This is an extract of our Bolam Essay document, which we sell as part of our Medical Law and Ethics Notes collection written by the top tier of University Of Oxford students.
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MEDICAL MISHAP/BOLAM TEST
GOOD OPENING POINTS a) Jonathan Herring (2012) - difficult to find an accurate picture of the number of adverse events involving medical professionals in England and Wales, although b) Chief Medical Officer report (2001) - showed that 10% of hospital admissions lead to some kind of adverse event
MEDICAL MISPRACTICE CONSEQUENCES a) criminal prosecution b) civil action in tort or contract (where private healthcare) c) disciplinary proceedings brought by the NHS or the relevant professional body (GMC) which will address, inter alia, whether doctor needs retraining or removing from the profession CRIMINAL PROSECUTION
1. CHARGE: a) R v Adomako - doctor can be charged with gross negligence manslaughter where patient dies as a result of extremely negligent conduct b) Corporate Manslaughter and Corporate Homicide Act 2007 - NHS trust could be convicted of manslaughter in the way the Trust was run if this negligence caused a patient's death
2. ANTI-MEDICAL CONVICTION: a) Oliver Quick (2010) - stated that doctors should only be convicted where they actually foresaw the harm, carelessness should be an insufficient basis for criminal liability b) Doctors exposed to higher chance of being responsible for gross negligence than ordinary people
3. PRO-MEDICAL CONVICTION:
1 a) Herring (2012) - Devil's advocate: Should those who hurt others accidently whilst driving be treated differently to doctors?
b) Doctors are highly rewarded and we entitled to expect higher standards, hence why Alghrani et al (2011) - argue for the creation of a new offence of willful neglect of patients by medical professionals
BOLAM v FRIERN TEST (QBD)
1. Normal reasonable man test to establish the duty of care in negligence cases is modified for all health care professionals MCNAIR, J: 'A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art'
2. Newman v Maurice - won't be enough to just introduce expert evidence that they would have done it differently to the defendant
3. Defreitas v O'Brien - evidence that just 4/5 special neuroscientists would endorse D's view was enough
4. Bolitho v City - HoL approved Bolam test, although Lord Browne-Wilkinson held that the body of opinion relied upon would need to demonstrate a 'logical basis'
5. Although, this illogical basis has arguably made little difference as: a) test is still referred to as Bolam test b) Wisniewski Brook LJ held: 'It is quite impossible for a court to hold that the views sincerely held by doctors of such eminence cannot logically be supported at all' BUT: c) Burne v A - trial judge rejected the views of the experts on what is a responsible course of conduct d) Thus, court can find illogical basis, but as Cranston J said in Birch v UCLH, it will be rare
6. Medical professional judged at the time of the incident, not on hindsight - MOJ v Carter
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