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From Hunter v Hanley to Bolitho v City and Hackney Health Authority: Lessons Learned

Written by Siobhan MacMaster (3rd Year LLB) 

The relationship between law and the medical profession is intricate, ever changing and can give rise to much academic debate. With medical advances and an increase in a litigious culture, it is essential that the law evolves in order to protect both the medical professionals, providing the care, and the patients, to whom it is intended to be given. Hence, the improvements which have been made by virtue of common law, from the first cases of Hunter v Hanley[1] and Bolam v Friern Hospital Management Committee[2], to the more recent case of Bolitho v City and Hackney Health Authority[3], are essential and should be regarded with utmost importance.


Previous to the twentieth century, doctors were considered pillars of the community. Their actions went largely unquestioned by those they treated, since – of course – the doctor knows best, a stance which is reinforced by Lord Woolf[4]. However, since then, opinions have changed and patients have become more inquisitive; for one, due to the increased involvement of the media in medical negligence cases, allowing a greater number of people to have access to such information. This media attention, amongst other factors, has been one of the main causes in the establishment of the litigation culture which has arisen within the UK, making it progressively harder for doctors to carry out their duties unhindered; and contrariwise, for those patients who have cases which should be heard, to claim or proceed with their actions.


When bringing a negligence action, first the claimant will have to satisfy the requirements: that there was a duty of care owed to the claimant; that this duty was breached in some way; and that this breach caused the harm in question[5]. In any context, this is a difficult test to meet but is extremely so in the context of medical negligence given the usually paternalistic view adopted by the judiciary towards those who are tasked with treating the public within the healthcare service. Further, since the onus rests upon the claimant to provide evidence as to their plight, it is only the strongest claims and most persistent claimants which will make it past this first post.


However, in 1955, the case of Hunter v Hanley came before the Court of Session and provided a breakthrough in the area of medical negligence by introducing a test for the standard of care which doctors should adhere to. The test, created by Lord President Clyde, was tripartite and the following conditions would have to be established: (1) that there was a usual and normal practice adopted in the scenario in question ; (2) that that practice has not been adopted; and (3) that the course adopted was such that no doctor acting with ordinary care would have taken it.[6] This allowed a foundational mechanism for judge’s to rely upon and refer to when such medical negligence cases arose, but it would not be long until it was altered and refined.


As it stood, the Hunter v Hanley test appeared to rely quite significantly upon the medical judgment of the professionals administering treatment, and the norms which they were accustomed to.  As a breakthrough concept this was revelationary and should not be criticised too heavily. Further, it exhibited the first instance where the judges were actively interfering and attempting to improve the protections offered to patients and doctors. It could possibly be regarded as one of the first steps away from the paternalistic views usually adopted when cases arose involving such medical professionals.


As has been established, the Hunter v Hanley test was far from perfect. Two years later, the case of Bolam v Friern Hospital Management Committee[7] came before the courts and allowed developments to be made to the test which claimants and doctors had to satisfy. Bolam concerned a mentally ill man who signed a consent form agreeing to undergo electro-shock therapy without being made aware of the fact that muscle relaxants and constraints could be used to decrease the (admittedly small) risk of skull fractures as a result of the procedure. Unfortunately, this risk became a reality and the patient sued for negligence in the way he was treated and for the fact he was not informed of the risks. However, due to the fact that there were two alternative medical bodies of opinion at the time at which the case was heard, the jury found for the defendants.


Nonetheless, the Bolam test which arose from this unfortunate incident stated that “a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view”[8] and was one of the main reasons that the paternalistic view of the medical profession continued. In Lord Scarman’s words in Sidaway, “the standard of care is a matter for medical judgment.”[9] This highlighted the belief that doctors should be judged by their peers in the medical profession rather than by a standard set by the courts. Although this would be, to some extent, understandable in cases where the subject matter was very technical or where it requires a level of expertise which the court lacks; it should not be left totally up to the medical profession to set their own standards. If this was allowed to occur, there would be a fear that they could be either too lenient or too strict; or create a standard which focused more on the protection of doctors than in making the access to justice of those with claims which could be successful easier.


Further, there was a fear that the medical profession would appear to be above the law. Therefore, if there was a case in which a doctor had allegedly acted negligently but there was an expert who could testify that he would have acted in the same way, would this mean that the doctor could not be held liable? Moreover, it could be said that great judicial protection was needed for the public and that the test in Bolam was insufficient.[10]


Bolam was described by many as a universal test[11] which could be applicable in a wide variety of situations. The words of McNair J were somewhat misinterpreted.[12] This was the test of choice until 1997, when the Bolitho v City and Hackney Health Authority case adapted and improved upon the test yet again. However, it is clear that even after this further development, the judiciary are very reluctant to overrule expert evidence from doctors and so a paternalistic residue still remains. The Bolitho test qualified the Bolam test in an attempt to bring the judgment of medical negligence standard of care to lie with the court and not with the medical profession. It established that in order for a doctor’s evidence to be preferred, it must be proven that there was a reasonable and reliable body of medical opinion who could withstand logical analysis and the test of responsible practice. This would appear to show an increased willingness of the courts to question the actions of medical professionals and be a step in the right direction towards doctors being removed from the pedestal they currently sit upon. This removes any unfairly preferential treatment or deference they may receive from the courts. Bolitho has been tempered by Lord Browne-Wilkinson stating 'in the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion'[13] and that in his view ‘it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable.’[14]


It must be said that, to a certain extent, I agree with the view of Keown[15] that Bolitho is a step in the right direction “but does not travel far enough down the road of judicial scrutiny.” Although it would admittedly be rather difficult to work out where to draw the line in a fair way, judges would also have to attempt not to be overly prejudicial towards the patient or the doctors. Further, it is also understandable that judges would prefer not to expose themselves to misunderstanding medical terminology by not deferring wholly to the medical profession. However, it is obvious that in some cases deference to the medical profession will be of benefit (for example, where complex procedures are the subject matter of the claim) but the judiciary must be careful not to overstep their mark. Further, there is the possibility in cases where the tests in Bolitho and Bolam are invoked by the judges, they themselves, and the juries, simply prefer the evidence of one expert to another, based upon their prowess in public speaking or their impressive list of qualifications. It has been shown that from time to time ‘once a witness has been granted even ‘putative’ expert status, an important psychological threshold has been passed.’ [16]


And so, the question of whether the test for the standard of care in medical negligence relies too heavily upon medical judgment is a difficult one to definitively answer. Although the test has been greatly improved upon since the case of Hunter v Hanley where the focus was solely upon the usual standard adhered to by doctors, set by the medical profession itself; it is still not completely the court’s decision which is authoritative regarding the standard of care. Bolam, as has been seen, appeared to be too lax and too easily applied to a wide variety of situations where it should not necessarily have been, due to misinterpretations in that case. Bolitho applied a gloss and narrowed Bolam’s scope, returning the court to the position of final arbiter of the standard of care. Therefore, it appears that although the reliance upon medical judgment has slowly been limited, there is still a certain dependence upon it which is yet to be fully eliminated, and is unlikely to be eliminated fully anytime in the near future.


[1] Hunter v Hanley 1955 SLT 213

[2] Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

[3] Bolitho v City and Hackney Health Authority [1997] 4 All ER 771

[4] Woolf, Lord ‘Are the Courts Excessively Deferential to the Medical Profession?’ (2001) 9 (1) Medical Law Review 1

[5] Donoghue v Stevenson 1932 [HL] 100

[6] Lord President Clyde at 217 Hunter v Hanley 1955 SLT 213

[7] Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

[8] Bolam v Friern Hospital Management Committee [1957] 2 All ER 118         

[9] Sidaway v Board of Governors of Bethlem Royal and the Maudsley Hospital [1985] 2 WLR 480

[10] Mulheron R. ‘Trumping Bolam: a critical legal analysis of Bolitho's "gloss"’ (2010) Cambridge Law Journal 69(3) 609-638

[11] ibid

[12] Teff, H. ‘The standard of care in medical negligence – moving on from Bolam?’ (1998) 18 Oxford Journal of Legal Studies 473-484 

[13] Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

[14] Maclean, A. ‘Beyond Bolam and Bolitho’ (2002) 5 Medical Law International, 205-230

[15] ibid

[16] Quick, O. Medicine, Mistakes and Manslaughter: A Criminal Combination (2010) Cambridge Law Journal Vol 69(1) 186-203

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