Case Facts
The claimant, John Hector Bolam, a salesman, was admitted to Friern Hospital on 29 April 1954 suffering from the after-effects of a mental illness of the depressive type. He was discharged on 30 July 1954 but readmitted on 16 August 1954 suffering from depression.
On 18 August 1954, Dr J de Bastarrechea, the consultant psychiatrist at Friern Hospital, advised the claimant to undergo electro-convulsive therapy (ECT) and informed him that the treatment would be administered the following day. The claimant signed a consent form authorising the treatment. He was not, however, warned of the risk of fracture that the procedure carried.
The injurious treatment was administered on 23 August 1954 by Dr C Allfrey, a senior registrar at the hospital. The claimant received an initial shock of approximately one second, followed within approximately four seconds by a succession of five momentary shocks at 150 volts, fifty cycles per second. During the treatment, no relaxant drugs were administered, and no manual restraint was applied beyond support of the lower jaw. Three male nurses were present — one supporting the lower jaw, one standing at each side of the couch — and a pillow was placed under the claimant's back.
The claimant sustained severe physical injuries as a result: dislocation of both hip joints with fractures of the pelvis on each side, caused by the head of the femur on each side being driven through the acetabulum (the cup on the pelvis).
The claimant brought an action in negligence against the Friern Hospital Management Committee, alleging three distinct failures: (1) that relaxant drugs were not administered prior to ECT; (2) that no manual restraint was applied during the convulsion; and (3) that he was not warned of the risk of fracture before consenting to treatment.
The evidence at trial revealed that amongst practitioners experienced in ECT, two bodies of competent medical opinion existed. Since 1953, one school of thought had favoured the routine use of relaxant drugs or manual control; the other considered that such drugs carried mortality risks and confined their use to cases where there were particular clinical reasons for doing so — the claimant's case was not considered to be such a case. Admittedly, the use of relaxant drugs would have excluded the risk of fracture entirely. There were similarly divergent views on whether, if relaxant drugs were not used, manual restraint should be applied, and on whether patients ought to be expressly warned of the risk of fracture before undergoing ECT. The evidence also established that the risk of fracture was very small, of the order of one in ten thousand.
Held
The jury returned a verdict for the defendants.
The trial judge directed the jury on three principal matters. First, as regards the use of relaxant drugs and manual restraint, the jury was directed that a doctor is not negligent merely because there exists a body of medical opinion that takes a contrary view to the approach adopted, provided the doctor acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Applying this standard, neither the decision not to administer relaxant drugs nor the decision not to apply manual restraint constituted negligence, since each was supported by a responsible body of competent professional opinion.
Second, as regards the failure to warn, the jury was directed that when a doctor is treating a mentally ill patient and holds a genuine belief that the patient's only hope of recovery lies in submission to ECT, the doctor cannot be criticised if, believing the dangers involved in the treatment to be minimal, he did not stress those dangers to the patient. There was evidence that in cases of mental illness, an explanation of risk might well not affect the patient's decision whether to undergo the treatment in any event.
Third, the jury was directed that in order to recover damages for failure to give warning of the risk of fracture, the claimant must show not only that the failure to warn was itself negligent, but also that, had he been warned, he would not have consented to the treatment. This causation requirement was not made out on the facts.
Ratio Decidendi
The ratio decidendi of this case is the formulation of what has become known as the Bolam Test. In directing the jury, the trial judge articulated the standard of care applicable to professionals exercising a special skill in the following terms: a doctor is not negligent if he is acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view.
In arriving at this formulation, the trial judge drew upon the principle stated by Lord President Clyde in Hunter v Hanley [1955], a Scottish authority which had expressed the applicable standard in materially similar terms.
The Bolam Test accordingly establishes that the standard of care in professional negligence is not that of the ordinary reasonable person, but that of the ordinary skilled person exercising and professing to have that special skill. A doctor will not be found to have breached the duty of care recognised in Donoghue v Stevenson [1932] merely because another body of equally responsible medical opinion would have acted differently. The existence of a divergence of professional opinion does not, of itself, render one approach negligent.
This principle has since been subject to significant qualification. In Bolitho v Hackney Health Authority [1997], the House of Lords held that the professional practice relied upon must also be capable of withstanding logical analysis — a court is not bound to find in favour of a defendant doctor simply because a body of experts testifies in support of the practice adopted, if that practice cannot be justified on rational grounds.
The Bolam Test remains the foundational standard in medical negligence in English law. It has been applied across a wide range of professional contexts and continues to govern the assessment of breach of duty in cases involving the exercise of special professional skill and judgement.
Obiter Dicta
The trial judge's direction to the jury on the question of warning contains observations that, whilst integral to the summing-up, may be treated as obiter in so far as the principal legal rule was established in relation to the standard of care generally. The observation that a doctor treating a mentally ill patient who genuinely believes ECT to be the patient's only hope of recovery cannot be criticised for failing to emphasise minimal risks was directed at the particular facts of the case. Subsequent case law has substantially developed the law on informed consent. In Chester v Afshar [2004], the House of Lords modified the causation requirement in the context of failure-to-warn claims, departing from the strict approach suggested in the summing-up in this case, under which a claimant was required to establish that, but for the failure to warn, they would not have undergone the procedure. The development of the law in this area reflects a broader judicial recognition of patient autonomy as an independent value in medical law.