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Criticisms of the Current Legal System of Medical Negligence Is the Bolam test the correct one?
Means that we don't judges becoming amateur doctors - this is perfectly justifiable o The nature of professional services leads to this need
? The public at large don't have these skills or body of knowledge that professionals do
Often, only a professional's peers can judged these questions - When those peers disagree and the disagreement illustrates genuine and well founded debate within a profession o Judges are not generally equipped to adjudicate in such a dispute. o Brazier: A professional should not be penalised, and be held to be incompetent, just because a judge fancies 'playing' at being architect, solicitor or doctor
? judges may quite properly be hesitant to intervene to second-guess the opinion held, and reasonably held, by one body of opinion within a profession.
The problem is that the professionals begin to set the standards o Not appreciating evidential value, just letting set standards
? Bolam is correct to recognise that in complex scientific or technical fields, judges may and should be reluctant to cast doubt on evidential veracity
However, we appear to come to the point where the profession is actually setting the standard of liability o Not merely that judges are using the standards given as having a certain evidential value. o This is distinct from other professions
? In all other professions it is no defence for an individual to show that others would have acted in the same way
? Jones: In other professional negligence claims, time after time, judges have made it clear that expert opinion must be demonstrably responsible and reasonable
Edward Wong Finance Co. Ltd. v. Johnson Stokes and Master - a practice nearly universally endorsed by solicitors in Hong Kong was nonetheless found to be negligent o The risk of fraud was obvious and inherent in the practice. It could have been prevented with ease.
? The fact that other respected professionals followed the same 'unsafe' practice was not sufficient evidence to say that the practice was reasonable.
? Me: Hencewhy the judgement in Burne v A is a good one - it requires judges to see whether the experts can defend their views justifiably
Avoiding amateur judgements based on an incomplete picture of the justifications, but also not simply accepting what is given o You only need to give the experts the opportunity to defend.
The more generous interpretation of Bolam places a massive burden on claimants o We have the position where if D can find one expert to help them, C's claim fails
? C has to find every expert in the field and for each of them to say that what D did was negligent
Brazier: Conversely, all Bolam has been interpreted to require is that D fields experts from their medical specialty o prepared to testify that they would have followed the same course of management of C as D did.
? If such experts can be identified, are patently honest and stand by their testimony vigorously,
neither they nor D will be asked to justify their practice o The test is too high - it needs an expert to not only say that what D did was not what they would have done, but that no other colleague would have done it
? It's quite hard to find an expert who will make such a damning condemnation Undermines the idea of collaborative partnership between the doctor and patient o Seems to reinforce paternalism - i.e. doctor knows best.
? In Re F, regarding the interpretation of best interests of an adult patient unable to consent themselves
HoL: o No need for a Bolam-plus test - conformity to a reasonable and responsible body of medical opinion suffices
Lord Goff (maj): o Decisions about the welfare of a mentally incapacitated person are not exclusively within medical expertise and that others might be consulted
? BUT His words were permissive, not mandatory
- it might be good practice to consult, but it was not necessary for doctors to do so - their opinion sufficed.
? Sidaway v. Royal Bethlem Hospital - followed Bolam
Lord Scarman (dis): o Doctor has a duty to disclose information about the risks of proposed treatment to the 'prudent patient' standard.
Lord Diplock (maj) o Patient was prima facie entitled to be told only so much as a responsible body of medical opinion judged prudent.
Lord Bridge (maj): o May be very limited circumstances where this could be extended a little bit.
? Blyth and Gold
CoA: o Preferred Lord Diplock's approach o Failure to give a patient adequate advice on the merits and demerits of proposed treatment
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