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By Nevers Maambo
Introduction
The law of negligence seeks to strike a careful balance between the right of patients to receive competent medical care and the need to preserve professional discretion for medical practitioners. In the medical context, this balance has traditionally been governed by the Bolam test, a principle derived from Bolam v Friern Hospital Management Committee. As articulated by McNair J, a doctor is not negligent if they act in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in that particular field, even if other practitioners would have adopted a different approach.
This article examines the origins, principles, criticisms, and current relevance of the Bolam test, particularly in light of its refinement in Bolitho v City and Hackney Health Authority [1997], and its application in Zambian jurisprudence.
Origins and Principle of the Bolam Test
The facts in Bolam v Friern Hospital Management Committee concerned Mr John Bolam, who suffered from severe depression and consented to undergo electroconvulsive therapy (ECT). During the procedure, he was neither physically restrained nor administered muscle relaxants, nor was he warned of the risk of fractures. Consequently, Mr Bolam sustained serious injuries and brought an action against the hospital alleging medical negligence.
McNair J held that the appropriate test for determining liability in medical negligence was whether the defendant had acted in accordance with a practice accepted as proper by a responsible body of competent medical opinion. His Lordship articulated the test as follows:
“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.”
Applying this standard, the court found that the consultant’s conduct conformed to accepted medical practice at the material time and that the hospital was therefore not negligent.
The principle emerging from Bolam is one of judicial deference to professional expertise. The standard of care is determined by reference to prevailing professional opinion within the relevant medical discipline, rather than by the views of laypersons or the judiciary. Accordingly, a medical practitioner will not be found negligent where they have acted in accordance with a responsible body of professional opinion, even if other competent practitioners might have adopted a different approach.
Application of the Bolam Test in Zambian Jurisprudence
The Bolam test has also influenced medical negligence cases beyond the UK. In Zambia, it was applied in Kopa v University Teaching Hospital Board of Management [2007]. In this case, an eight-year-old child swallowed a Coca-Cola bottle cap. Medical procedures undertaken to remove the object resulted in severe bleeding and the child’s eventual death. The plaintiff alleged medical negligence.
The court ruled in favour of the defendant, holding that the medical practitioners followed standard and accepted medical procedures. Applying the Bolam test, the court concluded that the doctors were not negligent as their actions conformed to responsible medical opinion at the time. This case illustrates the continued relevance and authority of Bolam in determining medical negligence in Zambian courts.
Introducing Logical Scrutiny: The Bolitho Modification
While the Bolam test offers protection to medical professionals, it was criticised for granting excessive deference to professional opinion. This concern was addressed in Bolitho v City and Hackney Health Authority [1997].
In Bolitho, the House of Lords held that although courts should ordinarily accept expert medical opinion, such opinion must be capable of withstanding logical analysis. Lord Browne-Wilkinson stated that a court is entitled to reject a body of professional opinion if it is not reasonable or responsible.
This refinement introduced an important qualification: professional opinion must be rational, evidence-based, and coherent. The Bolitho modification prevents professionals from avoiding liability merely because a group of experts supports their conduct. Courts now have a supervisory role to ensure that professional standards themselves are reasonable.
Critical Evaluation of the Bolam Test
Despite its long-standing influence, the Bolam test has been widely criticised. One major criticism is that it is overly protective of professionals and unfair to claimants. By allowing professionals to define their own standards of care, the test risks excluding meaningful judicial oversight.
Critics argue that Bolam is a descriptive rather than normative test: it focuses on what is commonly done, not on what ought to be done. This can perpetuate outdated or marginally acceptable practices. In Bolam itself, the treatment administered was already known to carry significant risks, yet it was deemed acceptable due to prevailing medical opinion.
Additionally, the notion of a “responsible body of opinion” is vague and undefined. There is no clear guidance on how large or representative such a body must be, raising concerns about inconsistency and professional bias. This criticism echoes Lord Denning’s warning in Hatcher v Black [1954], where he cautioned against placing “a dagger at the doctor’s back” by allowing excessive litigation, while simultaneously acknowledging the need for accountability.
Conclusion
The Bolam test remains a cornerstone of medical negligence law, providing a framework that respects professional expertise while shielding practitioners from unfair liability. Its application in cases such as Kopa v University Teaching Hospital demonstrates its enduring relevance in both common law and Zambian jurisprudence.
However, the refinement introduced by Bolitho represents a crucial evolution. By subjecting professional opinion to logical scrutiny, the law now strikes a more appropriate balance between professional autonomy and patient protection. While Bolam ensures that courts do not substitute their judgment for that of medical experts, Bolitho ensures that those experts remain accountable to standards of reason, logic, and evidence. Together, they form a more nuanced and just approach to medical negligence.
Bibliography
Cases
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (QB).
Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 (HL).
Hatcher v Black [1954] 1 WLR 548 (CA).
Kopa v University Teaching Hospital Board of Management (2007) ZMSC 8 ZR .
Books
Harpwood V, principles of torts (4th edn, Cavendish publishing limited, 2000).
Other Sources
Kennedy I, ‘Medical Negligence and the Bolam Test’ (1981) 97 Law Quarterly Review 563.
ABOUT THE AUTHOR
Nevers Maambo is a second-year student at the University of Zambia in the School of Law. He writes this in his personal capacity.
DISCLAIMER
The views expressed in this article are solely mine and do not represent any organisation with which I am affiliated.
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