The Bolam test in clinical negligence is simply stated.

‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…’

Often a practice is being measured against a standard common to a large body of similar practitioners, or to a smaller body of specialists, and no real difficulty arises in identifying that standard.  But what if this is a new and developing area of medicine?  How then is the responsible body identified, and indeed is there one?

Some guidance to the court’s approach in such cases was given in Eckersley v Binnie [1988] 18 Con LR 1. There is was said that a doctor should:

• Should not lag behind other ordinary assiduous and intelligent members of the profession in knowledge of new advances, discoveries and developments in his field
• Should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill
• Should be alert to the hazards and risks of any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert
• Should bring to any professional task no less expertise, skill and care than other ordinarily competent members of his profession would bring

On the other hand a doctor need not “be a paragon combining the qualities of polymath and prophet”.

In Vernon v Bloomsbury Health Authority (1986) [1995] 6 Med LR 297 the dosage of a drug used on a patient exceeded the manufacturers guidelines, but was nonetheless found to be a proper one; the court found that the guidelines erred on the side of caution, and the use of a higher dosage in the circumstances of this patient was not negligent. Similarly although the duration of treatment was outside the same guidelines, the court accepted that it could not be contended that no reasonably competent cardiologist or microbiologist would have contemplated adopting this regime in the particular circumstances.  The doctors were acting in the best interests of the patient in so continuing therapy and had conformed with standards set by a considerable body of responsible and distinguished medical opinion, as represented by the defendant’s own expert witnesses.

In Sims v Sims [2002] EWHC 2734  the court found that there was a responsible body of professional opinion that supported an entirely innovative form of treatment (for Creutzfeld Jacob disease) hitherto untried and unvalidated, and that concluding that a responsible body supported such treatment was ‘consistent with the philosophy that underpins the Bolam test’.

As so often the Common Law (judge evolved law) is sufficiently flexible to do justice in appropriate situations, so long as a coherent, reasoned opinion is presented in reliable expert evidence from a suitably qualified expert to support a view.

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