 which proceeds upon the basis that there will be cases in which no court application is required.’
I must disagree with you when you say, ’[i]n the realm of civil litigation for alleged negligence [the Bolam test] is justified.’ John Bolam should have won his case and received compensation because Dr Allfrey and Friern Hospital should have given him a muscle relaxant or appropriate restraints. Given the expert evidence at the time, Mr Justice McNair dicta that, ‘[p]utting it the other way round, a doctor is not negligent if he is acting in accordance with a [practice accepted as proper by a responsible body of medical men], merely because there is a body of opinion that takes a contrary view’ is confused and absurd. What is a ‘responsible body of medical men’? It could mean just the experts in the court, or a few other medical men, or perhaps it is a large minority, or majority of this mysterious body of medical men. How big is the ‘body of opinion’ who take the contrary view? Does it matter if a mere body of opinion counts for nothing against the mysterious body of medical men? (As in philosophy, judges should avoid the word ‘merely’.) It was known then to any reasonable person that the body of opinion was correct and it very quickly became the universally accepted practice in ECT therapy. Mr Justice McNair firmly rejected the then ‘reasonableness’ test of what would the man on the Clapham omnibus think and placed the mysterious body of medical and professional men in the driving seat.
I could go on as this appalling ‘test’ was deeply flawed then and still is when it is used in civil litigation, complaints procedures, Ombudsmen’s decisions or distorts professional and working decision-making and responsibility. Bolam is still, as you say, ‘ubiquitous’, but in the last few years the courts have rediscovered the reasonableness of the ‘person’ on the Clapham omnibus. The cases you cite, plus others like ‘Montgomery v Lanarkshire Health Board’, are starting to undermine the ubiquitousness of Bolam and disrupt the two vicious circles you describe in your penultimate paragraph. ‘An NHS Trust v Y’ could halt this process by re-establishing a culture where a clique of doctors could be deemed to know best and should decide the fate of patients.
I agree with much of what say but am somewhat puzzled by your acceptance of Bolam for the vast majority of decision-making in medical and professional negligence. There is no place for the Bolam at any level without the further test of reasonableness. As Lord Brown-Wilkinson put it in Bolitho (Deceased) v City of Hackney HA:
‘The effect of the Bolam test is that the defendant must live up to a standard of the ordinary skilled man exercising and professing to have skill. The existence of the practice is not of itself determinative of the issue of the breach of duty. The court has to subject the expert medical evidence to scrutiny and to decide whether the practice is reasonable. The issue of reasonableness is for the court not for the medical profession.’
Keith: many thanks.
Few would share your scepticism about the Bolam test in cases of clinical negligence relating to questions of diagnosis and treatment. The proverbial man on the Clapham Omnibus is unlikely to have a sufficient appreciation of the technicalities of medicine and surgery and the exigencies of clinical practice. Sometimes, of course, the answer to a clinical question will indeed be safely within the province of the Omnibus rider. A classic example is where a swab is left inside a patient. There the rider will have no difficulty in concluding that there was negligence. All experts would come to the same conclusion.
Of course the Bolam test has sometimes been used badly. There has sometimes been inappropriate deference to experts. But those times are long gone. Bolitho emphasised the need to subject expert opinions to logical scrutiny, and judges regularly depart from the views of eminent experts. The proliferation of evidence-based medicine, more than anything else, is sidelining the Bolam test: departure from an authoritative, evidence-based clinical guideline demands strenuous justification. The question of what amounts to a ‘responsible body’ has of course been the subject of a huge amount of judicial and academic discussion. You don’t decide by counting heads: see, eg. De Freitas v O’Brien – a principle obviously necessary in order to prevent the fear of litigation stifling medical innovation.
I’m afraid that I don’t understand what you mean when you say: ‘There is no place for the Bolam [test] at any level without the further test of reasonableness.’ Reasonableness is at the heart of all formulations of the Bolam test – though it is often articulated in terms of ‘responsible’.
Consent cases are different, but even there Bolam is far from dead. Montgomery established that the court must ask itself: first, what risks associated with the procedure were or should have been known to the clinician; and second, whether the patient should have been told about those risks by reference to whether they were material. A risk is material, for these purposes, if, in the circumstances of the case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the clinician is or should reasonably be aware that the particular patient would be likely to attach significance to it Bolam is expressly relevant to the first limb. As to the second limb (from which Bolam has theoretically been banished) it will be an unusual case where the notional ‘reasonable patient’ would think material something that an expert would think immaterial. Bolam has proved indispensable even in consent cases: see the very recent case of Duce v Worcestershire Acute Hospitals NHS Trust for an illustration.
Thanks for your reply.
Firstly, the man on the Clapham omnibus is an ‘ideal’ of reason and rationality; in much the same way Habermas’ ‘ideal speech act’ is a condition of communication that maximises good reason and rationality. Mr Justice McNair instructed the jury that they should not judge those with a ‘special skill or competence’ as they would the man on the Clapham omnibus, because the ‘test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill.’ This is little more than sheer humbug from a class-ridden age of deference. You appear to think that juries are effectively not competent to judge those with special skills on matter of negligence. Either way, if I had been on the jury I would have taken exception to be told, that those with special skills are not like me and that they could not be tested by ordinary standard, or that I did not have the abilities to sufficiently understand their skills to determine whether they had been negligent. (In many respects the jury were treated like Bolam was by his doctors, so there is little wonder that they came to the verdict they had been instructed to make.) I agree with the position attributed to Einstein that ‘you don’t really understand something unless you can explain it to your grandmother.’ (He should have added ‘quantum mechanics aside’.) It is not possible to fully expand upon this position here (it is my turn to rely upon a ipse dixit statement), but I believe a jury that has been presented with all the evidence and arguments, properly directed by a judge (McNair’s summing up was more than a little bias), should be able to use their own reason and judgement to sufficiently understand the skills and actions of most defendant. We have to accept the few occasions this is not possible as it is still the best system.
On the question of ‘reasonableness’ in Bolam, McNair makes only one brief reference to ‘reason’ when he says, ‘Mr. Fox-Andrews [for the plaintiff] also was quite right, in my judgment, in saying that a mere personal belief that a particular technique is best is no defence unless that belief is based on reasonable grounds. That again is unexceptionable.’ McNair then immediately instructs the jury that the ‘real question’ is did the defendants act ‘in accordance with a practice of competent respected professional opinion’? He makes no connection or distinction between this and reasonable grounds, he just leaves this, let us say, interesting philosophically statement hanging. So I am sorry, I do not accept that, as you put it, ‘reasonableness is at the heart of the formulation of the Bolam test’, or that it is in some way ‘articulated in the form of ‘responsibility’’. (In Bolam, ‘responsible’ is seldom used and is not ‘discussed’.) Indeed, within the forty minutes it took the jury to decide their verdict there could have been no time for a discursive reasoned discussion of the arguments and evidence. I am not sure why you do not understand the point I am making about reasonableness, as I think my quote from Lord Brown-Wilkinson and his position in ‘Bolitho’ makes it clear. In short, there is nothing unexceptional about considering the actions of the defendants from the perceptive of the ‘competent respected professional opinion’ so long as the opinion is reasonable and that the issue of reasonableness is left to the courts not the medical profession.
Again, here is not the place to go into the detail of the Bolam case, but the evidence given and arguments of the lawyers and judge were so deeply flawed it beggars belief why it is, as you say, still ‘ubiquitous’ and ‘the touchstone for liability in professional negligence cases.’ So very briefly, much of the evidence and arguments given by the defendants’ counsel and the expert witnesses could have been easily exposed as being false. For example, the risk of acetabular fracture was given by Dr Page as being 1:250,000 per session and the ‘risk of fracture’ by Dr. Bastarrechea (Friern Hospital) was claimed to be 1:10,000. The jury should have been presented with the findings of morbidity for “unmodified” ECT in Lingley and Robbins (1947), Polatin and Lin (1949), Meschan et al (1950) and Dewald et al (1954). Broadly all these studies showed, inter alia, various fractures in about 30+% of patients who had about 8 ECT sessions. They were very common although not usually serious fractures. However, if the jury had been informed of these findings, provided with the records of Friern Hospital (Dr. Bastarrecha must have had them), which if anything were worse than these, and shown the stats for modified ECT, they might have arrived at a different verdict.
It is true that psychiatry at the time was somewhat dominated by the conflicting opinions of medical men like Sigmund Freud and William Sargant (Battle for the Mind). They were however quite united in their personal belief that medical men should not concern themselves with ethics but only their “science” and their own careers. Bolam marks a low point in psychiatry and English law that reflects the values of its time. I agree that Bolam has been modified over the years, medical practice has changed, mental health care is more ethical, and, perhaps more importantly, many patients are better informed and unwilling to be patronised by professionals and judges who might be tempted to continue the Bolam tradition of not having their special skills exposed to the light of reason. Nonetheless, my concern is that the Bolam is still alive and well in complaints procedures, Ombudsmen offices and the professions. The vast majority of medical and professional malpractice complaints are dealt with by these bodies. Of course, Bolam is but one influence upon them, but, I can assure you, it is used to block reasoned argument and frustrate complaints. (It is also used to defend the practice of unmodified ECT in some countries (usually British Commonwealth) and all manner of men with special skills.) The Bolam test also defaults to a standard that can be supported by those with special skills (and of course interests) which may fall short of what is reasonably acceptable. This is a constant problem within quasi-judicial bodies that often take every opportunity to accept unchallenged the lowest standards of expert opinion. One of the problems with Bolam is that its ‘natural’ home is in bureaucracies and hierarchical organisations, which just about ensures its continued existence.
Lastly (or as you might be thinking – ‘at last’), I happily accept that the Bolam test is not what it was, but, to put my other hat on, at a time of developing technologies like machine intelligence, deep learning, etc., are raising issues of “black box” decision-making, systems agency, responsibility, reason, etc., we need to look at the Bolam test within this new context in order to ensure that the mistakes of past are not repeated.
I have been ranting longer enough. I blame GWR for delayed trains.
Keith: thank you.
You appear to be conflating two entirely different issues :
(a) Should juries rather than judges determine the issue of whether or not there has been a breach of duty?
(b) What does it mean, as a matter of substantive law, to say that a professional person has been negligent in the performance of their professional duty?
(a) I was discussing Bolam which included the issue of the jury and how the judge directed them. Bolam was a jury case so I discussed the evidence, arguments, judge’s summing up and not least the juries time of deliberation. If these issues had been better handled, the verdict, I believe, could well have been for John Bolam. Friern Hospital would not doubt have been given leave to appeal, and if the verdict had been overturned we would no doubt be discussing the decision of the appeal court or perhaps the Lords. Assuming the appeal court was given the proper evidence and arguments, I believe the appeal might well have been dismissed and we might have heard very little about the Bolam test.
You were confused about what McNair had said about the man on the Clapham omnibus, so I spent some time on this issue which touched upon the very nature of jury system. My position is that I believe juries given proper evidence and guidance do have, as you put it, ‘sufficient appreciation of the technicalities of medicine and surgery and the exigencies of clinical practice’ to decide a matter of negligence. At no point did I say whether it should be juries or judges that determine the issue of whether or not there has been a breach of duty. Again, I said this is an issue of ‘reasonableness’ which, following Lord Brown-Wilkinson, I believed should be left to the ‘courts’. I was not favouring juries, but again if the matter is decided by a jury I do not believe they are, or should be treated as if they are, incompetent of understand and deciding on such matters. Indeed, a belief that juries are not competent will only increase the number of appeal requests from defendants who might believe, perhaps with good reason, they will have a better chance with judges who may believe they are more competent to understand their skills. A plaintiff, on the other hand, might be discouraged from an appeal because of this elitist bias in system. However, let me make it very clear that I believe these matters are for the ‘courts’ and that I am reasonable happy to live with the merits and demerits of the different courts.
(b) Adding ‘professional’ only confuses the issue which may account for our differences. (Here is certainly not the place to go into the history and power structures of the professions.) If you mean something like ‘someone doing a paid or unpaid job in a clinical setting or some other critical safety setting’, we could, but not here, discuss the issue at more length.
In brief, however, I think my criticism of how this issue is treated in Bolam is clear enough for a ‘post’. As I touched on, my concern is how it is used by quasi-judicial bodies. (It will be these bodies, at least in the initial stages, that might well deal with issues arising out of An NHS Trust v Y.) Unfortunately they have little to do with the law, although many of these bodies are presided over by lawyers. The spirit of Bolam is often invoked to frustrate complainants and reassure negligent professionals and bureaucrats. When dealing with these bodies it is best not to get too bothered by the law as it is seldom followed and, when stated by the complainant, it is usually ignored. Apart from the legal Panjandrums at the top, it is a world few lawyers enter or have any knowledge or interest in.
I also touched upon my other interest where a believe rulings like Bolam have had their day. Instead of deciding whether a defendant is negligent by determining whether they acting with an acceptable level skill that is recognised by a responsible body of skilled professional persons, etc., the ‘responsible body of skilled profession persons’ should be viewed as a ‘system’ of knowledge, technology, security, reason, skills, ethics, etc.. (Evidence based medicine is moving in this direction.) We can then, for example, more easily understand when individuals become what is termed ‘epistemic enslaved’ and as a consequence may have made an error that cannot be treated as being negligence (the defendants in Bolam might have been epistemically enslaved). As automated technology increases, a person may be subject to ‘automation bias’, which may throw the issue of responsibility and negligence onto the software engineers, and so and so forth.
Bolam is an anachronism of the 1950s and the notion that we can still use this ‘test’ is an escape from reality. Science, technology, social structures, ethics, systems, information band widths, etc. have all changed. How humans behave in complex technological environments is not a matter that can be settled by whether an individual did or did not adhere to a ‘body of professional opinion’, whatever that might mean now. I did not attempt to answer (b) beyond my plea for ‘reason’, I only gave a few reasons why it has had its day and describe where it is being used in quasi-judicial bodies.
I am no longer stuck on a train so cannot spend any more time on this issue. I am sorry for any confusion but that, as you know, is the way of ‘posts’.
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