Are Healthcare Workers Immune from Professional Negligence? A Review of Cases of Bolam and Bolitho

During the early 1950s, when the NHS was in its golden era, the medical profession was still “unregulated and paternalistic” in approach. Consequently, the medical profession had enjoyed an unreserved obedience from patients, and treated with great reverence by the society. John Hector Bolam1 was a patient who sustained fractures because the defendants applied unmodified electro-convulsive therapy on him. So, his suit for negligence provided the much needed opportunity for grounding the principles of medical negligence which was still in its early stage of development.2

The issue was unprecedented, and therefore the dictum of Lord President Clyde in the Scottish case of Hunter and Hanley3 became handy. The ruling gave doctors the latitude to set standard of care and justify their action by simply having their peer to support them. It placed the onus of proving “Wednesbury unreasonableness”4 on the patients in order to succeed in medical negligence litigation against a doctor. That was very difficult to prove. This attracted criticisms against Bolam that it provided excessive immunity to doctors, and difficulties to the patients. Several cases had been decided in favor of the doctors and allied healthcare professionals.

Similar opportunity arose in 1984 when the Bolitho5 rule was propounded which empowered the courts to intervene and determine if a body of medical opinion is indeed responsible, by subjecting their evidence to the logicality and risk/benefit analysis tests.

Issues for consideration include, to what extent did Bolam provide immunity to healthcare professionals and, post Bolitho, if the issues have now been resolved. To accomplish that, the author will examine the various court decisions pre- and post- Bolitho with a view to coming up with answer(s) to the issues raised.