Bolam v Friern Hospital Management Committee

Facts

John Bolam was a voluntary patient at Friern Hospital, a psychiatric hospital. He agreed to undergo electroconvulsive therapy (ECT). The doctor didn't give him any relaxant drugs, didn't use physical restraints beyond holding him in places, and didn't warn him of the small risk of fractures.

During the treatment, Mr Bolam suffered serious injuries, including fractures of both hip sockets. He sued the hospital's management committee in negligence. At the time, medical opinion was divided: some doctors used relaxant drugs or restraints, and others thought they created risks of their own.

Issue

What standard of care does the law expect of a doctor, and how should the court decide whether a doctor fell below it when medical opinion is divided?

Decision

The case was tried before a jury. McNair J directed the jury on the law, and the jury found that the hospital was not negligent.

Reasoning

McNair J's direction is the origin of the Bolam test. Where someone exercises a special skill or competence, the standard isn't that of the ordinary person on the street. It's the standard of the ordinary skilled person exercising and professing to have that skill.

A doctor isn't negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that particular art. That remains true even if another body of opinion would have taken a different view. A doctor isn't negligent merely because others would have done things differently.

On the facts, there was a responsible body of opinion that didn't use relaxants or restraints for ECT, and a body of opinion that didn't routinely warn patients of the small risk. The doctor had acted in accordance with accepted practice.

Why it matters

Bolam set the standard of care for professional negligence for decades. It reflects the idea that courts aren't equipped to choose between competing schools of professional thought.

It has since been qualified in two important ways:

• Bolitho. In Bolitho v City and Hackney Health Authority [1998] AC 232, the House of Lords held that the court must be satisfied that the professional opinion relied on is reasonable and responsible, with a logical basis. In rare cases, the court can find that an accepted practice is negligent.
• Montgomery. In Montgomery v Lanarkshire Health Board [2015] UKSC 11, the Supreme Court held that Bolam doesn't govern advice about risks. A doctor must take reasonable care to make sure the patient knows about any material risks of the recommended treatment and of reasonable alternatives. A risk is material if a reasonable person in the patient's position would attach significance to it, or the doctor knows (or should know) that this patient would. In McCulloch v Forth Valley Health Board [2023] UKSC 26, the Supreme Court held that the Bolam test still decides which alternative treatments are reasonable.

How it comes up in exams

Breach of duty questions involving a professional should follow this order:

1. The standard: the reasonably competent professional in that field (Bolam), applied objectively, so inexperience is no excuse (Wilsher v Essex AHA [1988] AC 1074).
2. Is there a responsible body of opinion supporting what the defendant did? Is it logical (Bolitho)?
3. Is the complaint about advice or consent? If so, apply Montgomery, not Bolam.
4. Then deal with causation: did the breach cause the harm, applying Barnett v Chelsea and Kensington HMC [1969] 1 QB 428?

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