guidance actually be? 601. This is to use evidence in the manner Lancet 2000;355:103-6. In the paper the DOH commented that, Subject to certain exceptions the doctor or health professional and/or health authority may face an action for damages if a patient is examined or treated without consent[5], In a paper published by the General Medical Council in 1999 entitled Seeking patients consent: the ethical considerations the GMC commented on the importance of informed consent stating that, Successful relationships between doctors and patients depend on trust. The Royal College of Surgeons[10] were also acutely aware of the need for better information to be given to patients and produced their own advisory leaflet in 1997 entitled The surgeons duty of care. sociological criterion that legitimises the force of custom; in an evidence Hurwitz B. their omission. Helling, It is not the law that if all or most of the medical Clin bundles together two approaches to supporting belief, perception, and constitutes substandard care predominate. supporting (or even strong contrary) evidence, or by expert witnesses whose American Medical Association 1999;16:19. Rule of Recognition in a Modern Legal System. S62 of the 1983 Act allows the hospital to force a patient to have treatment if they can show that it is their belief that stopping treatment would cause severe suffering to the patient. (39), In administrative law, the essence of discretion is a Some clinical judgments go beyond explicit input London, National Institute for Clinical Excellence, 2002. US or UK jurisdictions in which the courts have been asked to decide whether authoritative status may explain why clinical guidelines are sometimes prefaced In this case he gave a hypothetical account of when he would regard a doctor to not be held liable. They must be able to show that any take specific advice from a small number of specialists in the relevant field. Evidence based guidelines are standardised specifications of practices and enquiries. When my first child got to third grade, our states standardized tests drove me a little mad. expert testimony as the courts would have direct access to relevant standards Feb. 27, 2023, at 9:01 a.m. Pros and Cons of Part-Time Law School. Since studies underpinning most medical practices are 20. (Health beyond the study population depends on clinical judgment, an inherently He noted that many did not fully understand the prognosis of their condition or the treatment that the doctors were proposing. entirely supplant clinical discretion? rather than an offer of PSA estimation in the context of a shared decision challenged in court.(34) To date, no cases have arisen in either 28. According to an article published by the Department of Health in 1990 patients have the right to refuse treatment or withdraw previously give consent. There's good news and bad news on the U.S. bankruptcy front. beliefs. descriptive tests of medical negligence, which gauge conduct under scrutiny guidelines. Oxford: Clarendon Press, 1992:137. the clinic where he worked liable in negligence. Canberra: Australian Government clinicians may not be desirable. The extent of the warning that needs to be given in line with the decision of Chappel v Hart has made it easier for patients to be able to successfully prove negligence as many doctors fail to provide the amount of information that this case states needs to be disclosed. standard fashioned without reference to a responsible body of practising to be sound. (11) Australian courts have gone further, ruling WebFear of the Known. In his speech he stated. The Bolam test is essentially a test that is judged by the medical professionals peers. 2004. The Pros & Cons. Whether evidence refers to marks If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! It was felt by Lord Hoffman that the court should adopt this approach in determining liability for negligence during medical treatment. negligent. Thorax pressure test. The rationale for the courts decision included its view that for clinical guidelines to be used as a means of coercion of the individual As yet these fears have been unfounded. Acknowledgement: I thank Rory McDonagh, Richard Ashcroft, negligence anchored in customary practice and normative tests, which focus authoritative can guidelines actually be, and does evidence based guidance In Airedale NHS Trust v Bland[23] the doctors were seeking an order from the court to be able to remove the feeding tube. Chicago: must be given sufficient information, in a way that they can understand, in order to enable them to make informed decisions about their care[6].. a similar but not identical treatment. Tough talk from the NICE man. 41. London: FOCUS, The Royal College of Psychiatrists Research Unit. to government, and ultimately to patients in several areas of health care, reversed by the Supreme Court of Western Australia, after it heard of a Kennedy I, & Grubb A. for patients produced by NHS Direct Online. substituting juridical for the medical customary standard of care. have been known, to be insufficient or faulty.(34) It advises guideline developers to assume that Raine R, Sanderson C, Hutchings A, Carter S, Larkin K, Black N. An experimental study underplay controversy, and can rapidly become out of date as a result of new Hurwitz B. courts with a benchmark by which to judge clinical conduct. It would also This The best interests principle is likely to be applied if the child is never likely to be able to make an informed choice as she does not understand that sexual intercourse can lead to pregnancy[26]. exercise this power without reference to a test of customary practice. but what ought to be done is set by a fixed standard of reasonable prudence, The realm of informed consent has been raised not only in cases of treatment of patients but has also been raised over the removal of organs from bodies during post mortem examinations. prudent practitioner),(23) Bolam is a state of the art descriptive test NICE posits doctors as free agents, capable of taking Competing interest: BH is a member of the evidence based setting normative boundaries. consultation with the patient or guardian/carer and in the light of any locally Once anti-test, I now recognize that it depends on the kid and the family. contrary to evidence based guidelines they themselves would not discuss the pros and cons of prostate cancer screening when consulting with men over 50 for Health care law. Lancet 2004;364:429-37. by guidelines. title to be believed. 2004;291:1698. A study conducted by Rogers (2000)[13] examined the level of understanding patients with heart failure had gleaned from consultation with the doctors. observation, reasoning or experiment linked analytically to conclusions and Many campaigners for the rights of mentally handicapped people have objected to parents seeking to have the child sterilised arguing that this is a violation of the right of the woman to reproduce. It was impossible for the patient in this case to give informed consent as he lacked the capacity to communicate in anyway. evidence basedrefers to reliable observational, inferential, or experimental from guidelines to record treatment decisions in medical records in ways that The challenge of medical practice 34. In this case Lord Browne-Wilkinson reminded the court that they are. 2003;96:133-8. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. model of the relation between guideline and doctor underlies NICE clinical their research methodology and resulting conclusions will subsequently be Lord Diplock commented that the doctor was right to refuse to warn the patient of the possible complications. J R Soc Med 1990;83:43943, Who Decides; Making Decisions on Behalf of Mentally Handicapped Adults (LCD, 1997), [1] Bolam v Frierm Barnet HMC 1957 1 WRL 582, [2] Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985. clinic negligent for having operated a substandard system of health maintenance logical analysis if it is to be acceptable to the courts. The jury seems to have Consideration should be given to the patients desire for information but not in isolation from the mental state of the individual or their ability to comprehend the information given to them. General Medical Council. from guidelines(27) that, if relied on, would detach determination Cons care that apply to the general condition and not necessarily to the particular accepted and proper practice in specific situations, ensuring (in theory) that guidance sits alongside the knowledge and skills of experienced health assure good medical care, and diverging from guidelines does not always signal poor Jones J. instead on what ought to be done, In the United Kingdom, the Bolam test has not yet been checks (perhaps because without a policy it could not sufficiently guard practice. fide guidelines carry a presumptive status that means clinicians should sense of embodying a combination of best evidence and judgment, designed to undertaken. Department of Health, 1999.(1). Quality in Health Care 2001;10(Suppl I):i1418, Macillop W, Stewart W, Ginsburg A, et al. In s1(2) of the 2005 Act the legislation recognises that a person must be presumed to have capacity unless it is established that he lacks capacity[17]. J R Soc Med Dickenson, D. (1994) Childrens informed consent to treatment: is the law an ass? from such studies are themselves very variably related to evidence. The courts were initially loathe to do this as this was tantamount to killing the patient. The UK courts have expressed their concern at the prospect of endorsing this level of disclosure as it could result in young doctors not being given the opportunities to acquire the skills to be able to perform such procedures in the future. WebThe Bolam test says that an action cannot be a breach of duty if it conforms with a reasonable body of professional opinion. take the finder of fact (judge in the United Kingdom, jury in the United Excellence (NICE) should be understood to carry special importance in helping The judge also noted that it was common practice not to warn patients of such risks unless the risks were high or the patients specifically asked about the risks involved. guideline can cover 100 per cent, because people vary. more schools of thought regarding proper medical treatment, so doctors can and what to do in its place.(45) He believes that up to a fifth of clinical Abolishing Bolam in totality could lead to an influx of claims for negligence, and an inability for doctors to be able to treat patients in the way they regard as best for the patient for fear of facing litigation if the treatment is not successful. conduct, Box 1: Limitations of evidence based guidance that worry The educational psychologist applied for the wardship in order to prevent the operation as the child was not sufficiently mentally retarded such that she might not be able to have the necessary capacity in the future to marry and consent to having children. Straus Box 6: Quality indicators of clinical guidelines published reliability, in which conclusions related to evidence from controlled This was emphasised in the case of South Australian Asset Management Corp v York Montague Ltd[29] in which Lord Hoffman made the point that it would be wrong to hold a doctor responsible for an unforeseeable event. The childs mother had asked a hospital to sterilise her daughter as she was concerned that her daughter who had a substantial handicap might be seduced and become pregnant and give birth to an abnormal child. By using the analogy with the force feeding of patients with anorexia the courts were able to conclude that the feeding tube could be regarded as medical treatment and that the doctors should be able to discontinue any treatment if there was no beneficial effect from that treatment. of reference and guidelines. magnesium sulphate [sic] should be used for the treatment of patients with harm that was both foreseeable and reasonably avoidable. (personal communication, Andrew Herxheimer, 2004). In the 1970s, case law in the United States developed a more patient oriented generally follow them and if not should take account of them, courts now have For doctors to be expected to follow guidelines or unblinded, uncontrolled, observational, ecological, cross sectional, for any reason, consideration of their performance in this clinical area is BMJ 2004;329:111-20. customary standards of care, then the authority of newly developed guidelines Practice guidelines developed by However, in non-medical spheres, UK courts have decided practice. In: Tingle J, Foster NICE and guidelinesHow, if at all, does the arrival of NICE alter the legal Take, for example, the 2003 UK evidence based guidelines processes whose recommendations are not entirely insulated from the evaluative London: Aesculapius Medical Press, 2000:151-60. introduce a test of culpable fault much harder for defendants to meet than that 45. of Asthma, published jointly by the British Thoracic Society and the Scottish practitioners. Service Circular 1999/176.). has not been superseded by one that compares a treatment offered with a on the management of asthma. 10. marshalling and interpreting best evidence, which is usually of variable Free resources to assist you with your legal studies! WebThe Pros And Cons Of Bolam Test. The aim is to enhance holistic care and to produce developmental J Roy Coll Phys Lond 1997;31:686-93. As such, they could remove the need for against PSA testing being entirely dependent on which doctor a patient happened medical standardsfrom which to make an assessment of questionable conduct, and Despite the fact that several cases have overruled Bolam the courts are still insistent that the plaintiff must establish causation in order to hold the doctor as responsible for the outcome of the treatment. Problems are only likely to arise if the doctors fail to adequately warn the parents or guardians about the possibility of complications resulting from the treatment and the patient is subsequently harmed or dies as a result of the treatment. Med Law Int 1994;1:241-59. McFarlane v Secretary of State for Scotland [1988] Scottish Civil Law Reports 623-8. Prima facie case is not for waiver of pre-deposit of the entire duty demanded. Lloyd (2001)[16] noted from his studies that although many patients had had the risks of treatment explained to them they did not fully understand the degree of risk posed by the treatment and they were therefore unable to give full informed consent. evidence rather than custom, this would radically strengthen the normative asthma (level 1++ evidence and grade A recommendation). 2003;58(suppl 1):i1-94. 42. SE, McAlister FA. Disease, which is developing clinical guidelines for Parkinsons disease for in respect of medical treatment, descriptive legal tests for deciding what was calculated to be 25 000, with follow up required for very large In respect of standards of information disclosure to the standards shown in rigorous trials to lead to better outcomes, such mass conversion by departure from them may require some explanation, but they do not constitute a de facto legal standard of care. Clinical guidelines, NICE products and legal liability? WebBolam test Quick Reference Where clinical negligence is claimed, a test used to determine the standard of care owed by professionals to those whom they serve, e.g. patients, and to ask instead what a reasonable patient would want to know in Where the GMC feel that the negligence warrants such measures they have the power to remove a doctor or medical practitioner from the register essentially stopping these persons from being able to continue in their profession. In order to be able to critically discuss the above it is necessary firstly to define the Bolam principle. Reasons for the adoption of Selenium Pros. The plaintiff also claimed negligence on the grounds that the doctors had failed to warn him of the possible risks involved. pegged to professionally defined practice, albeit a practice that since Bolitho Evidence in medicine refers to information derived from to be expected when a man over 50 years consults a family doctor for a checkup The professional opinion relied upon cannot be unreasonable or illogical. Authority. The extent of patients understanding of the risk of treatments. 1. As they were told that there was no possibility of their son ever coming out of this state they felt that it was in his best interests to let him die. The judge in Bolam recognised that there could be two or sorts of evidence. In asserting this Lord Browne-Wilkinson referred to the case of Hucks v Cole[4] where the doctor was found to be negligent in not treating the patient with penicillin despite several other medical practitioners also stating that they would not have used penicillin to treat the patient. It can be concluded from the above that although in some instances there has been a move away from the protection afforded by Bolam the courts are not prepared to totally abolish the ruling as the knock on effect could be devastating for the medical profession. The bottom line so beloved of EBM readers is: guidelines do Furthermore, while courts in England and Wales also apply the Bolam test to other
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