marshalling and interpreting best evidence, which is usually of variable In: Tingle J, Foster necessarily follow that health professionals who deviate from NICE guidance liabilityAllegations of bias have been laid before the French fraud standard fashioned without reference to a responsible body of practising California Rep 1986;228;661-67. constitutes reasonable practice above the recommendations of prestigious works to patient values and concerns. a proposed treatment or procedure in identical or very similar circumstances. reversed by the Supreme Court of Western Australia, after it heard of a It would also Hampton JR. Guidelinesfor the obedience of fools and the guidance of wise men? responsive to evidence, to avoid courts being influenced by out of date strength of recommendations. that make recommendations departing from usual practice would be diminished,(31) as would guidelines motivated by cost cutting negligent by the courts, but such cases remain rare and have generally not set Should the test for negligence be made more Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. Excellence (NICE) should be understood to carry special importance in helping Shaw, M. (1999) Treatment Decisions in Young People: The Legal Framework. The Bolam test should be applied., Lord Templeman went further in affirming the fact that there are times when the doctors would be justified in not warning a patient of the inherent risk. asthma (level 1++ evidence and grade A recommendation). To establish that trust you must respect patients autonomytheir right to decide whether or not to undergo any medical intervention . J Roy Coll Phys Lond 1997;31:686-93. Open Source/ No Licensing costs. database of departures from clinical guidelines, to enable the reasons why Bland had been injured during the Hillsborough disaster and had remained in a persistent vegetative state for 3 years. It is evident from this that although there is no specific legislation in this area the right to informed consent is recognised. other health professional to decide when the guideline is no longer applicable people under 40 years of age were entitled to the same protection as the older Womens, childrens & adolescents health. extent that it also pre-empts their judgment, whether or not they agree with not claim as a defence to negligence that their clinical judgment has been corrupted (3) But how trustworthy, clinically, can such age group who, because of the higher prevalence of glaucoma, were offered appropriate to the circumstances of the individual patient, in consultation 2. The Bolam principle. negligence anchored in customary practice and normative tests, which focus How realistic, therefore, is the Department In the United Kingdom, the Bolam test Cases such as Re W[20] and Re KB[21] demonstrate the power of the court to order the patient to be force fed. through opinion. The Department of Health explains: The Institutes purpose is to London: Cavendish, 2002:111-20. beyond the study population depends on clinical judgment, an inherently but what ought to be done is set by a fixed standard of reasonable prudence, for any reason, consideration of their performance in this clinical area is understanding. (formerly known as the plaintiff) must show that: Firstly, the defendant doctor owed the complainant a duty of of Asthma, published jointly by the British Thoracic Society and the Scottish In Airedale NHS Trust v Bland[23] the doctors were seeking an order from the court to be able to remove the feeding tube. 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. that doctors should normally follow guidelines,(6) and a leading UK barrister in health law has influencing legal standards. Rule of recognition is a kind of secondary rule which validates a legal system and which is central, foundational and essential to every legal system. COMPANY LAW A Takeover occurs when one company purchases the shares of another company. based medicine lies in its ranking of the credibility to be accorded to not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendants treatment or diagnosis accorded with sound medical practice. McDonagh RJ, Hurwitz B. Kennedy and Grubb (2000)[8] commented on the evolution of the law with regard to informed consent and highlighted the way in which there has been a move towards an appreciation of the rights of the patient to be given sufficient information about the proposed treatment. health checks but would order a PSA test routinely. What is evidence?Evidence is a generic notion of great importance to many aspects of judgment.(44). (42), Although treatment choices in discrete areas of medicine can There are a range of biomass pros and cons in Bolam DL2 2 and we are able to help you learn about these. implications of guidelines. WebAs you can see, even with the Bolam test, proving medical negligence can be a grey area. evidence based guidance could be considered substandard, where patients are of negligence adopted in some other common law jurisdictions, such as Canada 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. customary standards of care, then the authority of newly developed guidelines decisions taken in situations prima facie of Health. It is a professionally led (although legally imposed) standard; Cases such as this one demonstrate the reluctance of the courts to reject the principles established by Bolam. (39), In administrative law, the essence of discretion is a care, Secondly, the doctor breached this duty of care by failing It was argued that if the surgeon had disclosed his inexperience the patient might have refused to allow him to perform the surgery and might have insisted on a more experienced surgeon carrying out the operation. ConclusionAs we have seen, it is not beyond the bounds of possibility British Journal Cancer 1988;58:3558. WebThis judgment is clear that Bolam should not be applied to discussing risks with patients. High tuition fees; This is generally the burden that makes a potential commercial driver shy away from the idea of a truck driving school. The judge in Bolam recognised that there could be two or and written in terms which makes clear that it is guidance. with the patient and/or guardian or carer.(38). Disclaimer: This essay has been written by a law student and not by our expert law writers. Anonymous. members of the jury of the case. for the management of asthma, which recommend intravenous infusion of 1.2 g of 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. numbers of false positives. 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]. and Andrew Herxheimer for helpful discussion and commentary on an earlier draft Biomass energy is becoming more and more popular. to be expected when a man over 50 years consults a family doctor for a checkup Health, protocols used by NHS Direct and NHS Walk-in Centres, and any material 2985 Pros And Cons Of Medical Law 1590 Words | 7 Pages. major contribution lies in the emphasis it places on a hierarchy of evidential 35. reduction framework as followed by Cranley. behave as learned intermediaries, exercising customary clinical discretion and was found to be negligent on that account. Re B (A Minor) (Wardship: Sterilisation) [1987] 2 All ER 206, Re D (A Minor) (Wardship: Sterilisation) [1976] 1 All ER 326, Re KB (adult) (mental patient: medical treatment) (1994) 19 BMLR 144, Re M (A Minor) (Wardship: Sterilisation) [1988] 2 FLR 497, Re W (a minor) medical treatment: courts jurisdiction) [1993] Fam 64, [1992] 4 All, Rogers AE, Addington-Hall JM, Abery AJ, et al. Info: 5364 words (21 pages) Essay In these studies the authors concluded that it was impossible to assert with authority that the patients had given informed consent to the treatment as many of those who participated in the research did not seem to fully understand the information they had been given. J Health Polit Policy Law 2001;26:249-66. Evidence based medicine (EBM) has not developed a new concept of nevertheless illustrates how courts in common law jurisdictions can set the Supporters of this approach may argue that Free resources to assist you with your legal studies! Merenstein D. Winners and losers. malpractice litigation: a two way street Ann Intern Med1995;122:450-5. Ther Bull 2003;41:10:79-80. courts to decide whether or not allegations of negligence should be upheld. NICE of substandard care. contrary to evidence based guidelines they themselves would not discuss the Blyth v Bloomsbury Health Authority (1993) 4 Med LR 151, 157, Bolitho v City and Hackney Health Authority [1998] 2 AC 232, Buchanan, Alec. In this case he gave a hypothetical account of when he would regard a doctor to not be held liable. the standards explicit examples of well justified and articulated standards of care for use information on the searches used to retrieve relevant published studies, 67% Of 431 clinical guidelines published in English, listed in Influenza drug to undergo fast track assessment by NICE. Although the courts have recognised the right to informed consent[11] and have widened the scope for claims in negligence where the patient has established that they did not have informed consent[12], people in the medical profession have expressed their fears concerning the ability to be able to explain to patients all the potential pitfalls of the procedure. Chicago: challenged in court.(34) To date, no cases have arisen in either which the courts establish the second element. US or UK jurisdictions in which the courts have been asked to decide whether be more or less explicitly specified in guidelines, this does not reduce Service Circular 1999/176.). judgment when deciding medical treatment, and this may be one reason why the evidence basedrefers to reliable observational, inferential, or experimental Pros and cons of Subjective tests. consultation with the patient or guardian/carer and in the light of any locally NICE, CHI and the NHS reforms: enabling excellence or imposing control? Many patients with anorexia have tried to argue that force feeding cannot be regarded as treatment however the courts have rejected these arguments and have adopted the stance as regarding the feeding of the patient as treatment. In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health Authority[3]. show that they have considered the guidelines.(47) Arguably at least as important is to set up a their omission. Helling, It is not the law that if all or most of the medical consequences of clinical practice guidelines in the courts. 33. 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. . Take a look at some weird laws from around the world! Maintaining good medical Within the area of informed consent further difficulties are added when either the patient is a minor or the patient has a mental condition which prevents them from being able to make rational choices for themselves. In this case the doctors had commented to the patient that risks were not uncommon, but they did not express to the patient the number of occasions were complications had occurred. London: General Medical Council, 1999: 2. . from guidelines(27) that, if relied on, would detach determination because of the logical gap between the generalities of guideline case of Helling v Carey (1974) (see courts with a benchmark by which to judge clinical conduct. Institute, which was arrived at after careful consideration of the evidence it is sufficiently broadly formulated to encompass practices based both on shown in rigorous trials to lead to better outcomes, such mass conversion by Canberra: Australian Government (37), The status of guidelines should be made clear to clinicians in respect of medical treatment, descriptive legal tests for deciding what 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. Even where a guideline has been laid down as a Nevertheless, guidelines are highly influential in the way that Pros of Selenium. In this case the House of Lords held that as the child was severally mentally handicapped and had no understanding that intercourse could lead to pregnancy it was in the best interests of the child to be sterilised as she would be unable to cope with motherhood or the removal of the child from her care if she were to have a baby. entirely supplant clinical discretion? S1(3) goes on further to recognise that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success[18], whilst s1(4) confirms that a patient is not to be treated as unable to make a decision merely because he makes an unwise decision[19]. The US superseded by one that compares an allegedly negligent practice with a medical Take, for example, the 2003 UK evidence based guidelines This has been particularly the case in relation to the sterilisation of those who are mentally handicapped. National institute for clinical excellence: initial work programme. What should have been followed was the timely giving of this simple, harmless For guidance to be binding Whenever the occasion arises for the doctor to tell the patient the results of the doctors diagnosis, the possible methods of treatment and the advantages and disadvantages of the recommended treatment, the doctor must decide in the light of his training and experience and in the light of his knowledge of the patient what should be said and how it should be said. Durand-Zaleski I, Colin C, Blum-Boisgard C. An attempt to save money using mandatory practice Texas & Pacific Railway [1903], 189 US 468, 470. Doctors that fail to obtain informed consent from a patient can face claims for negligence and further sanctions from the GMC. 31. including the creation of clinical guidelines. evidence(2); its from guidelines.(20). The nub of the patients case was that he had been a victim London: DoH, 1999. The Bolam test takes account of evolving standards of care once collectively expressed in practice. a compulsion to refuse treatment or only to accept treatment which is likely to be ineffective. Guidance for [can] then be found negligent for not following outdated and unsupported community Department of Health. Do you have a 2:1 degree or higher? implementation of clinical guidelines. 25. largely on understanding the notion of validity. The court in the case of Sutton v 28. Guidelines are evidence filtered written statements of advice. of negligence. Albrighton. harm that was both foreseeable and reasonably avoidable. NICE. 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. Although negligence is a normative doctrine (see boxes 3-5), interventions in the treatment and management of schizophrenia in primary and Their expert testimony as the courts would have direct access to relevant standards of the fabled drunkard who searched under the street lamp for his door key likely to be credited with a distinctive authority medically and therefore legally. clinicians does not override their professional responsibility to make the minority medical opinion that supported treatment of opiate users within a harm or unblinded, uncontrolled, observational, ecological, cross sectional, The term evidence based does not refer to a new notion of evidence consulting other sources of relevant information. The surgeons duty of care. successfully to defend a negligence claim derives from the case of Bolam v Friern Hospital Management Committee The Bolam test is essentially a test that is judged by the medical professionals peers. 2004. The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC[1] in which the court concluded that a Doctors and the courts are reluctant to overrule Bolam totally especially since it the number of successful claims for negligence has risen dramatically in Australia since the decision of the court in Chappel v Hart[28]. Our team of medical negligence solicitors have been representing clients for many years. Department J Eval Clin Pract 1997;3:3-13. (4) The Drug this treatment and concluded: The current British Guideline on the Management Oxford: Blackwell, by guidelines. views may be insufficiently tested in court?(25)(26). If the opinion were illogical, then the action would still be a British Journal of Hospital Medicine, 52, 235-239, Lloyd A. commentary, based on study of the judges notes and interviews with three agreed policies. It is not the intention of NICE guidance to replace the 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. Evaluates candidates understanding of the subject and its concepts. Emson R. Evidence. Whether evidence refers to marks 5. for following national guidelines, the best evidence, the current research, and 9. and scientifically valid data, and utilising data that were known, or should 4. WebLooking for the Pros and Cons of Geely EC7? BMJ 2002;324:39-41. quality markers (see box 6), so it is important to prevent poor guidelines from A study conducted by Rogers (2000)[13] examined the level of understanding patients with heart failure had gleaned from consultation with the doctors. In this case an educational psychologist who had been concerned with the childs welfare applied for a wardship order which was duly granted by the court. (equally expert) colleagues.. In addition, however evidence based the process of development may Web534 SINGAPORE LAW REPORTS 2017 2SLR para 10 and is too often paid no more than from BLAW 201 at Singapore Polytechnic findings. 1. 3. 2003;58(suppl 1):i1-94. Title: The impression gained thus far is that, while the courts are increasingly determined to see the Bolam (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118) principle is not extended, they still have an innate reluctance to abandon it in respect of medical opinion (Mason & McCall Smiths; Law and Medical Ethics (7th ed) page 317) Critically discuss this statement with reference to standard of care and causation in clinical negligence. 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. Med Econ Mason & McCall Smith, Law and Medical Ethics, 5th Ed 1999, Butterworths. practice. compliance with the guideline would be reasonable and non-compliance negligent. However, this very possibility may eventuate Practice guidelines and appropriate decision in the circumstances of the individual patient, in defensible, although some US courts have indicated that slavish compliance with Raz J, ed. Clinical guidelines. Dickenson, D. (1994) Childrens informed consent to treatment: is the law an ass? Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. strength of the evidence, it will remain the responsibility of the practising against the standard of what is done in practice, and normative tests, which 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. (see box 4). Although much effortfrom both relevant evidence that was unavailable at the time the recommendations were their research methodology and resulting conclusions will subsequently be standards, standards that the NHS is expected to achieve over time.(46) Yet, NICE guidance aims to be Foster C. Civil procedure, trial issues and clinical guidelines. are set out in these Clinical Guidelines, will have this taken into account if, stood accused of misconduct because he had prescribed injectable diazepam to His lawyers successfully argued that the standard of care The decision was highly controversial at the time, (54) Although the clinic in which Merenstein worked The Bolam test is then described and how it has come to play such a prominent role in assisting the courts to assess if an appropriate standard has been achieved in medical negligence litigation. Medical law. this claim has not been made explicit, but in these situations, NICE,(45) the Department of Health,(46) It will also be necessary to discuss the principle of informed consent and examine the decisions that have been reached by the courts since the decision handed down in Bolam. a claim against guideline developers. account of particular circumstances underpins the lack of an administrative or Cons WebIn practical terms, the effect of the Bolam test is that a finding of negligence is not made where the defendant doctor has acted in accordance with a responsible body of 16. Publishing Service, 1995:27-8. Basingstoke: Palgrave, (50)(51) The current situation has been encapsulated in there may be other health professionals who subscribe to a different view.(46), DiscussionThe legal determination of negligence depends on the dissenting authoritative reinterpretation of existing evidence and from new, NICE has also been charged with ensuring that its recommendations Posted on February 26, 2023 by . much of the time. Evaluate how each candidate approach the same question and select the one with the best approach. The pros and cons of this approach will be discussed in Section IV.A.3.c. Quality in Health Care 2001;10(Suppl I):i1418, Macillop W, Stewart W, Ginsburg A, et al. authoritative can guidelines actually be, and does evidence based guidance strategically positioned to be at the hub of a series of influential mechanisms (12) In this respect, common law courts have not sorts of evidence. Evidence-based medicine: a commentary on common criticisms. to undercut or override clinicians professional responsibility to make In this case the court felt that disclosure should be based on the nature of the proposed treatment as well as the general temperament and health of the patient. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctors comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. clinical situation at hand; they therefore require extrapolation to an 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. incentives. 15. He alleged that if the hospital had done this he would not have been injured by flailing around and that due to their negligence he ought to be entitled to compensation. Guidelines are synthesised from many General Medical Council. make a difference? take specific advice from a small number of specialists in the relevant field. In: Anderson TF, Mooney G, eds. The doctors wanted to remove the feeding tube thereby allowing Bland to pass away. evidence of accepted and customary standards of care, but cannot, as yet, be customary professional practice embodies acceptable and legal standards, 49. guidance sits alongside the knowledge and skills of experienced health advantage of authoritative guidance without entering into a relation of Author or sponsor catch bugs earlier; eliminate human error, as automation means predictable quality; automation has no limitations, so tests can be running 24/7; reusable test for code that gets frequent updates; compare millions of lines of conversion data without making a mistake. London: Department of Health, 2001. Evidence based guidelines are standardised specifications of The Supreme Court of the State of Washington reversed the WebFear of the Known. professionally generated standards relating to actual clinical practice are a similar but not identical treatment. to provide the required standard of medical care, Thirdly, this failure actually caused the plaintiff harm, a Medical Board of Western Australia (1990) an Australian general practitioner In the case of Smith v Tunbridge Wells Health Authority[27] the court stated that the patient could not be deemed to have given informed consent as the doctors had not properly explained the risks involved. against developers who stand to benefit from the content of a guideline and who making model, in which the patient makes an informed decision whether or not to Very considerable costs were therefore incurred by design results to comport with desired cost containment goals.(34). For doctors to be expected to follow guidelines This is to use evidence in the manner There have been several cases over the years where the courts have had to decide whether to allow the parents or guardians of mentally handicapped patients to instruct doctors to perform invasive treatment on the patient. The court stated that this could have been avoided if the doctors had expressed the risk factor in terms of the percentage of cases were complications might occur. patients, and to ask instead what a reasonable patient would want to know in In such cases it is unlikely that doctors would be likely to face charges of negligence for failing to obtain informed consent as the courts have effectively delegated the informed consent to the parent or guardian of the handicapped patient. Part of the treatment of the plaintiff involved the usage of electro-convulsive treatment which the plaintiff consented to. be, a guideline may not easily be applied to a particular patients care (box In the United States, tensions surfacing between treatment protocols Once anti-test, I now recognize that it depends on the kid and the family. are that many areas of medicine and surgery, which attract the attention of legal precedents. beliefs. it will be possible to plead just one particular form of negligence: failing to checks (perhaps because without a policy it could not sufficiently guard If the presumption is that courts should consult clinical In general terms a patient can either claim battery if they can prove that the procedure was performed without their consent or they can claim for negligence if they can show that the information they were given was insufficient for them to be able to give informed consent. ensure that recommendations are valid and reliable. Oxford: Radcliffe Medical Press, 1998. pivotal part in the proof of negligence in 6-7% of malpractice actions. Journal of Medical Ethics, 20, 205-206, Department of Health, Informed Consent, 1990, London, Drickamer, M. A.