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13 recordsLinked to original sources
PubMed1995

Patients' rights--why the Australian courts have rejected 'Bolam'.

This point of view compares the issue of informed patient consent primarily as it operates in Australia and the United Kingdom. It affords an overview, also, of the applicable law in the United States and Canada. It particularly focuses on the legal test to be applied to patient consent as established in the Bolam case in the United Kingdom. The case, following its approval by the House of Lords, holds that the negligent standard in patient consent situations is to be determined, in cases of dispute, in accordance with standards as viewed by a proper body of competent medical practitioners. By contrast, the law in the United States is premised on the notion of the fundamental right of patients to determine what should or should not be done with their own bodies. In Australia the Bolam test has been rejected by the High Court of Australia following earlier decisions in the State Supreme Courts. The Australian courts did not accept that the setting of standards by the medical profession was an acceptable way of determining the entitlements of a patient who has suffered harm. The author places this discussion in the context of greater community awareness of medical procedures, the heightened accountability of professionals and the increasing practice of having a substantial patient input into medical decisions. He also suggests that the differing social and professional attitudes to authority and fundamental rights to be found between Australia and the United Kingdom have influenced the outcome of the cases in the higher courts of both countries. He suggests that the Bolam test is an illustration of the tendency of authority in the United Kingdom to believe that 'Nanny know best'.

Australia↗
PubMed1997

The medical student and the suicidal patient.

Today's medical students are being confronted with ethical situations of far greater complexity than were their predecessors and yet the medical education system does little to prepare students for the ethical dilemmas which they inevitably face when entering the hospital environment. The following article addresses the issues surrounding a case where a patient has told a student in confidence of his plans to commit suicide. What should the student do? The only way for the student to prevent death is by breaking confidentiality because the student has insufficient clinical experience to provide adequate guidance. However, this requires ignoring the patient's right to autonomy, a right enshrined in both case law and medical ethics. Clearly the student's ethical, moral and legal position must be carefully evaluated.

Confidentiality↗
PubMed2005

Giving the reasonable patient a voice: information disclosure and the relevance of empirical evidence.

In England the standard of risk disclosure required of doctors to avoid liability in negligence is governed by the Bolam test. The test is determined by what would be accepted as reasonable by the responsible doctor. Although able to lay down an independent standard, the courts have usually been guided by the medical expert's evidence. The judge's duty to scrutinise expert evidence was reaffirmed by the recent House of Lords ruling in Bolitho v City and Hackney HA. In Pearce v United Bristol Healthcare NHS Trust, Lord Woolf MR confirmed that this also applied to risk disclosure. Brazier & Miola argue that Pearce effectively introduces the prudent patient standard into English law. This paper examines that claim and considers whether it is justified by the Pearce judgment. The implications of Pearce are explored and, given the appeal to the concept of a material risk, I discuss the relevance of empirical research to determining the standard of disclosure. Finally, a small piece of empirical work is presented as an illustration of the pros and cons of such an approach and as a possible springboard for future research.

Anesthesia, General↗
PubMed1993

Medical models and legal categories: an English perspective.

Medical paternalism has been criticised for its denial of patients' rights. Though defended on grounds of patient welfare, it can also be detrimental to that interest. English law has predominantly endorsed medical paternalism, and the criticism of this stance has centered on patients' rights. But within established legal categories there is very little scope for analysis based on the rights of patients, the assertion of which may, in any event, not be conducive to the maximisation of their welfare. This article is primarily concerned with cases arising from the hospital setting, the source of most medical litigation. Its purpose is to argue that an approach grounded in the doctor's responsibility for the patient's welfare, but which affords due respect for patients' rights, accords with legal principle.

Contracts↗
PubMedDate not supplied

Withdrawing treatment from patients in a persistent vegetative state.

Medical opinion was unanimous that English youth Anthony Bland was in a persistent vegetative state with no hope of improvement or recovery. His family agreed that withdrawal of life support was appropriate, but Anthony's case went to the House of Lords for clarification of the legal position before any action was taken by his doctors. The court applied the Bolam test--that a regimen is legally acceptable if supported by a body of competent medical opinion, a principle specifically rejected by the High Court of Australia in Rogers v. Whitaker.

Adolescent↗
PubMed1997

Informed consent--should Bolam be rejected?

Informed consent requires the person to correctly understand the nature of what is offered and to be free to choose without coercion. Where there are impediments to such decision-making, then appropriate guardians or mental health laws have been provided to enhance protection. Where consent was not fully informed, an injured patient may resort to the tort of battery or negligence for remedy unless the intrusion was as a consequence of emergency treatment to an unconscious patient in the absence of next of kin. This paper reviews the UK Bolam Principle where professional standards were set by peer standards of professional conduct and the US prudent person test in which needs of a prudent patient assume priority. It concludes that there is a need to balance both the rights of patients and obligation of doctors to ensure that justice prevails. It recognises that the final standard of duty of care remains under scrutiny, and that there was a ground swell against absolute adherence to the Bolam Principle, and a need to review the circumstances of each case.

Cross-Cultural Comparison↗
PubMed1998

Hobson's choice: reproductive choices for women with learning disabilities.

This paper examines the present law in England and Wales concerning the sterilisation of women who are unable to give valid consent to medical treatment. In particular, it considers why sterilisation is frequently presented as the only meaningful reproductive choice that can be made by or on behalf of women with learning disabilities. In addition, the paper assesses the extent to which the best interests test, as formulated by the English courts, has been successful in the promotion of dignity and autonomy of women with learning disabilities. It is submitted that some of the issues presented to the courts have not received adequate consideration and others have been considered which are not relevant to the determination of the best interests of these patients. Furthermore, the best interests of the adult patient are determined by reference to the 'Bolam' test. This paper questions whether the Bolam test is the appropriate mechanism for determining the patient's best interests, having particular regard to the Australian model of decision-making for the intellectually impaired.

Adolescent↗