This thesis will argue that it is crucial for the courts in clinical negligence claims to play a proactive role in ensuring effective standards in medicine and to provide adequate redress if these standards are not met. I will argue that the courts are, and always have been, the ultimate arbiters of the standard of care in clinical negligence and that it is only right and proper for this to be so. There was a considerable period when the English courts seemingly abdicated responsibility to the clinicians, and failed in carrying out even the most rudimentary checks as to the credibility of expert witnesses. Many commentators blamed the direction to the jury given by McNair J in Bolam. Yet Bolam of itself did not offer any sort of privilege to doctors. Other powerful factors were acting on the judiciary of this period, skewing the way in which the courts set the standard of legally acceptable medical care. The fear of defensive medicine, the special status ascribed to clinical knowledge and the presumed particularly altruistic nature of its proponents. That the courts now have the authority to set the appropriate standard of care in clinical negligence is not a particularly contentious claim. But the Bolitho decision, in and of itself, will not be sufficient impetus to ensure that such unjustified weight is not accorded to the profession's own views again. Bolitho does no more than restore the true meaning of Bolam.There have also in the past decade been changes to clinical professional practice largely led by the medical profession themselves. An increase in evidence based medicine including the usage of clinical guidelines provides a framework for a more assertive judiciary less likely to fall back into deference. In order to provide comprehensive and effective redress within the modern NHS the existence and extent of various institutional primary direct duties of care must be determined. In the increasingly complex healthcare system both commissioners and providers of healthcare must owe a duty to ensure care is taken. The courts must not compromise from an irreducible standard of reasonable care, despite the resource issues facing institutions. A distorted interpretation of Bolam must not be permitted to be revived when the institutional duty is invoked.
|Date of Award||31 Dec 2012|
- The University of Manchester
|Supervisor||Margaret Brazier (Supervisor) & Kirsty Keywood (Supervisor)|