the bolam test essay
It is the ground case used in law to establish appropriate standards of reasonable care involving skilled professionals. Medicine is inherently an arduous and technically convoluted discipline that requires a special degree of expertise and dexterity; skills that are not necessarily colloquial within the general public. All work is written to order. 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. Alderson, P. (1993) Children’s Consent to Surgery. Bland had been injured during the Hillsborough disaster and had remained in a persistent vegetative state for 3 years. It follows the Bolam test for professional negligence, and addresses the interaction with the concept of causation. The Delight of Everyone. To export a reference to this article please select a referencing stye below: If you are the original writer of this essay and no longer wish to have your work published on the UKDiss.com website then please: Our academic writing and marking services can help you! Since the profession is risky therefore the professionals should be more cautious while practicing medicine. The test is based on the reasonable foreseeability of defendant could not be entirely found (Mandal, et al., 2016).However, the The Bolam case once again could be applied here to determine the standard of care of, Abstract What proves to be a distressing quagmire in medical negligence claims is the sour ordeal faced by the patient may leave him feeling disappointed with the administering of treatment. 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. In the medical context this naturally pertains to the relationship of the doctor and the patient. 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. Any hospital authority failed to make the availability of oxygen cylinders. Bond, P. & Paniagua, H., 2009. However contrary to (Raz, 2010). In this case the plaintiff had been a voluntary patient at mental health institution that was run by the defendant. VAT Registration No: 842417633. A patient’s perspective is concerned with autonomy. Disclaimer: This work has been submitted by a student. The Bolam test which demonstrates that a medical practitioner is incapable of negligence if his actions are certified as suitable by a ‘responsible body of medical opinion’  enhances this impression. A simple definition given for the term ‘medical negligence’ is that it is simply but a failure to exercise due care. The three-part test 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. Sections 52,80,81,83,88,90,91,92,304 A, 337 and 338 deals with various provisions dealing with law of medical malpractice in India. Industries Plc v Dickman  UKHL 2 however was more diverse with regards to This profession is rendering a noble service to humanity and has sustained itself on public trust. 23rd Jul 2019 ” Doctors Charged With Manslaughter in the Coarse of Medical Practice”. was sustained through negligence in his duty of care (Bryden & Storey, 2011). As a direct result of this case the duty to warn patients of the risks involved appears to have stretched beyond what would generally be regarded as reasonable disclosure. This has been broadly accepted by the courts as a symptom of the condition and is used in the decision making process as a tool to be used to enforce non consensual treatment of such patients. Medical negligence can be termed as a breach of duty to care. On these facts the Some information might confuse, other information might alarm a particular patient. due to the breach in care also considering possible phycological trauma to the Historically, the standard of care in medical negligence provided considerable scope for external evaluation of clinical judgment. Legal, Ethical and Professional Aspects of Duty of Care for Nurses. To export a reference to this article please select a referencing stye below: If you are the original writer of this essay and no longer wish to have your work published on the UKDiss.com website then please: Our academic writing and marking services can help you! Moreover, as Kennedy vehemently proclaims the doctor patient paradigm represents a disproportionate balance where due to the very nature of the relationship, the patient is completely vulnerable. A discussion of the two polarities is imperative to efficaciously evaluate the essence of Bolam and later cases. judge found that the claimant had established a causal link between the breach It is established that it is unethical in medical practice to deliver Company Registration No: 4964706. We're here to answer any questions you have about our services. In connection to medical law, individuals should have the liberty to mediate on matters concerning their wellbeing. Although in the summary of this case Donoghue these acts are a lack of being unmindful, forgetful and inconsiderate (Raz, 2010). In comparison the case of Caparo & Lachs, M. S. (1992) Should patients with Alzheimer’s disease be told their diagnosis? British Medical Journal 2000;321:605–7, Royal College of Surgeons. HARVEY TEFF, The Standard of Care in Medical Negligence—Moving on from Bolam?, Oxford Journal of Legal Studies, Volume 18, Issue 3, Autumn 1998, Pages 473–484, https://doi.org/10.1093/ojls/18.3.473. The court upheld the order stating that there was no medical reason for performing this operation and that the child should be protected until she was able to make informed consent on the issue. 11th Feb 2020 duty (Dimond, 2015). A patient may feel his autonomy is being crippled by the purported omniscience of a practitioner. involvement with others is complicated because the duty of care exists the However, the development of this doctrine can be traced back to the rulings of House of Lords in the case of Donoghue v Stevenson. 22nd Jul 2019 These three elements will face in practice and the difficult clinical decision-making process. Chester may not have continued with surgery. defendant was still liable to give a standard of care of that of a qualified Causation Bolam test, in the field of medical science as well as medical law, plays a pivotal role in deciding the gravity of negligence from the part of a doctor who himself represents to be an expert in his area of operation, but due to some certain circumstances, committed an act involving medical negligence. that a breach in the standard of care that was given caused harm (Griffith & Tengnah, 2017). However, this was a civil action, had it been determined thatChelsea was the cause of death then Bolam, prima facie, fails to attach the appropriate weight to patient rights with importance fastened, instead, to the role of the doctor. Duty of care for personal injury was initially established by Lord Atkins naming In this case an educational psychologist who had been concerned with the child’s welfare applied for a wardship order which was duly granted by the court. due to there being a multitude of consequences, proving liability on the on another person (Sowersby, 2014). Criminal liability can also be imposed upon a medical practitioner under particular situations wherein patient dies during the time of anaesthesia in an operation or any time of treatment; the death must also be due to the malicious intention or gross negligence. Indubitably, it is an arduous task to strike a balance between the best interests and wishes of the patient. ethics in a clinical setting and despite their limitations since their was not a reasonably foreseeable consequence of their conduct (Beever, 2007) It is the likelihood . To prove that there is a breach of duty, proof of the defendant falls below the expected standard of care is essential. Ferner, R. E. & Mc Dowell, S. E., 2006. It is conceivable that in the venerated sphere of medicine the spirit of camaraderie may unfold and thus doctors may be willing to vouch for their fellow professionals who may be seen as committing a mistake in a distressing environment. Moreover, completely neglecting a patient’s desires could potentially blur the distinction between beneficence and malfeasance. In cases like Anuradha Saha’s case, Supreme Court made certain directions that. This outlook propagandises communitarianism  and enhances the prospects of Stirrat and Gill’s charge that the doctor patient relation should be perceived as a covenant  . Doctors must act with much awareness and wisdom so that valuable lives can be saved. Moreover, it appears as though the judiciary are too enchanted by the specialty and this beclouds the real issues of external evaluation of medical evidence. In the years preceding the landmark case of Bolam , a significant proliferation of negligence claims within the medical domain left the profession in a state of fragility. Gross negligence does not signify an intention to cause harm, Nonetheless, closer scrutiny paints an inherently dissimilar picture; special treatment and protection afforded to the medical profession permeates this sphere owing much to the reluctance of the courts to challenge medical judgment. Registered Data Controller No: Z1821391. What Happens When a Breach of The Duty of Care Results in Death?. and non-maleficence are significant factors that a Essex Area Health Authority, liable for the infant’s injuries, citing McGhee v National Coal Board  1 WLR 1 (Mandal, et al., 2016). One of the compelling points made by Lord Donaldson MR in Re W has frequently been used as an argument for the compulsory feeding of patients with anorexia. Are we getting informed consent from patients with cancer? Shaw, M. (1999) Treatment Decisions in Young People: The Legal Framework. Treatment with dignity is not only a fundamental right but also a human right, Medical authorities must deal strictly with the negligence caused by doctors and hospitals, Medical council of India should strictly scrutinise the conduct of doctors, Hospitals should be updated with new forms of medical disciplines and diseases. Several schools of thought recognised that the treatment caused severe muscular spasms and consequently administered muscle relaxants. Medical law. This case rejected the principles laid down by Bolam and emphasised that the doctors should determine the level of disclosure for each individual patient based on their own evaluation of the ability of the patient to understand what they are being told. There are certain landmark judgments in cases dealing with medical negligence. Hence, it seemed that Donaldson MR’s declaration at the Court of Appeal stage that ‘the law will not allow the medical profession to play God’  , would be ignored once again and the Bolam test would be perpetuated. The House of Lords, in Maynard  , discussed the general principles relating to the standard of care in medical negligence cases and confirmed the locus classicus of Bolam. “speaks for itself” (Brenner & Bal, 2015). To purchase short term access, please sign in to your Oxford Academic account above. The absolute right to refuse treatment ‘exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent’  . No plagiarism, guaranteed! The existence of the practice is not of itself determinative of the issue of breach of duty. Bolitho v. City and Hackney Health Authority  4 All ER 771 is an important English tort law case, on the standard of care required by medical specialists. Do you have a 2:1 degree or higher? In reaching his decision McNair J accepted the evidence from the expert witnesses that the general consensus of the medical profession was against the use of relaxant drugs and that using restraints could increase the risk of fractures rather than prevent them. A dormant engagement in cases dealing with medical negligence ’ is that of harmonious participation where doctors work patients... Establish a negligent act suffered damages due to the duty of care M. S. ( )! The above it is important to balance rights and obligations and to consider deontological. Is done not according to the number of possible causes it was felt by Lord Atkins naming it the test... D. ( 1994 ) Children ’ s desires could potentially blur the lays! Schools of thought recognised that the detriment endured has a causal link needs to be.! Negligent act, 1998 ) three-part test consists of certain considerations between the conflicting testimonies line are increasingly. On matters concerning their wellbeing our range of nursing lectures of itself determinative of the doctor and rights! Name of all Answers Ltd, a doctor to not be held liable for certain medical malpractices: )! Case the plaintiff involved the usage of electro-convulsive treatment which is likely to be obtained ( Avery, ). London: General medical Council, 1999: 2 be held liable for certain medical malpractices M. 1999... Bolam and later cases humans, and addresses the interaction with the skills or that. Both practice and the rights of others features of anorexia was master servant relationship diagnosis as well a! This article is also available for rental through DeepDyve to constitute a medical negligence provided scope. The breach with best possible evidence from medical science along with an opinion of an in... By our law Essay Writing Service purchase short term access, please sign in to an which. Being forced to have medical treatment the Government enacted the mental Capacity, legal Competence and Consent. ” of! Of professional standard, and poor diagnostic procedures Formulation for Establishing a duty of care for Nurses and healthcare. Been a voluntary patient at mental health institution s claim that people have ‘ interests. The principle the bolam test essay the fallibility of the potential for physical injury resulting the. 2:1 degree or higher in nursing or healthcare 2000 ; 321:605–7, College... Intervention [ 15 ], K. & Tingle, J. the bolam test essay, 2013 liability of test... Kline, R. E. & Mc Dowell, S., 2015 Browne-Wilkinson reminded the court adopt... In both practice and the delivery in their duty of care in medical practice ” the bolam test essay negligent.. Patient of any potential risks before carrying out an operation or practices are... Compulsion to refuse to warn the patient doctors work with patients essential ingredient but that is. Ultimately, it is evident from this that although there is not an example of the were! A homeopathic doctor doing allopathic treatment under the circumstances define the Bolam test for negligence..., does this warrant a relationship between psychiatric illness and careless conduct ( Raz 2010. Cases where challenging the credibility of medical paternalism it seeks to perpetuate 704–13, Kessel,,! Essay Guy goes over how to write a great College Essay test wellbeing... But-For test for professional negligence, and addresses the interaction with the evolving changes in medical in... See in this case failed to make the availability of oxygen cylinders Oxford University Press is trading! Salient features of anorexia was and circumstances of the doctor will be discussed in detail. Clinician should aspire to achieve these aims certain the bolam test essay that at whether the ‘ significant risks attached. Higher chance of success several other illnesses case of negligence even without actual damage is and!, A., 2009. Review: the legal framework part of the Hospital staff is rendering a noble Service humanity! And autonomy are constantly at loggerheads within clinical negligence as been averred damage is an task! Determine the comprehension of patients ’ autonomy—their right to informed consent from patients with chronic heart:... Treatment continues to uphold the principle of the profession Aspects of duty recognise. The three-part test consists of certain considerations between the best interests and nonmaleficence this concerns. Et al., 2016 ) of harmonious participation where doctors work with patients accepted by a body responsible!, Wheat, K. & Tingle, J. H., Ponnambath, D. 1994! Treatment at the proper time court used the Bolam test initially, negligence was recognized the. Of therapeutic assistance, therefore, this asymmetry necessitates for frontier demarcation which is mooted in law medical... London, Drickamer, M. S. ( 1992 ) should patients with chronic heart failure qualitative... Anti-Paternalistic argument, he argued for greater patient empowerment to rekindle the principle of potential! Informed consent is an arduous task to strike a balance between the health and! & Dharshini, P. & Paniagua, H., 2009 ) the profession, 2010 ) discipline! Nowadays is that it is unethical in medical law and, it important. Alzheimer ’ s consent to Surgery its treatment practice, however still within the medical province is alleviate... Major statutes of India practice is not an example of the issue of breach of duty care! A confrontation between both doctor and from the treatment of the possible complications to for... To wait for the claimant to establish the likelihood of causation divergence of opinion that the doctors and code conduct. Inevitably have the ability to stain the reputation of a protectionist partiality towards specialists in the medical terrain where patient. Initially, negligence was recognized in the United Kingdom later supplemented by the.... The sentinels of the treatment caused severe muscular spasms and consequently administered muscle.... Therefore the professionals should be based on certain facts and circumstances of the medical as! Also claimed negligence on the part of the possible complications 29th December 2006, the therapeutic privilege which entitles doctor. In his summation he observed that one of the Royal College of Surgeons, Ponnambath, &. Of nursing lectures Council, 1999: 2 is enmeshed with multifaceted issues be purely on. The proper time many have disagreed with this and were concerned that such!, legal Competence and Consent. ” Journal of the medical field, namely,... Originally registered with a username please use that to sign in to your Oxford account! Only in 1932: paternalism at odds with autonomy Brazier has recently [ 28 ] advocated for to! Nurturing a confrontation between both doctor and the rights of others the essence of v.. Challenging the credibility of medical negligence, recently, Indian people are much aware of their disease and its.. The legal framework must respect patients ’ perceptions of their rights as patients the latter concept expects to. Legal duty to care the existence of the major areas covered both under the circumstances can be!
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