This case established the Bolam test which is the basic rule for professional negligence.
See also Rogers v Whitaker [1992] 175 CLR 479
Facts of the Case
The Plaintiff, John Hector Bolam was admitted to Friern Hospital on 16 August 1954. He was suffering from mental illness caused by depression. On 18 August 1954, he was examined by Dr J de Bastarrechea, a consultant psychiatrist attached to Friern Hospital. He advised the plaintiff to undergo electro-convulsive therapy but he did not warn the plaintiff that there is a risk of fracture for undergoing this treatment. Electro-convulsive therapy is carried out by placing electrodes on the head which allow an electric current from a machine to pass through the brain. The plaintiff signed a form consenting to the treatment. On his second treatment on 23 August, the plaintiff sustained severe physical injuries consisting in the dislocation of both hip joints with fractures of the pelvis on each side which were caused by the head of the femur on each side being driven through the acetabulum or cup on the pelvis from receiving treatment administered by Dr C Allfrey.
The plaintiff claim damages against Friern Hospital Management Committee, the defendants. The plaintiff contended that the defendants were negligence in permitting Dr Allfrey to administer electro-convulsive therapy without the previous administration of a relaxant drug or without restraining the convulsive movements of the plaintiff by manual control and in failing to warn the plaintiff of the risk of the treatment and that Dr Allfrey was negligent in administering the treatment.
Issue of the Case
Whether the defendants were negligent in failing to give to the plaintiff a warning of the risks involved in electro-convulsive therapy, so that he might have had a chance to decide whether he was going to take those risks or not.
Whether the defendants were negligent for failing to use any relaxant drugs which admittedly, if used, would have excluded, to all intents and purposes, the risk of fracture altogether.
Whether some form of manual control beyond shoulder control, support of the chin, and placing a pillow under the back, should have been used If relaxant drugs were not used.
Judgment of the Case
First issue: Whether the defendants were negligent in failing to give to the plaintiff a warning of the risks involved
Plaintiff relied on the opinion of a distinguished psychiatrist, Dr Randall who said that he would warn the patient of the risk involved to a treatment to a patient who can understand the warning. Dr Randall also said that there could be circumstances which it could be considered that it would not be beneficial to tell a patient of possible risks.
Dr de Bastarrechea gave evidence that he is of the opinion that it is not desirable to warn the patient about the risk because it is minimal. He said the risk of fracture is only 1 in 10,000 and patient may deprive himself by refusing the remedy. He thinks that patients not necessarily need to be warn of all risks involved. Two other doctors also said that they use their judgment to determine whether the patient should be informed of the risks so that they would not refuse treatment that would make them better.
The Court held that what needs to be considered is when a doctor is dealing with a mentally sick man and has a strong belief that his only hope of cure is submission to electro-convulsive therapy, should the doctor be criticised if he does not stress the dangers, which he believes to be minimal, which are involved in that treatment.
Second issue: Whether the defendants were negligent for failing to use any relaxant drugs
The plaintiff argues that if relaxant drugs had been used, it is common ground that the risk of fracture in the operation would, to all intents and purposes, be excluded; therefore, it ought to be excluded. On the other hand, the defendants say that the risk of fracture without the use of relaxant drugs is minimal, although if a fracture does occur it may not be serious to the patient. The use of relaxant drugs with an anaesthetic, there is a mortality risk. Defendants have decided not to use relaxant drugs except in cases where the patient’s condition indicates that a relaxant drug should be used.
The Court found that there is a firm body of opinion against using relaxant drugs as a routine, and all the witnesses agree that there is this body of opinion.
Third issue: Whether some form of manual control should have been used If relaxant drugs were not used.
The plaintiff called Dr Randall which gave his own views that fractures were more common if restraint was not used. The defendant said that there is no standard technique to which all competent doctors will agree. There is a competent body of medical opinion that restraint was unnecessary. They believe that the more restraint on a patient, the more likely there were to be fractures.
Dr Allfrey favour the views that no restraint should be used. He got this impression from his experience and it is also the practice carried out by Dr de Bastarrechea when he came to Friern Hospital. Two other doctors working at different hospitals also carried out the same practice. One doctor adopts a modification of the practice by carrying out the treatment in a more controlled environment. Thus, it shows a diversity of practice.
The Court explain that in the ordinary case which does not involve any special skill, negligence in law means some failure to do some act which a reasonable man in the circumstances would do; and if that failure or doing of that act results in injury, then there is a cause of action. The test used to judge is by the action of the man in the street which is the ordinary man. When you get a situation, which involves the use of some special skill or competence, then the test whether there has been negligence or not is the standard of the ordinary skilled man exercising and professing to have that special skill. A. man need not possess the highest expert skill at the risk of being found negligent.
It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art and if a medical man conforms with one of those proper standards then he is not negligent. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. A doctor is not negligent merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can stubbornly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.
Based on the facts, the practice by the defendants were approved by the general medical opinion and there is no suggestion that there was any negligence in the diagnosis, or in the decision to use electro-convulsive therapy. Furthermore, no one suggests that D Allfrey, or anyone at the hospital, was in any way indifferent to the care of their patients. Hence, defendants were found to be not negligent.
Principle of the Case
In situation involving the use of some special skill or competence, then the test whether there has been negligence or not is the standard of the ordinary skilled man exercising and professing to have that special skill. if he exercises the ordinary skill of an ordinary competent man exercising that particular skill then he is not negligent.