This article is based on one which first appeared in the Journal of Personal Injury Law – JPIL.


Dr Simon Fox QC is a medically qualified barrister at Serjeants’ Inn Chambers, London.


He is a specialist clinical negligence silk, assistant coroner and certified mediator.


He can be contacted at and on twitter @clinnegsilk.


In this article he reviews the Bolam test for breach of duty in clinical negligence in the light of recent case law and asks – is it still the test for breach ?




The Bolam test is the test for breach of duty on the part of doctors (and other professionals for that matter). According to the test, a doctor is not negligent if he/she acts in accordance with a practice accepted as proper by a reasonable and responsible body of doctors in that field.


Since I transferred from medicine to law 25 years ago, I have always thought that the Bolam test cannot logically apply to many scenarios of alleged clinical negligence. The scenario which has always struck me is the iatrogenic surgical bowel injury; a surgeon inadvertently and unknowingly perforates the bowel with a surgical instrument during a routine and otherwise uncomplicated laparoscopy. Can we logically apply Bolam as the test of negligence to that ?


I have never thought so.


After a long wait I find some judicial support for my concerns from Kerr J in Muller v Kings College 2017 EWHC 128 QB.


Before we go any further in a discussion about Bolam, it is important to be very clear exactly what we mean by the use of the term “the Bolam test”.


McNair J actually described a number of tests for a doctor’s negligence in Bolam v Friern Hospital Management Committee 1957 1 WLR 582.


The one which has become known as “the Bolam test” is this one –


“He 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”


– ie a body of doctors test.


However, McNair J also approved the Scottish case of Hunter v Hanley 1955 SLT 213 which described the test as – “such failure as no ordinary doctor of skill would be guilty of, if acting with ordinary care”


– ie a skill and care test.


The body of doctors Bolam test was subsequently lifted and adopted by the Court of Appeal and High Court in cases like Maynard v West Midlands RHA 1984 1 WLR 634 and Sidaway v Bethlem and Maudsley Hospitals 1985 AC 871 to become “the Bolam test”. In my experience it is routinely applied to all types of a clinical scenario.


It is interesting to note that the Bolam test originated in a Judge’s summing up of the law to a jury in a clinical negligence trial heard and decided by such a jury (as was then normal) in 1957. It was not the ratio of the case and was not part of a judgment in the modern sense – where a judge is giving a reasoned explanation to the parties of what the judge considers to be the test for breach and why.


The case of Bolitho v City and Hackney HA 1999 4 Med LR 381 added to the body of doctors test the requirement for that body to be reasonable, responsible and for their position to withstand a logical analysis of risks and benefits. This in effect means that a claim must fail unless the defence expert can be shown to fail this requirement and therefore fall into the so-called “Bolitho Exception” – a tough job for most claimants at trial.


The recent case of Muller concerned an allegation of negligence in interpretation of histology slide which was reported as normal when it in fact contained malignant melanoma. The parties disagreed over whether the Bolam test applied to breach. Kerr J adopted the test used in the earlier Court of Appeal cervical smear histology case of Penney v East Kent 2000 Lloyd’s Rep Med 41 –


  1. What as a matter of fact is present on the slide ?


  1. In missing it, did the doctor exercise reasonable skill and care ?


Ie a skill and care test, not the Bolam test.


There is further support for Kerr J for his approach in that the same test was used in the two negligent interpretation of fetal ultrasound cases of XXX v Kings 2018 EWHC 646 QB and the earlier Court of Appeal case of Lillywhite v UCL 2005 EWCA Civ 1466.


Two things are of note about this test.


Firstly – it does in fact reflect the Hunter v Hanley skill and care test, the other test referred to by McNair J in Bolam – so it can at least be described as a test which is consistent with, or derives from, the Bolam decision.


This was expressly referred to in the cases of both Penney and Lillywhite and the House of Lords in Maynard v West Midlands Regional Health Authority 1984 1 WLR 634 described the Hunter v Hanley skill and care test quoted in Bolam as one that could not be bettered as the test for clinical negligence.


Secondly it is a less onerous test for a Claimant because, from the judgments, there does not appear to be the same requirement to prove that the defence expert falls into the Bolitho Exception of being unreasonable, irresponsible or failing to withstand a logical analysis of risks and benefits. It does not play such a central role. It is either considered rather reluctantly at the end of the process, or not at all.


This might be because, logically, use of the Bolitho Exception only makes sense if you are applying it to a body of doctors test, which they were not.


Kerr J was obviously concerned about the latter because he adopted a belt and braces approach of finding that the defence expert did fall into the Bolitho Exception by adopting too low a standard – just in case.


A similar approach was taken by the first instance Judge in Penney and, although not the subject of the appeal, the Court of Appeal didn’t disagree with it.


The judgments in XXX and also FB (see below) do not refer to Bolitho at all.


Kerr J contrasted interpretation cases such as the one he was trying, which he called “pure diagnosis” cases, with ”pure treatment” cases where the Bolam test does logically apply. He gave as an example the case of C v North Cumbria 2014 EWHC 61 QB.


There the allegation was of negligence in managing an induction of labour in a specific manner (timings and dosage of Prostin). In such a case there is a choice of approach by the doctors and it is absolutely logical to assess negligence by reference to whether the approach adopted by the defendant would be accepted as proper by a reasonable and responsible body of obstetricians. The test is suited to the circumstances.


So there will still be cases where Bolam does apply.


In my view the key feature for a scenario where the Bolam test does still correctly apply is one where the clinician is selecting one form of management from a number of different options – where there is a choice. It seems to me that this could apply to management in choosing how to investigate (and diagnose) as well as how to treat, so that Bolam can apply to some diagnosis as well as treatment cases.


I should add that, in C v North Cumbria at paras 20-25, Green J gives a fantastic guide (often quoted in subsequent judgments) on how to address the Bolam test and in particular whether the defence expert evidence falls into the Bolitho Exception when you do still have a Bolam case.


In my view, if the reasonable skill and care test applies to interpretation of histology and ultrasound, then logically it must also apply to interpretation of all radiology and other test interpretation such as ECG and, crucially, CTG for that matter.


So 60 years after the Bolam test was first described, there is now authority to suggest that it does not apply to interpretation cases. Where else might it not apply ?


Well this is of course consistent with the decision in Montgomery v Lanarkshire 2015 UKSC 11 which made it clear that, while the Bolam test had been applied to consent for 60 years too, it was expressly described by the Supreme Court as not appropriate for consent.


They replaced it with what was helpfully set out by the subsequent Court of Appeal decision of Duce v Worcestershire NHS Trust 2018 EWCA Civ 1307 as a two stage test –


  1. What risks associated with an operation were or should have been known to the medical profession – a matter falling within expertise of medical professionals.


  1. Whether the patient should have been told about such risks – were they material – not a matter to be determined by expert evidence alone.


Montgomery concerned an allegation of negligence in obtaining consent for an approach to management of pregnancy in an antenatal clinic (advising of the risk of shoulder dystocia and the option of elective Caesarean), not for surgery, as did the later case of Webster v Burton Hospitals 2017 EWCA Civ 62. So it is important to remember to apply Montgomery in similar “advice” type cases as well as surgical cases.


There is a good argument that the test to apply in an iatrogenic surgical injury case is that described by the House of Lords in Whitehouse v Jordan 1981 WLR 246 (involving an allegation of negligence in forceps delivery) – is the error one that would have been made by a reasonably competent surgeon with that skill, acting with ordinary care ? (per Lord Fraser, in distinguishing negligent from non-negligent errors of judgment).


Ie – a skill and care test.


There is the further case of Darnley v Croydon Health Services NHS Trust 2018 UKSC 50. In holding that the hospital did owe a duty of care on the part of its receptionists (and medical staff) not to provide misinformation to patients and was in breach, the Supreme Court described the duty simply as one to to take reasonable care. There was no reference to the Bolam test or associated analysis of how the defence expert evidence fell into the Bolitho Exception.


More recently Jackson LJ in the Court of Appeal case of FB v Princess Alexandra Hospital NHS Trust 2017 Med LR 279, in assessing the standard of history taking in the Emergency Department, referred to Bolam and described the test as – “the defendant is required to exercise the skill and care of a reasonably competent member of his/her profession”.

The recent case of Flanaghan v University Hospitals Plymouth NHS Trust 2019 EWHC 1898 QB demonstrates the continued use of Bolam.

This was a spinal case heard by His Honour Judge McKenna at the RCJ. In 2008 the 59 year old claimant presented with some limited left sided spasticity due to degenerative changes in her cervical spine causing some cord distortion. She was seen by a consultant surgeon in the neurosurgical clinic who advised conservative management, no surgical intervention and she was discharged from further review. She was advised of the need to be re-referred if she developed further problems and was warned of the danger of future paralysis from a fall or accident.

In 2012 she tripped on a pot hole and this resulted in cervical cord compression such that she lost power in her right leg and had reduced power in her hands. A cervical discectomy and fusion was performed. However she suffered a further spinal injury during the course of the procedure.

In broad terms she alleged negligence –

2008 out-patient clinic – failure to recommend immediate surgery or review every 2 years.

2012 in-patient treatment – various failures in the choice of surgical approach and also to appreciate a CSF leak.

The Judge applied the Bolam test to all the allegations. Accordingly the Claimant could only win if she persuaded the Judge not just to prefer her expert (which he did not), but in addition to find that the Defence expert fell into the Bolitho Exception of not being reasonable, responsible or logical. The Judge did not prefer the Claimant’s expert, let alone find that the Defendant’s expert fell into the Bolitho Exception and dismissed the claim.

It seems to me that there is now the potential for the Montgomery test to apply to an alleged failure in an out-patient clinic (or on the ward for that matter) to advise of the options and alternatives to conservative management. If that is right then there is the potential to apply Montgomery to a far greater range of cases as consent cases, but which currently Bolam continues to be applied.

I set out a summary of my view of the different clinical scenarios and tests supported by the above cases –


  • Advice and consent on treatment options – Montgomery


  • Misinformation – reasonable care (Darnley)


  • Interpretation of investigations like histology, radiology (and ECG, CTG) – reasonable skill and care (Muller)


  • Selection of management where there is a choice – whether management means investigation, diagnosis or more commonly treatment – Bolam (C v North Cumbria)


  • Consent to surgery – Montgomery


  • Surgical injury – reasonable skill and care (Whitehouse).


The above inevitably simplifies a more complicated picture, but does suggest that there are alternatives to the Bolam body of doctors test in some circumstances.


Finally, there has been some passing suggestion (for example Yip J in Kennedy v Frankel 2019 EWHC 106 QB) that the Bolam test is still relevant to the first stage in the Duce test in applying the Montgomery test to consent.


This might arise from para 115 of Montgomery where Lady Hale states – “once the argument departs from purely medical considerations … the Bolam test becomes quite inapposite”- ie Bolam does not apply to the second stage. This might be used to infer that it does however still apply to the first stage in Duce/Montgomery.


Is that correct ?


It goes against the rest of the judgments – not just in the cases of Montgomery, Duce and Webster but other more recent cases like Ollosson v Dr Lee 2019 EWHC 784 QB – all of which describe Montgomery replacing Bolam without qualification. If Bolam did retain a specific role in the test for consent, you might expect these (often lengthy) judgments to say so.


I note Lauren Sutherland QC’s view that Bolam has no role in the new test for consent in her excellent article on Montgomery in the previous edition of JPIL.


If the Bolam test is still relevant to consent (used as it is normally – to mean the body of doctors test), then Bolitho is still relevant and the judgments would contain an analysis of why the defence expert did or did not fail that test and fall into the Bolitho Exception. None of them do.


Is it logically appropriate to apply the Bolam test to Duce stage 1 in considering an alleged failure by a clinician to know of risks associated with a procedure ? Would being ignorant of such a risk be a practice accepted as proper by a reasonable and responsible body of doctors ? It seems illogical to ask the experts to address the test in that way as no body of doctors would describe being ignorant as being an acceptable practice but that doesn’t mean it’s negligent.


The test seems logically better described as whether, in being ignorant of the risk, they were still exercising reasonable skill and care – in keeping up to date by attending meetings and reading journals for example. Ie the same reasonable skill and care test as that in Muller, Penney, XXX and Lillywhite – and also referred to in Bolam itself.


The Bolam test, as detailed by the House of Lords in Bolitho, is all about logic. There is a wonderful irony in trying to use it illogically in circumstances to which it is fundamentally not suited.



Dr Simon Fox QC


September 2019

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