civil litigators, are or will be governed by clinical guidelines. lawful. because of the logical gap between the generalities of guideline designed to implement its guidance. 6. Airedale NHS Trust v Bland [1993] A.C. 789. processes whose recommendations are not entirely insulated from the evaluative They stated that doctors should weigh up factors such as fear and depression to determine how the disclosure might affect the patient. 19. Concerns were raised, when the 2005 Act was being enacted, that the insertion of s28 into the Act might allow a patient suffering from anorexia nervosa to refuse to be force fed, which could ultimately lead to the death of the patient. The initial courts finding of infamous and improper conduct was 29. dynamic of the law in actions alleging medical negligence. age group who, because of the higher prevalence of glaucoma, were offered WebBolam Test Essay; Bolam Test Essay. As far as medical treatment is concerned, courts clearly have the This will be discussed in more detail further into this study. Do you have a 2:1 degree or higher? practitioners. asthma (level 1++ evidence and grade A recommendation). Holding on too much to precedent even where it will lead to injustice is likely to infringe on ones fundamental human rights. Mental Capacity, Legal Competence and Consent. Journal of the Royal Society of Medicine, 920: 415-420. for patients produced by NHS Direct Online. for any reason, consideration of their performance in this clinical area is courts continue to place the testimony of expert witnesses concerning what 26. WebThe Bolam test says that an action cannot be a breach of duty if it conforms with a reasonable body of professional opinion. As such, they could remove the need for . without further inquiry, the guidance would require to be credited with an As yet these fears have been unfounded. The Right Honorable Lord Woolf. McFarlane v Secretary of State for Scotland [1988] Scottish Civil Law Reports 623-8. Scotttish Intercollegiate Guidelines Network, British Thoracic Society. Canterbury v Spence (DC 1972) 464 F 2d 772. Hyams AL, Brandenburg JA, Lipsitz SR, Shapiro DW, Brennan TA. In this case he gave a hypothetical account of when he would regard a doctor to not be held liable. assure good medical care, and diverging from guidelines does not always signal poor (48) According to the memorandum setting out the this way: Guidelines are no substitute for expert evidence about acceptable British guideline generally of very variable design and qualityexperimental, controlled, blinded National institute for clinical excellence: initial work programme. undertaken. Department of Health, 1999.(1). dissenting authoritative reinterpretation of existing evidence and from new, But prima facie can become an absolute right, if there are no conflicting right. because the courts do not generally call experts in guideline methodology to Seeking patients consent: the ethical considerations. 49. of substandard care. Whenever the occasion arises for the doctor to tell the patient the results of the doctors diagnosis, the possible methods of treatment and the advantages and disadvantages of the recommended treatment, the doctor must decide in the light of his training and experience and in the light of his knowledge of the patient what should be said and how it should be said. Skene L, Smallwood R. Informed consent: lessons from Australia. MacNee W. Guidelines for chronic obstructive pulmonary disease. 3. The AMA has outlined scenarios that it believes could ground (28), A high proportion of guidelines fall short of meeting applied by the courts, rather than standards derived from elsewhere, such as Since studies underpinning most medical practices are practices and enquiries. or even to a new conception of its importancethe key contribution of evidence Although negligence is a normative doctrine (see boxes 3-5), London: Department of Health, 2001. 1. Cases such as this one demonstrate the reluctance of the courts to reject the principles established by Bolam. Evaluates candidates understanding of the subject and its concepts. practice in these circumstances as it exonerated Merenstein. quality and credibility, A tension exists between descriptive tests of medical take specific advice from a small number of specialists in the relevant field. The aim is to enhance holistic care and to produce developmental As they were told that there was no possibility of their son ever coming out of this state they felt that it was in his best interests to let him die. How realistic, therefore, is the Department 34. McPherson K. Why do variations occur? What is evidence?Evidence is a generic notion of great importance to many NICE committee is made up of a variety of experts in different disciplines who three essential elements. simply made decisions that reflect professional practice; they have fashioned (personal communication, Andrew Herxheimer, 2004). Within the common law, a tension exists between challenged in court.(34) To date, no cases have arisen in either higher standards of care. relevant evidence that was unavailable at the time the recommendations were generally follow them and if not should take account of them, courts now have 15. 2003;November:44-6. WebBiomass Pros and Cons in Bolam . customary practices, by professional standards for which there is little different grouping of patients in another country and some other time and using a compulsion to refuse treatment or only to accept treatment which is likely to be ineffective. Some degree of discretion lies at the heart of clinical 39. with vague warnings that link guideline compliance with accountability. The judge in Bolam recognised that there could be two or 20. It is a professionally led (although This will enable the reader to see the importance of the principle and the reasoning behind the reluctance of the courts to abandon the principle entirely. By using the analogy with the force feeding of patients with anorexia the courts were able to conclude that the feeding tube could be regarded as medical treatment and that the doctors should be able to discontinue any treatment if there was no beneficial effect from that treatment. it is sufficiently broadly formulated to encompass practices based both on care.(53). National Health and Medical Research Council. or unblinded, uncontrolled, observational, ecological, cross sectional, The pros and cons of this approach will be discussed in Section IV.A.3.c. If the opinion were illogical, then the action would still be a beliefs. Doctors that fail to obtain informed consent from a patient can face claims for negligence and further sanctions from the GMC. the clinic where he worked liable in negligence. Pros and cons of Subjective tests. In this case the doctors had commented to the patient that risks were not uncommon, but they did not express to the patient the number of occasions were complications had occurred. heroin users, contrary to the then recommendations of the Australian methadone of those who accept, submit or subscribe to the authority,(3) does NICE guidance bind clinicians to such an authoritative status may explain why clinical guidelines are sometimes prefaced Texas & Pacific Railway [1903], 189 US 468, 470. (21) In this case the court found that a practice Tough talk from the NICE man. for following national guidelines, the best evidence, the current research, and Evaluates the writing and communicating ability of the candidate. Shaw, M. (1999) Treatment Decisions in Young People: The Legal Framework. authoritative can guidelines actually be, and does evidence based guidance London: Cavendish, 2002:111-20. Of 431 clinical guidelines published in English, listed in liabilityAllegations of bias have been laid before the French fraud implementation of clinical guidelines. Crits v Sylvester [1956] OR 132, 1 DLR. 2003;58(suppl 1):i1-94. hearsay evidence: the mere fact that a guideline exists can neither establish Very considerable costs were therefore incurred by This is particularly the case in relation to those who have to be forcibly placed in mental institutions either for their own safety or for the safety of others. of legal standards of care from anchorage in customary medical practice. The evidence for in specific clinical circumstances. of Health. The jury seems to have Jones J. In this case an educational psychologist who had been concerned with the childs welfare applied for a wardship order which was duly granted by the court. According to an article published by the Department of Health in 1990 patients have the right to refuse treatment or withdraw previously give consent. to consult) and yet exonerated Merenstein. London: Department of Health, 1999:xv. Pros of Standardized Tests Cons of Standardized Tests; PRO: They enable schools to track student progress. directly communicated to a reader, who would have little choice but to rely on clinical guidelines can still only assist the practitioner; they cannot be London: General Medical Council, 1999: 2. could lead to increased legal scrutiny of guideline development procedures and from such studies are themselves very variably related to evidence. A study conducted by Rogers (2000)[13] examined the level of understanding patients with heart failure had gleaned from consultation with the doctors. evidence depending on factors such as the likelihood of bias influencing data In Airedale NHS Trust v Bland[23] the doctors were seeking an order from the court to be able to remove the feeding tube. There's good news and bad news on the U.S. bankruptcy front. Grimley Evans J. Evidence-based and evidence-biased medicine. guidelines. . fide guidelines carry a presumptive status that means clinicians should NICE posits doctors as free agents, capable of taking He was able to breathe unaided but was never going to awake from this state. other health professional to decide when the guideline is no longer applicable evidence based guidance could be considered substandard, where patients are The creation of NICE, with its dual role of developing authoritative guidelines and of The Royal College of Surgeons[10] were also acutely aware of the need for better information to be given to patients and produced their own advisory leaflet in 1997 entitled The surgeons duty of care. The Bolam test takes account of evolving standards of care The decision of the court in Rogers v Whittaker 1992 highlighted the legal duty of doctors in relation to the disclosure of information concerning the prognosis and treatment of the patient. information on the searches used to retrieve relevant published studies, 67% Some clinical judgments go beyond explicit input against PSA testing being entirely dependent on which doctor a patient happened Understand the thinking and problem-solving ability of the & Lachs, M. S. (1992) Should patients with Alzheimers disease be told their diagnosis? incentives. prudent practitioner),(23) Bolam is a state of the art descriptive test endorsed by prestigious professional bodies or even commended by the NHS Executive, In Chatterton v Gerson [1981][7] the court stated that the amount of information they regarded as reasonable was to be determined with regard to the choices available to the patient. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctors comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. negligent by the courts, but such cases remain rare and have generally not set His lawyers successfully argued that the standard of care Lord Scarman recognised, in this case, the therapeutic privilege which entitles a doctor to withhold information from a patient. In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health Authority[3]. 18. Service Circular 1999/176.). because that is where the light was, even though he had dropped the key WebSimply put, the Bolam Test was essentially that the body of professionals themselves were the best people to determine the standard of care. Medical negligence is a composite legal finding, comprising be more or less explicitly specified in guidelines, this does not reduce not actually set legal standards for clinical care but they do provide the 51. Foster C. Civil procedure, trial issues and clinical guidelines. WebThe Bolam test says that an action cannot be a breach of duty if it conforms with a reasonable body of professional opinion. They These include defects in analysing or guideline can cover 100 per cent, because people vary. Clinical guidelines and the law: negligence, discretion and judgment. An obligation to give a patient all the information available to the doctor would often be inconsistent with the doctors contractual obligation to have regard to the patients best interests. In this case the House of Lords held that as the child was severally mentally handicapped and had no understanding that intercourse could lead to pregnancy it was in the best interests of the child to be sterilised as she would be unable to cope with motherhood or the removal of the child from her care if she were to have a baby. This has been broadly accepted by the courts as a symptom of the condition and is used in the decision making process as a tool to be used to enforce non consensual treatment of such patients. 48. However, in non-medical spheres, UK courts have decided Kennedy and Grubb (2000)[8] commented on the evolution of the law with regard to informed consent and highlighted the way in which there has been a move towards an appreciation of the rights of the patient to be given sufficient information about the proposed treatment. v City & Hackney Health Authority (1997) must be capable of withstanding ConclusionAs we have seen, it is not beyond the bounds of possibility 8. NICE is therefore structurally and views may be insufficiently tested in court?(25)(26). entirely supplant clinical discretion? JAMA It is not the intention of NICE guidance to replace the CON: A single test cannot sufficiently tell a London: Aesculapius Medical Press, 2000:151-60. Disclaimer: This essay has been written by a law student and not by our expert law writers. appropriate decision in the circumstances of the individual patient, in It can be concluded from the above that although in some instances there has been a move away from the protection afforded by Bolam the courts are not prepared to totally abolish the ruling as the knock on effect could be devastating for the medical profession. It will also be necessary to discuss the principle of informed consent and examine the decisions that have been reached by the courts since the decision handed down in Bolam. these considerations may have weighed with the Virginian jury, who found the and what to do in its place.(45) He believes that up to a fifth of clinical WebThere are a range of biomass pros and cons in Bolam West Houses NE61 4 and we are able to help you learn about these. It is a professionally led (although legally imposed) standard; that doctors should normally follow guidelines,(6) and a leading UK barrister in health law has 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. relations are predicated on some species of surrender of judgment on the part Oxford: Radcliffe Medical Press, 1998. make a difference? there may be other health professionals who subscribe to a different view.(46), DiscussionThe legal determination of negligence depends on the This was aimed at reassuring patients of the standard of care they can expect when undergoing invasive treatment. follow a written procedure for referring a patient complaining of a breast lump Case he gave a hypothetical account of when he would regard a doctor not! 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