judicial reluctance to challenge clinical decisions

8/10/2019 Judicial Reluctance to Challenge Clinical Decisions

1/21

TABLE OF ABBREVIATIONS

AWIA- Adults with Incapacity (Scotland) Act

ECHR- European Convention on Human Rights

HRAHuman Rights Act

MCA Mental Capacity Act

NHS- National Health Service

Judicial reluctance to challenge "Clinical" decision-making prejudices

patients. It encourages a medicalised view of best interests and leave

to doctors decisions which are to ethical and social concern

1.0 Introduction

Whenever a clinical decision comes up for questioning in court, it is usually on

account of breach of professional duty of care or contravention of statutory

provisions. According to the 2011/12 Reports by the NHS Litigation Authority,

there has been a steady rise in clinical claims against NHS bodies over a period

of 3 years from the last report of 2010/11 year1. In the 2011/12 year alone,

there were 9,143 clinical claims representing a rise of 5.6% from the previous

year. The figures would of course be higher if non-NHS claims were to be

considered.

This unpalatable trend calls for interrogation of a number of legal issues relating

to the efficacy of clinical decisions. A key issue is how courts in England treat

claims that call into question clinical decisions. In particular, the discussion

1NHS Litigation Authority, Report and Accounts- 2011/2012 (NHS 2012)http://www.official-documents.gov.uk/document/hc1213/hc02/0215/0215.pdf accessed

12th August 2013
http://www.official-documents.gov.uk/document/hc1213/hc02/0215/0215.pdfhttp://www.official-documents.gov.uk/document/hc1213/hc02/0215/0215.pdf


2/21

critically analyses the legal, ethical and social concerns questions that courts

take into account in judging clinical decisions in respect of adult patients.

2.0

Contravention of statutory provisions

2.1 The laws

Statute in the UK has stepped in to regulate clinical decisions based on the

capacity of the patient to take choices in clinical decision relating to them as

well as the patients basic human rights2.

2.1.1

Capacity of the patient

In England and Wales the issue is governed by the Mental Capacity Act 2005,

(MCA) and in Scotland by the Adults with Incapacity (Scotland)Act 2000 (AWIA).

Capacity is determined based not just on age but also that persons

[ability] to make a decision for himself in relation to the matter because of an

impairment of, or a disturbance in the functioning of, the mind or brain.3

In the context of clinical decisions, these laws stipulate the criteria and procedures

to be followed in making decisions when a patient lacks capacity to make clinical

choices independently. They also provides for decision making by proxies or

representatives where the patient lacks capacity. The 5 guiding principles as set out

in MCA are:4-

- A patient is to be assumed to have capacity unless the contrary is proven

- Practical steps must be taken to assist a person make a decision

- All clinical decisions must be in the best interest of the patient

2General Medical Council Consent: Patients and Doctors Making Decisions Together(2013)http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp

accessed 18thAugust 2013

3Section 2 of MCA

4Section 1 of the Act
http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asphttp://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asphttp://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asphttp://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp


3/21

- Unwise decisions is not synonymous to lack of capacity

- Clinical decisions must first consider availability of a less restrictive

alternative

Additionally under Section 44 of the MCA if a clinical decision or act amounts to ill-treatment or willful neglect, it is an offence punishable by imprisonment for a term

not exceeding 12 months or a fine not exceeding the statutory maximum or both5

Northern Ireland does not have a statute regulating this area of medical practice

but there is reliance on the common law principle that the clinical decisions must be

made in the best interest of the patient.

2.1.2 Human Rights of the Patient

In assessing clinical decisions there may also be considerations necessary under the

Human Rights Act, 1998 (HRA) which gave effect to the European Convention on

Human Rights (ECHR). The HRA has domesticated the following provisions of the

Convention which are of relevance to clinical decision making:

The right to life and positive duty on public authorities to protect life6.

The right to be free from inhuman and degrading treatment7.

The right to security of the person8.

The right to respect for private and family life9.

The right to freedom of thought, conscience and religion10.

5Section 44(3)(a)6Article 2

7Article 3

8Article 5

9Article 8

10Article 9


4/21

The right to be free from discrimination in the enjoyment of these other

rights11.

2.2 Judicial Interpretation

2.2.1 General Rules on interpretation

Beyond the basic parameters set by the Interpretation Act 1978 in interpreting

statutes, including the foregoing clinical decision statutes, courts in England are

guided by four judicial rules i.e. the literal, golden, mischief and purposive approach

rules. Under the Literal rule the words in the statute are given are given their

ordinary meaning.12 The golden rule comes into play where the literal rule would

result in an absurdity i.e. the court gives a meaning that corrects the absurdity. 13

The mischief rule only applies where there is ambiguity in the statute14. It allows

court to interpret a provision in a manner that suppresses the wrong (mischief) that

the legislator had intended to cure15.

These rules have guided courts in England in interpreting a number of statutory

principles relating to clinical decisions. Some of the principles and how the courts

treated them is discussed below

2.2.2 The question of capacity

Whilst the Act states that the decision on capacity is to be made irrespective of age,

section 2(5) of the Act provides that the safeguards under the Act are only in

respect of a people aged 16 and over.

11Article 14

12Fisher v Bell [1961] 1 QB 394

13Adler v George [1964] 2 QB 7

14Re Sussex Peerage[1844]EngR 822

15 Royal College of Nursing v DHSS [1981] 2 WLR 279
http://www.bailii.org/uk/cases/UKHL/1980/10.htmlhttp://www.bailii.org/uk/cases/UKHL/1980/10.html


5/21

The pre-eminence of capacity was underscored in the case of W Healthcare NHS

Trust vs. H16where a 59 year old lady had many years earlier made statements

indicating that she did not want life support treatment as well as other forms of

treatment . When she suffered a critical condition of multiple sclerosis and hence

lost capacity, the court upheld her capacity-days resolve not to be put on life

support17.

In another case ofAn Hospital NHS Trust v S18 the court pointed out that the

inability to understand the nature of a form of treatment was not a ground for

incapacitation. In this case an 18 year old autistic patient was to undergo peritoneal

dialysis. The hospital however moved to court to be exempted from the treatment

arguing that in his condition the patient did not understand and would not

cooperate with the treatment. The court held that just because someone did not

understand a form of treatment did not mean they werent entitled to it.

2.2.3 Interpretation of Best Interest in clinical Decision

Section 1(5) of the MCA requires that a clinical decision taken for or on behalf of a

person who lacks capacity must be done, or made, in his best interests. In the case

of An NHS Trust vs. Ms D19 a hospital approached court seeking declarations that

Ms D (a 32 year old Patient) who was suffering from a terminal condition known as

mitochondrial cytopathy lacked capacity to make decisions regarding her future and

in particular the nature of her medical treatment. The claim also sought a

declaratory order that it was not in the best interest of the patient to continue

receiving further treatment to prolong her life. The family disagreed.

16[2005] 1WLR 834

17 However note that the court permitted a general treatment by artificial nutrition and

hydration which the hospital argued were not covered by her earlier declarations

18[2003] EWHC 365 (Fam)

19[2005] EWHC 2439 (Fam)


6/21

The court following previous decisions in NHS Trust v Wyatt20andR v- GMC and

others21noted that the key considerations in such a case included issues of human

dignity and sanctity of life. It was however noted that the two are not always

compatible and that what is in the best interest goes beyond medical considerations

to issues such as welfare and emotional issues. The court had to balance the

benefits or disbenefits, advantages or disadvantages to Ms D if the orders sought

were to be granted. The court stating that focus of best interest should be on the

patient and not the wishes of the family saw no benefit of prolonging the patients

life if she was to die in a few days. This is known as the balance sheet approach in

ascertaining the best interest of the patient22.

2.2.4 Sanctity of life consideration

where a clinical decision goes to the very life of the patient e.g. in case of

euthanasia, the court have upheld the sanctity of life and stated that the intention

of the decided treatment must not be to end life but to alleviate pain and suffering.

This was the position in the case of R vs. Cox23 where a rheumatologist,

administered potassium chloride, a lethal substance with no analgesic or

therapeutic effect, to a terminally ill woman of 70. He was charged with murder and

his defence was that he had intended to end the patients suffering.However his

prescription for the treatment led to the conclusion that his intention was otherwisehence he was convicted.

20[2004] EWHC 2247 (Fam)

21[2004] EWHC 1879 (Admin)

22Theresa Joyce, Guidance on Determining the best Interests of Adults who Lack theCapacity to Make a Decision (or Decisions) for Themselves [England and Wales] (British

Psychological Society, 2007)

http://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdfaccessed 18th August 2013

2312 BMLR 38
http://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf%20accessed%2018th%20August%202013http://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf%20accessed%2018th%20August%202013http://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf%20accessed%2018th%20August%202013http://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf%20accessed%2018th%20August%202013


7/21

In the case of Airedale NHS vs. Bland24 the court had to among other things

determine whether a clinical decision to withdraw feeding tube treatment to prolong

life of an accident patient amounted to an act leading to death which is unlawful.

The court found that it was not since the feeding tube was a medical treatment and

it would be proper to withdraw it if there was no chance that the patient would get

better.

2.2.5 Alternative Treatment

In the case of Re Ms B vs. NHS Hospital Trust25 the court held that doctors are

under an obligation to respect the refusal of treatment by an adult with capacity

and to find alternative treatment to meet the patients wishes. This is in congruence

with the requirement of Section 1(6) of the MCA.

2.3 Tendency by courts to uphold the clinical decisions

Majority of court judgments relating to clinical decision appear to give clinical

professionals an upper hand. For instance it was apparent in Re A (Male

Sterilization)26that where the court is asked to decide on withholding or withdrawing

a treatment, it will mostly take into account the opinion of a responsible medical

body of opinion. In another case of Re G (Persistent Vegetative State)27 the court

concluded that ultimately the responsibility to decide which treatment is clinically

indicated and should be administered rests with the doctor.

These court decisions and the others discussed above where there is qualification of

sanctity to life to be tempered with quality and dignity of life as well as the need for

24[1993] 1 All ER 821

25[2002] EWHC 429 (Fam)

26[2000] FCR 193; See also Re S (Adult Sterilization) [2000] 2FLR 389 and health andSocial Services Trust vs. PM & Anor [2007] NIFam 13 (21stDecember 2007)

27[1995] 2 FCR 46


8/21

specificity in a previous declaration of unwanted treatment are all indicative of the

classical position held by courts in England on the test of professional duty of care

in medical treatment. The position emanated from the case of Bolam vs. Friern

Hospital Management Committee28(the Bolam principle) is discussed in detail below

under the second consideration in clinical decisions- the professional duty of care.

3.0 Breach of Duty of care

3.1 General rule

Clinical negligence falls in the pigeon-hole of tort law (delict in Scotland) or

generally breach of a duty of care29. The allocation of liability in this area of law

is generally outlined in the classical case of Donoghue vs. Stevenson30where

lord Atkinson stated in part that

You must take reasonable care to avoid acts or omissions which you can

reasonably foresee would be likely to injure your neighbour. Who, then, inlaw, is my neighbour? The answer seems to be persons who are so closely

and directly affected by my act that I ought reasonably to have them incontemplation as being so affected when I am directing my mind to the acts

or omissions which are called in question

Proof of a claim in negligence therefore has three key elements; the existence of

a duty of care, an act or omission which amounts to breach of that duty and

harm arising from the breach.

The exact level and nature of application of this test depends on the

circumstances of the case. It is for this reason that courts in England while

guided by the general rule, often have slightly varied considerations where the

negligent act or omission was committed in line of professional duty; i.e.

professional negligence which includes clinical negligence.

28[1957] 1 WLR 582

29Daniel Bryden, Ian Storey Duty of Care and Medical Negligence(2011) 11 (4) Continuing

Education in Anaesthesia, Critical Care & Painhttp://ceaccp.oxfordjournals.org/content/11/4/124.full.pdf+htmlaccessed 13thAugust 2013

30[1932] UKHL 100
http://ceaccp.oxfordjournals.org/content/11/4/124.full.pdf+htmlhttp://ceaccp.oxfordjournals.org/content/11/4/124.full.pdf+htmlhttp://ceaccp.oxfordjournals.org/content/11/4/124.full.pdf+html


9/21

3.2 Professional negligence and how it varies from the general rule

In adjudging an impugned professional decision, courts deem professionals to be

under the duty to act both with care and skill31

. Where a professional is involvedthe duty is deemed to included an implied (where not express) duty to serve

with skill.32The scope of the professional duty was outline in Midland Bank Trust

Co. v Hett, Stubbs and Kemp33 where the court stated;

The classical formulation of the claim in this sort of case as 'damages for

negligence and breach of professional duty' tends to be a mesmeric phrase.

It concentrates attention on the implied obligation to devote to the client'sbusiness that reasonable care and skill as if that obligation were not only a

compendious, but also an exhaustive, definition of all the duties assumed

under the contract created by the retainer and its acceptance. But, of course,

it is not. A contract gives rise to a complex of rights and duties of which theduty to exercise reasonable care and skill is but one

In the absence of expressly contractual or statutory provision the skill in

question is to be assessed on the test of reasonableness. For instance in Edward

Wong Finance Co. Ltd. v Johnson Stokes & Master34, a firm of solicitors had

completed a mortgage transaction in "Hong Kong style" rather than in the

English style. According to the court even though this style was almost

universally adopted in Hong Kong did not make it reasonable or responsible

since it failed to guard against the risk of fraud. Thus, the solicitors were liable

for negligence because they should have reasonably taken precautions against

an obvious risk.

31John L Powell QC, Professional Negligence: The Changing Coastline Of Liability

www.4newsquare.com/Files/PDF/Article/JP%20article.doc accessed 17thAugust 2013

32Ibid

33[1979] Ch. 384 at 434

34(1984) 1 AC 296
http://www.4newsquare.com/Files/PDF/Article/JP%20article.dochttp://www.4newsquare.com/Files/PDF/Article/JP%20article.doc


10/21

A decision of the House of Lords in Bolitho v City and Hackney Health

Authority35is however indicative of a more lenient treatment of professionals by

courts when it comes to medical negligence. In the case, a doctor failed to

attend to a patient delegated the care of the patient to her junior (another

doctor). The junior too did not attend to the patient leading to complications and

death of the patient. The Court, persuaded by the Bolam principles36held that a

judge is seldom right to reach a conclusion that the views genuinely held by a

competent medical expert are unreasonable. This leads us to a discussion on

what the Bolam principles entail and what it means in respect of clinical

decisions which are challenged on the basis of breach of duty of care.

4.0 Bolam Principles in respect of Medical/Clinical Duty of Care

4.1 Background

Bolam vs. Friern Hospital Management Committee37 was a 1957 case Mr. Bolam

was a patient at a mental health institution run by the Friern Hospital Management

Committee. He agreed to undergo an electro-convulsive therapy. However during

the procedure the doctors did not administer on him any muscle relaxant nor was

his body restrained. Consequently his body flailed and convulsed during the

operation thereby causing him body injuries and fractures. In his claim against the

hospital, he argued that the hospital had been negligent in failing to take the

precautionary measures and not warning him of the potential risks.

The claim was dismissed on account of the fact that medical opinion tendered

during the hearing, at that time the hospital had acted within acceptable

parameters of medical electro-shock practice. Specifically McNair J stated in part

that a medical practitioner would not be held negligent if he;

35(1997) 4 AER 771

36From the Bolam caseabove n2837[1957] 1 WLR 582


11/21

has acted in accordance with a practice accepted as proper by a responsible

body of medical men skilled in that particular art. I do not think there is

much difference in sense. It is just a different way of expressing the same

thought. Putting it the other way round, a man is not negligent, if he is

acting in accordance with such a practice, merely because there is a body of

opinion who would take a contrary view.

4.2 Endorsement of the Bolam principle

The decision subsequently became the yard stick for most claims in medical

negligence where clinical decisions are called into question. It was endorsed in

among other decisions in Maynard v West Midlands Health Authority38where Lord

Scarman stated that where the acts of a practitioner whose actions have received

the seal of a professional body, it is not open for a judge to make a finding of

negligence merely because of the existence of contrary opinion from another

professional body.

It has also guided the decisions of court where opinion is divided. For instance in

Hucks v Cole39 , a doctor failed to treat a patient who was suffering from septic

places on her skin with penicillin even though he knew there was a risk of puerperal

fever. Evidence tendered in court revealed that there was conflict of medical opinion

on the propriety of the doctors omission. Sachs LJseeing a potential lacuna in the

area of medical practice stated that

When the evidence shows that a lacuna in professional practice exists by whichrisks of grave danger are knowingly taken, then, however small the risk, the

court must anxiously examine that lacunaparticularly if the risk can be easily

and inexpensively avoided. If the court finds, on an analysis of the reasons givenfor not taking those precautions that, in the light of current professional

knowledge, there is no proper basis for the lacuna, and that it is definitely not

reasonable that those risks should have been taken, its function is to state thatfact and where necessary to state that it constitutes negligence. In such a casethe practice will no doubt thereafter be altered to the benefit of patients."

4.3

The problem with Bolam

4.3.1 The criticism

38[1985] 1 All ER 635

39(1993) 4 Med. L.R. 393


12/21

Over time though the Bolam test has come under criticism and has led to a number

of dissenting decisions.40 Key among these is the perception that Bolam permits

medical practitioners to set their own standards. Under the principle what ought to

be done is that which a body of medical practitioners says is done in the practice.

While this may be the appropriate approach in matters involving technical medical

consideration such as proper diagnosis it may be handicap where the matter in

question is of pure conduct e.g. information disclosure or processes f or obtaining

consent to a clinical decision41. Some authors have argued that such matters

should be left to the determination of courts own assessment and not a body of

medical persons42

4.3.2 Should issues of disclosure and information to a patient be a matter of

professional consideration

The first key case to signal a move away from Bolam was Sidaway v Board of

Governors of the Bethlem Royal Hospital43 in this case a neurosurgeon took a

patients consent for cervical cord decompression, but did not did not disclose the

fact that in less than 1% of the cases, the operation caused paraplegia. She

developed paraplegia after the spinal operation and sued in a clinical negligence

claim premised on non-disclosure. While the majority of the House of Lords held

that the quantum of disclosure was a matter of clinical judgment, Lord Bridge in

dissenting opinion stated as follows;

Whether non disclosure in a particular case should be condemned as a breachof the doctors duty of care is an issue to be decided primarily on the basis of

expert medical evidence, applying the Bolam test.

40Ash Samanta, Jo Samata, Legal Standard of Care: A Shift from the Traditional BolamTestwww.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdf accessed 20th August

2013

41Ibid

42Teff H. The standard of care in medical negligence moving on from Bolam? (1998) 18Oxford J Legal Studies;

43[1985] 1 All ER 643
http://www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdfhttp://www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdfhttp://www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdfhttp://www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdfhttp://www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdf


13/21

This failing of Bolam appears to have been cured by the requirement of Section

1(3) of the MCA which requires that a person is not to be treated as unable to

make a decision unless all practicable steps to help him to do so have been taken

without success. Assistance to a patient to take a decision may be in a wide sense

be interpreted to have the same meaning as the principle of informed consent

known to American law. In a 1972 California case of Canterbury v Spence44 the

claimant, a 19 year old patient consulted the doctor because of severe pain

between his shoulder blades and was advised to undergo surgery after a

myelogram showed distortion of the thoracic vertebrae. Before the procedure, the

patient did not ask any questions the proposed treatment. After the operation he

suffered incontinence and had difficulty in walking. He sued the doctor in negligenceand the judge stated

The patients right of self decision shapes the boundaries of the duty to

reveal. That right can be effectively exercised only if the patient possessesenough information to enable an intelligent choice. The scope of thephysicians communications to the patient, then, must be measured by the

patients need, and that need is the information material to the decision.

4.3.3 Is Bolam applicable to ethical questions

The Decision in Re F45 is among the cases that shows the deficiency of Bolam in

ethical issues. The issues in the case was whether sterilization should be performed

in a 36-year-old patient who had a mental age of five. Following the rule in Bolam,

the Court held that a medical practitioner

can lawfully operate on, or give other treatment to, adult patients who areincapable, for one reason or another, of consentingprovided that the

operation or other treatment concerned is in the best interests of such

patients

To this end Bolam has been criticized for elevating the role of doctors in making

clinical decision to that of a moral arbiter46. It is seen as placing undue reliance on

44464 F.2d 772 (D.C. Cir. 1972).45Re F (Mental Patient: Sterilisation) [1990] 2 AC 1


14/21

medical testimony so much so that it defeats the very essence of the best interest

of the patient. There has therefore been call to subject clinical decisions, acts and

omissions to the traditional reasonable standard of care and that it should be left to

the court to define what is reasonable47.

4.3.4 Revision of the position by Bolitho v City & Hackney Health Authority48

In the dispute the patient had suffered catastrophic brain damage as a result of

cardiac arrest caused by respiratory failure. The hospitals senior registrar did not

attend the patient. In her defence as she held the view that that medicalintervention, under those particular circumstances, would have made no difference

to the end result any way. This view was supported by the opinion of renowned

body of medical professionals. Lord Brwone-Wilkinson in allowing the claim, went

beyond the stipulation in Bolam and held that noted that

In particular, in cases involving, as they so often do, the weighing of risks

against benefits, the judge before accepting a body of opinion as being

responsible, reasonable or respectable, will need to be satisfied that, in

forming their views, the experts have directed their minds to the question ofcomparative risks and benefits and have reached a defensible conclusion on

the matter

Bolitho therefore propounded a two tiered process in application of Bolam. First

step which is largely consistent with Bolam as set out is to consider whether the

clinical decision taken has any professional backing from a body of recognised

practitioners in the area of medicine. The second step is to satisfy the court that

such professional opinion relied on takes into account a risk analysis or the balance

sheet assessment of the best interest of the patient. This later stage provides an

46Teff H, above n41

47Samanta, above 39

48[1997] 4 All ER 771


15/21

avenue for consideration of ethical and social concerns that arise from clinical

decisions.

4.3.5 Endorsement of Bolitho

The case of Penney, Palmer and Canon v East Kent Health Authority49is among the

cases that appear to have adopted the thinking in Bolitho. The case involved an

error in a syto-screen which showed that the patients did not have cervical cancer

yet subsequently they developed the cancer. The trial judge discredited the expert

evidence tendered stating that they had anomalies since taking into account the

potentially disastrous consequences of a mistaken identification, a reasonably

competent cyto-screener would have classified the smear as borderline

Here the judge was addressing itself to more than just what the experts would say.

He went beyondwhat is done and addressed himself to what ought to be done.

Needless to say, on appeal, the court of appeal upheld his decision and restated

Bolitho as follows

In resolving conflicts of expert evidence, the judge remains the judge; he is

not obliged to accept evidence simply because it comes from an illustrioussource; he can take account of demonstrated partisanship and lack ofobjectivity

Marriott v West Midlands Health Authority 50was a further endorsement of this new

approach that insists on a risk analysis of the position defended by a body of

experts. The pursuer in this case suffered head injuries after a fall and was taken

to hospital for investigations, and was discharged. However, at home his condition

worsened. It turns out he had suffered an intracranial bleeding which the GP did not

take account of. The injury led to residual paralysis and a resulting speech disorder.

49[2000] Lloyds Rep Med 41

50[1999] Lloyds Rep Med 23


16/21

The defendant through expert witnesses tried to show that the decision to leave the

plaintiff at home could be supported on the grounds that the risk of an intracranial

lesion was negligible. The trial judge, finding for the plaintiff, said that although the

risk was very small,

The consequences of things going wrong are disastrous to the patient. In suchcircumstances, it is my view that the only reasonably prudent course [would be] to readmit for further testing and observation.

The judge even pointed out that that a readmission of the patient would have been

appropriate as facilities for further investigation were relatively easily available. The

Court of Appeal readily approved of this decision on the basis of an appropriate

judicial exercise in determining the required standard of care by using the risk

analysis approach of Bolitho.

5.0 Conclusion

The discussion hereinabove presents what may be summarized as a debate on how

courts in England in the exercise of their jurisdiction should treat clinical decisions

said to be founded on medical practice. The assessment has to be done by courts

one way or the other when dealing with cases relating to breach of statutory

provisions on medical consent or claims in medical negligence arising from clinical

decisions in respect of adult patients. Put another way, should courts take medical

expert view as being absolute in adjudging the propriety of clinical decisions?

There are two divergent case law propositions on this issue. The classical position

propounded in Bolam vs. Friern Hospital Management Committee51 appears to

suggest that the court should be satisfied with an explanation given for any

impugned clinical decision provided it is supported by the expert opinion of a

recognised medical body. This view however has a couple of key failings; first it

overlooks the fact that not all clinical decisions can be tied to technical expertise of

medical practitioners. An example is the failure to grant adequate information

51[1957] 1 WLR 582


17/21

regarding an operation. The approach also unduly renders expert medical expert

opinion infallible and free of any ethical and social concern considerations.

The second view which corrects the position is evident in the case of Bolitho v City

& Hackney Health Authority52

which mandates the court to question the riskanalysis of a position said to be supported by medical expert opinion. It allows the

court to freely take into account ethical and social concern issues which are

contained under the umbrella of the best interest of the patient. It perfectly fits into

the formulation in NHS Trust v Wyatt of welfare and emotional issues as being

additional considerations in determining what is in the best interest of a patient.

It follows that while court adjudication of clinical decisions in England has over

time been subjected to the medicalised formulation founded on the Bolam case,developments in law has since shifted the position. Pursuant to the risk

assessment proposition in the Bolitho Caseand the provisions of Section 1(5) on

the MCA on the best interests of the patient, it is open to courts to take into

account ethical and social concerns surrounding clinical decisions.

52[1997] 4 All ER 771


18/21

BIBLIOGRAPHY

Statutes

Adults with Incapacity (Scotland) Act 2000

Human Rights (England) Act, 1998

Interpretation (England) Act1978

Mental Capacity (England) Act 2005

Case Law

Adler v George [1964] 2 QB 7

Airedale NHS vs. Bland [1993] 1 All ER 821

An Hospital NHS Trust v S [2003] EWHC 365 (Fam)

An NHS Trust vs. Ms D [2005] EWHC 2439 (Fam)

Bolam vs. Friern Hospital Management Committee [1957] 1 WLR 582

Bolitho v City and Hackney Health Authority(1997) 4 AER 771


19/21

Canterbury v Spence464 F.2d 772 (D.C. Cir. 1972).

Donoghue vs. Stevenson [1932] UKHL 100

Edward Wong Finance Co. Ltd. v Johnson Stokes & Master(1984) 1 AC 296

Fisher v Bell [1961] 1 QB 394

Health and Social Services Trust vs. PM & Anor [2007] NIFam 13 (21stDecember 2007)

Hucks v Cole (1993) 4 Med. L.R. 393

Marriott v West Midlands Health Authority [1999] Lloyds Rep Med 23

Maynard v West Midlands Health Authority [1985] 1 All ER 635

Midland Bank Trust Co. v Hett, Stubbs and Kemp [1979] Ch. 384 at 434

Penney, Palmer and Canon v East Kent Health Authority [2000] Lloyds Rep Med 41

R vs. Cox 12 BMLR 38

R v- GMC and others [2004] EWHC 1879 (Admin)

Re A (Male Sterilization)[2000] FCR 193

Re F (Mental Patient: Sterilisation) [1990] 2 AC 1

Re G (Persistent Vegetative State)[1995] 2 FCR 46

Re Ms B vs. NHS Hospital Trust [2002] EWHC 429 (Fam)

Re Sussex Peerage[1844]EngR 822

Royal College of Nursing v DHSS [1981] 2 WLR 279

Re S (Adult Sterilization) [2000] 2FLR 389

Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] 1 All ER 643

W Healthcare NHS Trust vs. H [2005] 1WLR 834

Conventions
http://www.bailii.org/uk/cases/UKHL/1980/10.htmlhttp://www.bailii.org/uk/cases/UKHL/1980/10.html


20/21

Convention for the Protection of Human Rights and Fundamental Freedoms(European Convention on Human Rights, as amended) (ECHR)

Government Publications

NHS Litigation Authority, Report and Accounts- 2011/2012 (NHS 2012)http://www.official-documents.gov.uk/document/hc1213/hc02/0215/0215.pdf accessed

12th August 2013

Books

Articles

Bryden D., Ian Storey Duty of Care and Medical Negligence(2011) 11 (4) ContinuingEducation in Anaesthesia, Critical Care & Painhttp://ceaccp.oxfordjournals.org/content/11/4/124.full.pdf+htmlaccessed 13

thAugust 2013

Powell J, Professional Negligence: The Changing Coastline Of Liabilitywww.4newsquare.com/Files/PDF/Article/JP%20article.doc accessed 17thAugust 2013

Samanta A., Samata J., Legal Standard of Care: A Shift from the Traditional Bolam Test

www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdf accessed 20th August 2013

Teff H. The standard of care in medical negligence moving on from Bolam? (1998)18Oxford J Legal Studies

Theresa J., Guidance on Determining the best Interests of Adults who Lack the Capacity toMake a Decision (or Decisions) for Themselves [England and Wales] (British Psychological

Society, 2007)http://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf

accessed 18th August 2013

Others

General Medical Council Consent: Patients and Doctors Making Decisions Together (2013)

http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp accessed18thAugust 2013
http://www.official-documents.gov.uk/document/hc1213/hc02/0215/0215.pdfhttp://ceaccp.oxfordjournals.org/content/11/4/124.full.pdf+htmlhttp://ceaccp.oxfordjournals.org/content/11/4/124.full.pdf+htmlhttp://www.4newsquare.com/Files/PDF/Article/JP%20article.dochttp://www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdfhttp://www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdfhttp://www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdfhttp://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf%20accessed%2018th%20August%202013http://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf%20accessed%2018th%20August%202013http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asphttp://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asphttp://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asphttp://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf%20accessed%2018th%20August%202013http://www.mentalhealthcare.org.uk/media/downloads/Best_Interests_Guidance.pdf%20accessed%2018th%20August%202013http://www.researchgate.net/...of...Bolam.../9fcfd5134df067bfd3.pdfhttp://www.4newsquare.com/Files/PDF/Article/JP%20article.dochttp://ceaccp.oxfordjournals.org/content/11/4/124.full.pdf+htmlhttp://www.official-documents.gov.uk/document/hc1213/hc02/0215/0215.pdf


21/21

judicial reluctance to challenge clinical decisions

Documents