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The Bolitho Test: revolutionary or repetitive?

In this article, Sarah Hassall assesses whether the case of Bolitho v City and Hackney Health Authority, is the foundation for the ‘veto power’ over medical opinion and whether the true origin of this power affects the impact Bolitho has had on the standard of care.

One of the key aspects of a clinical negligence case is establishing the standard of care. Over the years, the case law in this area has been quite deferential to the medical profession, leaving the question of whether or not a given standard of care is acceptable to medical experts. This practice was consistent until the case of Bolitho[1], which essentially gave the court a ‘veto’ power over medical opinion in instances where this body of opinion is considered illogical. This case marks the first time the courts have announced they are the final arbiter when it comes to medical standard of care; however, is it truly the first time they have had the power to do this? The aim of this article is to assess whether Bolitho is the foundation for this ‘veto power’ and whether the true origin of this power affects the impact Bolitho has had on the standard of care.


The first discussion about the standard of care arose in the Scottish case of Hunter v Hanley[2]. Lord President Clyde gave three factors to consider when assessing the standard of care:

 “first of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.”[3]

This was adopted by the English courts in Bolam[4] just a few years later, and the court expanded upon the ‘usual and normal practice’ concept highlighted in Hunter v Hanley. Bolam stated that 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.”[5] This introduced the idea that the doctor must be conforming to some medical body of opinion, but as it was later stated, “a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”[6]

            The general consensus before Bolam, and indeed in its general aftermath, was that the courts would not determine the substance of the medical standard of care. Certainly, as it was said in Sidaway, “the standard of care is a matter of medical judgment.”[7] Bolitho changed the tone of this significantly. Lord Browne-Wilkinson accepted the Bolam test for the standard of care, but added that “if it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.”[8] The essence of the test remained unchanged; instead what we see is a shift from deference to control. Some academics have referred to this as Bolitho’s ‘gloss’[9] since, instead of reformulating the old standard, it simply adds an extra layer of protection, which in the vast majority of cases won’t be necessary.  Lord Browne-Wilkinson himself stated that it would “very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable”[10] yet the safeguard has been put in place nonetheless.



The Aftermath of Bolitho

The suggestion that Bolitho will rarely be used gives rise to an unexpected phenomenon. As Jonathan Herring puts it, “many of the cases after Bolitho do not cite the case and simply refer to the Bolam test. This itself indicates that the courts might not regard Bolitho as having made a change of any great significance.”[11] It appears that Bolitho is not the first point of call in negligence cases, an interesting pattern considering the apparent ‘superiority’ and support for Bolitho over the Bolam test.

            So, what of the cases which do cite Bolitho? Bolitho’s crucial point is this addition of the ‘logical analysis’ requirement. One would expect the language of ‘logic’ to dominate the case law following Bolitho however this is not universally the case. Since its inception, there have been a few landmark cases following Bolitho’s wake which, rather than follow this new ‘gloss’, lean towards the old language of Bolam.

            The first of these cases is Marriott v West Midlands RHA[12]. In this case a GP was asked to see a patient at home who was complaining of headaches after suffering a serious fall. He determined that the patient did not need to be referred and prescribed him pain killers. It unfolded that the patient had a blood clot in his brain which caused damage leaving him disabled. There was a body of opinion which supported the GP’s decision to not seek further tests; however, the court held that “it could not be a reasonable exercise of a general practitioner’s discretion to leave a patient at home and not to refer him back to hospital.”[13] Here we see a determination based on the word ‘reasonable’, reminiscent of Bolam.

            This is a stark contrast from the next case, Wisniewski, in which a Judge at first instance attempted to employ the Bolitho test by choosing not to accept the doctor’s expert body of opinion. On appeal Lord Justice Brooke stated that “it is quite impossible for a court to hold that the view sincerely held by [eminent doctors] cannot logically be supported at all.”[14] The contrast lies in the language, although that is as far as it extends. While the case involves talk of logic, the Bolitho argument was rejected; the conclusion arrived at is one which could have been arrived at based on Bolam alone, eliminating the need to use the Bolitho test in this case.   

            Of course, it would be rash to make an assumption based on these cases alone, however one important inference may be drawn: despite the decision in Bolitho, the courts have a tendency to rely heavily on Bolam. There is a general pattern that the court will attempt to make a finding based on the reasoning in Bolam, only resorting to Bolitho to justify their ability to find that the body of expert opinion is illogical.




The Language of Bolam


The whole rationale behind the decision in Bolitho was that the courts felt they needed to be in control of the final determination of the standard of care, a power they did not believe they had from Bolam alone. Roch LJ commented that the Bolam test “leaves the decision of negligence or no negligence in the hands of the doctors, whereas that question must at the end of the day be one for the courts.”[15] This statement is rather blunt, an interpretation which Lord Woolf has noted: “I do not say that the [Bolam] test has always been formulated this bluntly, but that is how it has often been understood.”[16]

If we look back to Bolam it is quite clear that the language of reasonableness is already present: “a mere personal belief that a particular technique is best is no defence unless that belief is based on reasonable grounds; ... that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion ... that clearly would be wrong; ... it is not essential for you to decide which of two practices is the better practice, as long as you accept that what the defendants did was in accordance with a practice accepted by responsible persons (my emphasis).”[17] Although not directly stated, it is obvious that there is more to the test than is often cited; the body of opinion adopted must satisfy a ‘reasonableness test’. This gives the court much more power than we are led to believe by the ratio in Bolitho; the courts are still the arbiter in the Bolam test. While, admittedly, in Bolam there is a preference for deferring to the medical profession and trusting their judgment, this does not eliminate the court’s ability to step in when necessary. Relying on Bolam, then, does not appear to be a problem; the control sought in Bolitho can be found in the language of Bolam.



The Interventionist Movement


Before Bolitho was decided, the case law was already progressing from blind acceptance of medical bodies of opinion, and towards higher scrutiny of the responsibility and reasonableness of those bodies. Teff notes that “by the mid-1990’s, in both Court of Appeal and first instance decisions, there are clear signs that judicial perceptions of reasonableness and permissible risk-taking are relevant to the determination of the requisite standard.”[18] There is a whole host of cases which clearly express this. In Loveday v Renton it was said that “the mere expression of opinion or belief by a witness, however eminent ... does not suffice. The court has to evaluate the witness and the soundness of his opinion.”[19] Again in Knight v The Home Office it was held that “the reasons given by the doctors for their decision, however, should be examined by the court to see if they stand up to analysis.”[20] Indeed, even Lord Browne-Wilkinson in Bolitho conceded that this assessment was already prominent in the courts: “the use of these adjectives – responsible, reasonable and respectable – all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis (my emphasis).”[21] A key pre-Bolitho case, Hucks v Cole clearly states this position. It was held that if the courts find that “it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence.”[22] It was noted by Mulheron that “this case may have been pre-Bolitho, but the philosophy was very much Bolitho in action.”[23] This statement almost implies that the Bolitho test was formulated from pre-existing notions rather than providing the ground-breaking decision it is credited for. Noting that Hucks v Cole contains elements of the Bolitho test years before the Bolitho events even came into existence suggests that control may have been in the hands of the courts long before they were willing, or perhaps ready, to admit it.

 All of these factors, and importantly Mulheron’s comment, point towards a change in the case law that was in motion long before Bolitho was heard. They also highlight the power the courts already had to ‘veto’ medical opinion if they found it unreasonable, yet another point Bolitho was famed for. If Bolitho’s most noteworthy point can be found in preceding case law, we can infer that its individual impact is not as great as some say.






Bolitho as itself has not brought about as significant a change as some people give it credit for. It is simply one in a number of cases which is part of a movement towards a more interventionist approach. The ideas stated in Bolitho were not new or revolutionary; what this case has done instead is compile these ideas into one concise test. Everything that we attribute to Bolitho has its inception in other cases, most notably in Bolam. The courts have always had the ability to overturn medical opinion, but perhaps it took longer to accept this role as the final arbiter against a strong background of paternalism and deference. In the end we can thank Bolitho for making lawyer’s lives easier by conveniently assembling the test for the standard of care, but it cannot be praised for being the definitive case in the field.





[1] Bolitho v City and Hackney Health Authority [1998] AC 232

[2] Hunter v Hanley 1955 SC 200

[3] 1955 SC 200 p.206

[4] Bolam v Friern Hospital Management Committee 1957 1 WLR 582

[5] Ibid p.587

[6] Ibid.

[7] Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 p.881

[8] 1998 AC 232 p.243

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

[10] [1998] AC 232 p.243

[11] J Herring, Medical Law and Ethics, 3rd edition (2010 Oxford) p. 108

[12] Marriott v West Midlands RHA [1998] WL 1042499

[13] [1998] WL 1042499 as per Lord Justice Beldam

[14] Wisniewski v Central Manchester Health Authority [1998] Lloyd’s Rep Med 223 p.237

[15] Joyce v Merton, Sutton and Wandsworth HA [1996] PIQR P121 p.140

[16] Lord Woolf, ‘Are the Courts Excessively Deferential to the Medical Profession?’ (2001) 9 (1) Medical Law Review 1 p.6

[17] [1957] 1 WLR 582  p.587-588

[18] Teff ‘The Standard of Care in Medical Negligence – moving on from Bolam?’ (1998) 18 Oxford Journal of Legal Studies 473  p.478

[19] [1990] 1 Med LR 117  p.125 per Stuart-Smith, LJ

[20] [1990] 3 All ER 237  p.244

[21] [1998] AC 232  p.241-242

[22] Hucks v Cole [1993] 4 Med LR 393 at p.397

[23] Mulheron, ‘Trumping Bolam’ at p.621

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