(Under review)
Facts of the Case (Bolam vs Friern Hospital Management Committee)
John Hector Bolam suffered from depression. In 1954, he voluntarily admitted himself to Friern Hospital, a mental health facility in North London. Seeking treatment, he agreed to undergo Electroconvulsive Therapy (ECT), a common approach to managing depression.
He received an “unmodified” version of ECT during his treatment, where no muscle relaxants were administered. Additionally, he was not physically restrained in any form despite the supervision of nurses during the treatment process.
ECT involves placing electrodes on the side of a patient’s head, delivering a short electric pulse to provoke a controlled seizure. Mr. Bolam experienced intense muscle spasms because of the treatment, leading to hip fractures.
In response, he took legal action against the Friern Hospital Management Committee for the following reasons:
- If he had been informed about the potential risks, he would have chosen not to undergo the treatment;
- The medical staff – including the doctor and nurses, demonstrated negligence by not providing him with a muscle relaxant; and
- The medical staff were also negligent for not employing restraints during the treatment.
Issue of the Case (Bolam vs Friern Hospital Management Committee)
To determine negligence, it must be established that the accused of the wrongdoing did not fulfil their responsibility to take care of the person making the claim. In this case, the issue was determining the standard of care prescribed to an accused professional, further determining whether a majority of professionals in the same field would take a similar approach.
The Judgement (Bolam vs Friern Hospital Management Committee)
The High Court ruled that the doctor didn’t fail in their duty to the patient, and as a result, the defendant wasn’t held responsible. Justice McNair outlined the guideline for deciding how medical professionals should care for their patients (‘Bolam test’). A medical professional isn’t considered to have neglected their duty if their actions align with practices that other responsible medical experts in the same field deem appropriate. Even if some experts disagree with this practice, if a significant portion of experts support it, it’s considered acceptable. In this case, because a substantial group of medical experts endorsed the approaches used, there was no breach of duty.
Medico-legal Implications Today
Several preceding landmark cases have occurred since then, which have continued to influence the legal environment.
Montgomery v Lanarkshire Health Board
In a 2015 case, Mrs. Montgomery, a small-stature type 1 diabetic, experienced shoulder dystocia during childbirth. This led to her baby experiencing oxygen deprivation and subsequently developing cerebral palsy. Dr. McLellan, the overseeing obstetrician, neglected to inform Mrs. Montgomery about the potential risks and did not suggest a caesarean section (c-section), which could have potentially averted these complications. Despite the ruling that there was no negligence based on the Bolam principle, the court ruled in Mrs. Montgomery’s favour based on risk disclosure.
The Premise of the Final Judgement
The Supreme Court determined that the claimant should have been informed about the potential risks and alternative treatments. They further concluded that the doctor was responsible for disclosing the important risks connected to the available treatment options. Traditionally, determining if a doctor had given appropriate consent was based on the Bolam principle, however, this case shifted this perspective. This ruling upheld the concept of “material risk,” previously explained by Lord Scarman in his differing opinion on the Sidaway (Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871) decision.
Material Risks
Material risks can be understood in two ways:
- Risks that a reasonable person in the patient’s position would likely consider important; or
- Risks that the doctor should reasonably recognize as significant to that specific patient.
According to the ruling of the Montgomery case, a material risk cannot be simplified to mere percentages. Even if a risk has a low likelihood of happening, the patient should still be informed about it if they are likely to find it important. The responsibility also lies with the healthcare professional to ascertain what matters to the patient and whether those factors would make a risk “material” for a particular treatment. This asserts that there is no “one fits all approach.”
There are, although, two exceptions when informing the patient about “material risks:”
- Therapeutic Privilege – when a doctor is pardoned from divulging information to a patient due to a belief that doing so could cause “significant harm to the patient’s health”; and
- Emergency Situation – when there’s insufficient time to apprise the patient of the material risks.
A Dialogue Approach to Consent
This case also highlighted the importance of practising a dialogue approach to obtaining consent. This approach entails the doctor and patient actively participating in the consent process. The goal is to empower the patient with better information, enabling them to decide on their preferred treatment independently. It further emphasizes that healthcare providers must ensure patients can inquire about treatment choices and associated risks.
The dialogue approach is built on the GMC Guidance document of consent, which emphasizes the importance of effective communication between a doctor and a patient is crucial for making informed
decisions. This interaction allows the doctor to learn about the patient’s concerns and preferences, helping them provide the necessary information for decision-making.
The main goals of this dialogue are:
- Assisting the patient in understanding their role in the decision-making process, including their right to decide on receiving treatment or care;
- Ensuring that the patient gets the chance to think about important information that could impact their choice among different options; and
- Striving to achieve a mutual understanding of what can be expected from the available choices and their limitations (part 8-9 of the GMC guidelines).
Summary
In a departure from the ‘reasonable doctor’ to the ‘reasonable patient,’ the consent process enhances the patient’s understanding, providing them with all the necessary information for making treatment decisions. This approach is individualized, emphasizing one’s autonomy and self-determination over medical paternalism.
References
- https://www.gponline.com/short-history-bolam-test-keystone-medical-negligence-law-60-years/article/1441675
- https://www.healthcareethicsandlaw.co.uk/dentalconsent/nadine-montgomery-lanarkshire-health-board-2015-healthcare-consent-case-law-dentistry-dental-law-ethics-healthcare#:~:text=This%20case%20introduced%20the%20concept,make%20their%20decision%20on%20treatment.
- https://www.themdu.com/guidance-and-advice/guides/montgomery-and-informed-consent
- https://www.supremecourt.uk/cases/uksc-2013-0136.html https://lawprof.co/tort/negligence-cases/montgomery-v-lanarkshire-health-board-2015-uksc-11/
- https://laurensutherlandqc-lawandethics.com/cases/sidaway-the-uk-law-pre-montgomery/
- https://rcpsg.ac.uk/college/speaking-up-for-the-profession/policy-reports-and-publications/consent/the-montgomery-case
