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Courts too deferential to doctors, says judge

BMJ 2001; 322 doi: https://doi.org/10.1136/bmj.322.7279.129 (Published 20 January 2001) Cite this as: BMJ 2001;322:129
  1. Clare Dyer, legal correspondent
  1. BMJ

    The English courts were “excessively deferential” to doctors in the past in their reluctance to find them guilty of negligence, England's top judge said this week. Lord Woolf, the Lord Chief Justice, said that judges were now less willing to allow the medical profession to determine what amounted to negligent practice.

    The change happened after it became clear to the courts that the hospitals and the medical professions could not be relied on to resolve justified complaints justly, he added.

    Medical negligence litigation was “a disaster area,” in which the courts grew increasingly conscious of the difficulties that bona fide claimants faced in succeeding.

    Giving the inaugural provost's lecture at University College London, Lord Woolf outlined how the courts in recent years had refined the so called Bolam test for medical negligence. Under that test, a doctor would not be found negligent if his or her practice was accepted as proper by a responsible body of medical opinion.

    In the Bolitho case in 1998, the House of Lords signalled a greater willingness to evaluate professional medical practice than it had shown in the past. It was no longer enough for a doctor to produce evidence that a particular practice was accepted within the profession. Medical opinion now had to withstand logical analysis.

    The moral of his lecture, said Lord Woolf, was that it was “unwise to place any profession or other body providing services to the public on a pedestal where their actions cannot be subject to close scrutiny.” The problem with the Bolam test was that it inhibited the courts exercising a restraining influence.

    Several factors had played a part in ending the culture of deference, he said. The move to a rights based society had fundamentally changed the behaviour of the courts. The “automatic presumption of beneficence” that the courts accorded doctors had been dented by a series of well publicised scandals, of which the judges were not oblivious.

    The scale of litigation indicated that the health service was not giving enough priority to avoiding medical mishaps and to treating patients justly when mishaps occurred. “It was clear to the courts that the hospitals and the medical professions could not be relied on to resolve justified complaints justly,” he said

    Lord Woolf said the task of analysing the medical scandals, such as the Bristol children's heart surgery case, which had dented public confidence, was for others, and his views were no more authoritative than those of an interested onlooker. But, he said, “I cannot help believing that the behaviour of those involved in the scandals betrays a lack of appreciation of the limits of their responsibility.

    “They were not motivated by personal gain but they had lost sight of the limits of their powers and authority. They acted as though they were able to take any action they thought desirable irrespective of the views of others.”

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