Introduction
The standard of care is a foundational element in the tort of negligence, defining the benchmark against which a defendant's conduct is measured. In the context of clinical negligence, establishing this standard is particularly complex, given the specialised knowledge and skill involved in medical practice. For many years, the standard was determined by the medical profession itself, through the principle established in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. This test dictated that a doctor would not be found negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion. This essay will argue that while the Bolam test remains applicable to certain aspects of clinical negligence, namely diagnosis and treatment, its dominance has been significantly curtailed by judicial developments. The introduction of the 'logical basis' test in Bolitho v City and Hackney Health Authority [1998] AC 232, and more profoundly, the paradigm shift towards patient autonomy in Montgomery v Lanarkshire Health Board [2015] UKSC 11, have reshaped the law to offer greater patient protection. Therefore, to claim that the Bolam test is wholly failing to protect patients is an overstatement in the modern legal landscape, as its most criticised applications have been largely superseded. However, its continued relevance in some areas ensures the debate over judicial deference to medical expertise persists.
The Establishment and Dominance of the Bolam Test
The law on clinical negligence was fundamentally shaped by the judgment of McNair J in Bolam. The claimant was undergoing electro-convulsive therapy and suffered serious fractures. He argued the hospital was negligent for not administering a relaxant drug and for not using restraints. Evidence showed that medical opinion was divided on the use of both. In his direction to the jury, McNair J articulated what became known as the Bolam test: "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… Putting it the other way round, 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" (Bolam, p. 587).
This test established a standard of care that was profession-centric. It deferred to the judgment of medical experts, effectively allowing the medical profession to set its own standards of liability. The courts adopted a position of restraint, unwilling to step into areas of clinical judgment where they lacked expertise. This approach was reinforced in subsequent House of Lords decisions. In Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, Lord Scarman confirmed that a judge's preference for one body of professional opinion over another was not a sufficient basis for a finding of negligence. The court’s role was not to resolve scientific disputes but to determine whether the defendant’s practice was supported by a responsible body of opinion.
The rationale for this deference is understandable; judges are not medically trained and assessing the complex, high-stakes decisions made by doctors is fraught with difficulty. The test was intended to prevent the courts from using the benefit of hindsight to unfairly condemn doctors for errors of judgment, as distinguished from actual negligence (Whitehouse v Jordan [1981] 1 WLR 246). However, this approach attracted significant criticism. It was seen as excessively paternalistic and prioritised medical opinion over the safety and autonomy of the patient (Jones, 2017). A key concern was that the test could immunise doctors from liability as long as they could find some expert willing to support their actions, regardless of whether the practice was objectively safe or reasonable. This led to accusations that the law was failing to adequately protect patients from substandard medical care.
Judicial Scrutiny and the Bolitho Gloss
The high-water mark of judicial deference began to recede with the House of Lords' decision in Bolitho v City and Hackney Health Authority [1998] AC 232. This case concerned a two-year-old child who suffered catastrophic brain damage following respiratory failure. A doctor was summoned but failed to attend. The critical legal question was whether the doctor’s non-attendance caused the injury. This depended on what the doctor would have done if she had attended. The doctor gave evidence that she would not have intubated the child, and this view was supported by a body of expert evidence. Under a strict Bolam analysis, this would have ended the claim.
However, Lord Browne-Wilkinson introduced a crucial qualification to the Bolam test. He stated that the body of expert opinion relied upon must be "responsible" and "reasonable," and capable of withstanding logical analysis. He clarified that in "a rare case," the court could conclude that an expert opinion "has no logical basis" (Bolitho, p. 243). If a professional opinion was not demonstrably reasonable, for example if the expert had failed to weigh the comparative risks and benefits of a course of action, the court would be entitled to reject it.
The Bolitho "gloss" was a significant development. It asserted the court's role as the ultimate arbiter of the standard of care. It was no longer sufficient for a doctor simply to show that their actions were supported by a group of their peers; that support now had to be founded on a logical and defensible basis. This marked a shift away from pure deference and towards greater judicial scrutiny, empowering courts to reject medical opinion that was illogical or irresponsible. While it did not dismantle Bolam, it addressed the key criticism that the test allowed any expert opinion, no matter how flawed, to defeat a negligence claim. This modification was a clear step towards enhancing patient protection by ensuring that the professional standard being applied was itself rational and reasonable.
The Retreat from Bolam: The Duty to Inform and Patient Autonomy
The most significant departure from the Bolam test has occurred in the context of a doctor's duty to advise a patient about risks. This area of law directly engages with the principle of patient autonomy—the right of an individual to make their own decisions about their body and medical treatment. For a long time, the courts applied the Bolam test to the disclosure of information, meaning the extent of the duty to warn was determined by what a responsible body of doctors would have disclosed in the circumstances (Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871). In Sidaway, the majority of the House of Lords rejected the "informed consent" doctrine prevalent in other jurisdictions, fearing it would lead to defensive medicine. However, Lord Scarman’s powerful dissent, arguing for a more patient-centric approach based on the "prudent patient," sowed the seeds for future change.
This change finally came in the landmark Supreme Court decision of Montgomery v Lanarkshire Health Board [2015] UKSC 11. The claimant was a diabetic woman of small stature who was not informed of the 9-10% risk of shoulder dystocia associated with a vaginal delivery for a large baby, nor was she advised of the alternative of a caesarean section. Her baby suffered severe disabilities as a result of shoulder dystocia during birth. The Supreme Court unanimously and decisively rejected the application of the Bolam test to the duty to inform.
Lords Kerr and Reed declared that the doctor’s duty is to "take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments" (Montgomery, para 87). A risk was defined as material if "a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it" (Montgomery, para 87).
This judgment represents a fundamental shift from a model of medical paternalism to one of shared decision-making. The standard is no longer set by the medical profession but by the needs and values of the individual patient. The question is not what a reasonable doctor would do, but what a reasonable patient would want to know. By removing the duty to advise from the scope of the Bolam test, the Supreme Court unequivocally prioritised patient autonomy and created a far stronger legal framework for protecting patients' right to make informed choices. As Miola (2015) notes, the decision in Montgomery brings the law into line with modern ethical standards and patient expectations.
The Modern Status of Bolam: A More Limited Application
Despite the revolutionary impact of Montgomery, it would be incorrect to state that the Bolam test is no longer applicable. The Supreme Court in Montgomery was careful to confine its ruling to the specific context of risk disclosure and consent. It explicitly stated that the Bolam test remains relevant for other aspects of medical practice. The judgment clarified that for decisions concerning diagnosis, the technical aspects of a procedure, or deciding between different available treatments, the standard of care is ordinarily still governed by the Bolam principle, as refined by Bolitho.
This creates a division in the law of clinical negligence. As the court in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 confirmed, the duty to inform under Montgomery is distinct from the assessment of whether a particular risk was known or should have been known, which remains a matter of expert evidence judged by the Bolam standard. For instance, determining whether a doctor was negligent in failing to diagnose a rare condition would be assessed by asking whether a responsible body of medical opinion would have made the same diagnostic error. Similarly, whether a surgeon used the correct technique during an operation is a question of professional skill and judgment to which Bolam applies.
Therefore, the Bolam test has not been abolished, but its jurisdiction has been significantly narrowed. It now primarily governs the "pure" clinical judgment aspects of medicine, where the issue is one of technical skill or diagnostic acumen rather than patient communication. In this limited sphere, the test, especially when combined with the Bolitho safeguard against illogical opinions, can be defended as a necessary mechanism to prevent courts from making uninformed judgments on complex clinical matters. It acknowledges that in many areas of medicine, there may be more than one acceptable course of action. However, its survival means that in these areas, the standard of care is still primarily set by the profession, and the potential for it to be seen as failing patients, albeit a diminished one, remains.
Conclusion
In conclusion, the Bolam test is no longer the overarching principle governing all aspects of clinical negligence that it once was. Its status has been fundamentally altered by decades of judicial evolution aimed at strengthening patient rights. The assertion that it is "failing to protect patients" is largely a historical critique that has been substantially addressed by legal developments.
The Bolitho gloss was the first major step, ensuring that the professional opinion relied upon is logical and defensible, thereby handing ultimate authority back to the courts. The most profound change, however, was in Montgomery, which removed the entire sphere of risk disclosure and consent from Bolam's purview and established a patient-centric standard of care. This decision has done more than any other to empower patients and protect their right to autonomy.
The Bolam test is, however, still applicable. It continues to govern the standard of care in matters of diagnosis and the performance of treatment, where the questions are of professional skill rather than patient choice. In this context, tempered by Bolitho, it arguably provides a pragmatic and necessary standard that prevents the judiciary from overreaching into areas of specialist expertise. The modern law thus strikes a balance: it defers to professional judgment where appropriate but robustly protects a patient's right to be the ultimate decision-maker in their own treatment. The Bolam test survives, but in a more confined and justifiable form, forming part of a more nuanced legal landscape that provides greater protection for patients than ever before.
References
Chan, S.W., Tulloch, E., Cooper, E.S., and St-Amant, O. (2017) 'Montgomery and informed consent: a case study from Scotland', Journal of Medical Ethics, 43(8), pp. 503-507.
Jones, M.A. (2017) 'The "Bolam" test and the responsible expert', Journal of Professional Negligence, 33(2), pp. 119-132.
Miola, J. (2015) 'Goodbye Bolam, hello Montgomery', Medical Law Review, 23(4), pp. 642-652.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
Bolitho v City and Hackney Health Authority [1998] AC 232.
Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307.
Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634.
Montgomery v Lanarkshire Health Board [2015] UKSC 11.
Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871.
Whitehouse v Jordan [1981] 1 WLR 246.
