TRUMPINGBOLAM: A CRITICAL LEGAL ANALYSIS OFBOLITHO'S“GLOSS”

Abstract

I. INTRODUCTION THE Bolam test of breach-that classic and well-known statement of the law, with its genesis being a defendant's reliance upon a body of responsible peer professional opinion-is the "universal test" 1 of professional (and, in some contexts, non-professional 2) negligence. It is qualified, however, by the "gloss" 3 that was applied, courtesy of the House of Lords' 1997 decision in Bolitho v. City and Hackney H.A. 4 By virtue of that decision, peer professional opinion which purportedly represents evidence of responsible medical practice can be departed from, if that opinion is determined by the court to be "not capable of withstanding logical analysis", or is otherwise "unreasonable" or "irresponsible". 5 As has been judicially pointed out, Bolitho turned Bolam on its axis, in that the court, and not the medical profession, became the final arbiter of medical breach. 6 Since then, however, it has become a challenging legal question as to what features particularly characterise a peer professional opinion as one that is "illogical", "irresponsible", and "indefensible". Such labels are difficult to understand or to apply, unless fleshed out with content. As other academic commentary has rightly noted, although "lower courts are taking notice of [Bolitho], it is

Bolam with the benefit of hindsight

“…23,24 Despite this expectation and protection, Rachael Mulheron suggested (at 618) that Bolitho 'has changed the outcome of medical negligence lawsuits in more cases than perhaps the label of ''rarity'' would suggest'. 25 The following is not intended to be a definitive review of post Bolitho case law; a more complete consideration can be found in Mulheron's article. Two lines of cases are of interest.…”

Making Decisions About Decision-Making: Conscience, Regulation, and the Law

“…42 The question of whether the courts have actually used this right enough is, however, another matter. 43 Equally, both the common law and legislation combined, as we shall see below, to de-Bolamise best interests and, again, gain more control over decisions in that area. The same is, in theory, true of professional regulators, who can if they so wish demand that doctors act in a certain way.…”

Must the Surgeon Take the Pill? Negligence Duty in the Context of Cognitive Enhancement

“…In Mulheron's words, ‘if the risk of an adverse outcome for the patient could have been easily and inexpensively avoided by an alternative course of medical treatment or diagnosis, then the doctor's conduct will be held to be negligent, even if a body of medical opinion did endorse that conduct’. This is a general point about risk‐benefit analysis and the Bolitho approach, but we argue that its logic could be applied in the specific case of enhancers if they become sufficiently safe and effective.…”