Introduction
The standard of care in medical negligence has been dominated for over half a century by the test established in Bolam v Friern Hospital Management Committee [1957]. This test dictates that a doctor is not negligent if they have acted in accordance with a practice accepted as proper by a responsible body of medical opinion. For many years, this principle was the cornerstone for assessing clinical negligence claims. This essay will argue that while the Bolam test provided a seemingly straightforward and practical standard for courts lacking medical expertise, it was ultimately not ‘right’. Its failing was that it gave too much deference to the medical profession, potentially at the expense of patient safety and autonomy. The subsequent modifications to the test, particularly in Bolitho v City and Hackney Health Authority [1998] and its effective replacement in cases of consent by Montgomery v Lanarkshire Health Board [2015], demonstrate its inherent weaknesses.
The Bolam Test and Medical Paternalism
The Bolam test originated from the judgment of McNair J, who directed the jury that a doctor is not guilty of negligence if they have "acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art" (Bolam [1957], p. 587). The rationale was clear: the law should not force a doctor to follow one medical opinion over another when there are genuine differences of professional view. This principle was strongly affirmed in cases like Maynard v West Midlands RHA [1984], where the House of Lords stated that a judge's preference for one body of professional opinion over another is not a sufficient basis for a finding of negligence.
On the surface, this approach appears logical. It prevents the courts, which lack medical training, from setting the standard of care in a highly specialised field. However, the test was heavily criticised for promoting a paternalistic ‘doctor knows best’ culture (Brazier and Cave, 2016). It effectively allowed the medical profession to set its own standards of liability, meaning that as long as a doctor could find some experts to support their actions, they could avoid a finding of negligence. This created a risk that the courts might endorse standards of practice that were outdated, illogical, or failed to adequately protect patients, simply because they had support from a section of the profession.
The Bolitho Qualification
The courts eventually recognised the potential for the Bolam test to be too deferential. The first significant step in limiting its reach came in Bolitho v City and Hackney Health Authority [1998]. In this case, the House of Lords clarified that the body of medical opinion supporting a doctor’s actions must be ‘responsible’ and ‘logical’. Lord Browne-Wilkinson stated that if the professional opinion is "not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible" (Bolitho [1998], p. 243).
This ‘Bolitho gloss’ was an important qualification. It meant that the court was no longer required to accept a medical opinion just because it existed. Instead, the court reserved the right to scrutinise the reasoning behind the opinion and reject it if it was found to be illogical. This was a clear move away from the complete deference suggested by a strict reading of Bolam, asserting the court's role as the final arbiter of the standard of care. This development itself suggests that the original Bolam test was not entirely 'right', as it required judicial correction to ensure that patient safety was not compromised by flawed medical opinion.
The Rejection of Bolam in Consent: The Rise of Patient Autonomy
The area where the Bolam test was most clearly demonstrated to be unfit for purpose was in relation to the disclosure of risks and obtaining patient consent. In Sidaway v Board of Governors of the Bethlem Royal Hospital [1985], the House of Lords applied the Bolam test to decide what information a doctor should give to a patient. This meant that the amount of information disclosed about risks was a matter for medical judgment. This approach was widely criticised for failing to respect patient autonomy – the right of a patient to make their own decisions about their body and medical treatment.
This position was finally and decisively overturned by the Supreme Court in Montgomery v Lanarkshire Health Board [2015]. The court rejected the application of Bolam to cases involving the disclosure of risks. It established a new, patient-centred test, stating that a doctor has a duty to "take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments" (Montgomery [2015], para 87). A risk is ‘material’ if a reasonable person in the patient's position would be likely to attach significance to it, or if the doctor knows that the specific patient would attach significance to it. This ruling marked a fundamental shift from medical paternalism to a partnership model between doctor and patient. By abandoning Bolam in this context, the Supreme Court explicitly acknowledged that the old test was wrong because it prioritised medical opinion over a patient’s fundamental right to informed choice.
Conclusion
In conclusion, the question of whether the Bolam test was ‘right’ depends on the lens through which it is viewed. It provided a pragmatic framework for courts to adjudicate on complex clinical matters, and in that narrow sense, it served a purpose. However, its core principle of deferring to the medical profession was a significant flaw. It created an imbalance of power that undermined patient protection and autonomy. The gradual judicial retreat from the test, first with the logical analysis requirement in Bolitho and then its complete displacement in consent cases by Montgomery, is the clearest evidence that the original test was not right for a fair and modern system of medical law. While it remains relevant for matters of pure diagnosis and treatment, its dominance has rightly been curtailed to reflect the importance of patient rights and logical, defensible medical practice.
References
Brazier, M. and Cave, E. (2016) Medicine, Patients and the Law. 6th edn. Manchester University Press.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
Bolitho v City and Hackney Health Authority [1998] AC 232.
Maynard v West Midlands RHA [1984] 1 WLR 634.
Montgomery v Lanarkshire Health Board [2015] UKSC 11.
Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871.
