Bolam v Friern Hospital Management Committee

JurisdictionEngland & Wales
Judgment Date1957
Date1957
Year1957
CourtQueen's Bench Division
[QUEEN'S BENCH DIVISION.] BOLAM v. FRIERN HOSPITAL MANAGEMENT COMMITTEE. [1956 B. No. 507.] 1957 Feb. 20, 21, 22, 25, 26. McNair J. and a jury.

Negligence - Hospital - Operation - Electro-convulsive therapy - Patient injured during course of treatment - Varying methods of administering treatment - Method adopted in accordance with one body of medical opinion - Liability of hospital.

During the course of electro-convulsive therapy [E.C.T.] treatment administered to him at the defendants' mental hospital, the plaintiff, a voluntary patient, sustained bilateral “stove-in” fractures of the acetabula. E.C.T. treatment consisted in the passing of an electric current through the brain of the patient which, when given unmodified, i.e., without the prior administration of a relaxant drug, resulted in violent muscular contractions and spasms, attended with a known, though slight, risk of bone fracture. In accordance with his normal practice the doctor treating the plaintiff had given the E.C.T. unmodified, and without applying any form of manual restraint other than to support the plaintiff's chin and hold his shoulders, nurses being present on either side of the couch in case the plaintiff fell off. The plaintiff claimed damages, alleging, inter alia, that the defendants were negligent (1) in failing to administer any relaxant drug prior to the passing of the current through his brain; (2) since they had not administered such drug, in failing to provide at least some form of manual restraint or control beyond that given; and (3) in failing to warn him of the risks involved in the treatment. Expert witnesses called by either side gave evidence as to the different techniques which they adopted in giving E.C.T. treatment; some used relaxant drugs, some restraining sheets, and some manual control, but all agreed that there was a firm body of medical opinion opposed to the use of relaxant drugs, and also that a number of competent practitioners considered that the less manual restraint there was, the less was the risk of fracture. It was the practice of the defendants' doctors not to warn their patients of the risks of the treatment (which they believed to be small) unless asked; if asked, they said that there was a very slight risk. The witness called for the plaintiff considered that it would not be right not to warn a patient of the risks of the treatment: —

Held, (1) that a doctor who had acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion skilled in the particular form of treatment in question was not guilty of negligence merely because there was a body of competent professional opinion which might adopt a different technique.

Dictum of Lord President Clyde in Hunter v. Hanley, 1955 S.L.T. 213, 217, applied.

(2) That in determining whether or not the plaintiff was entitled to succeed on his allegation of failure to warn, the material considerations were, first, whether or not the defendants, in not warning him of the risks involved in the treatment, had fallen below a standard of practice recognized as proper by a competent body of professional opinion and, if a good medical practice did require warning, then, secondly, would the plaintiff, if warned, have refused to undergo the treatment, and that it was for the plaintiff to show to the satisfaction of the court that, had he been warned he would not have taken the treatment.

JURY ACTION.

The plaintiff, John Hector Bolam, sued the defendants, the Friern Hospital Management Committee, claiming damages for negligence on the part of the defendants, their servants or agents, in electro-convulsive therapy [E.C.T.] treatment administered to him on August 23, 1954, when, during the treatment, he sustained fractures of the pelvis on each side caused by the head of the femur being driven through the acetabulum or cup of the pelvis.

The following facts appeared from the evidence. The plaintiff, having previously been a voluntary patient at the Friern Hospital, a mental hospital, was re-admitted as a voluntary patient on August 16, 1954, suffering from depression and on August 19 and 23 was treated for his condition by E.C.T. E.C.T. treatment is carried out by placing electrodes on each side of the head and allowing an electric current to pass through the brain. One of the results of passing the electric current through the brain is to precipitate violent convulsive movements in the form of a fit in the patient, and muscular contractions and spasms; if a relaxant drug is administered to the patient prior to the treatment, the muscular reactions can be reduced as to be barely discernible, but the plaintiff was given the treatment without any prior administration of such drug and it was during the convulsive muscular movements in the course of his treatment that he sustained his injuries. On August 23 the treatment was given to the plaintiff by one Dr. Allfrey, who, in accordance with his normal practice, and with that of his chief, one Dr. Bastarrechea, consultant psychiatrist attached to the defendant hospital, had given the treatment “unmodified,” i.e., without the prior administration of a relaxant drug, and without applying any form of manual restraint. The treatment was given to the plaintiff whilst he was lying on a couch, and the precautions were to support his chin, to hold his shoulders and to place a gag in his mouth, while nurses were present on either side of the couch to prevent him from falling off.

The plaintiff alleged, inter alia, that the defendants were negligent in that they had failed to administer to him before the current was passed through his brain a suitable relaxant and/or anaesthetic drug or drugs to prevent or control the violence of the convulsion; failed to supply sufficient nurses to control his convulsive movements whilst undergoing the fit; permitted the treatment to be given without either the previous administration of a relaxant drug or the provision of manual control of his convulsive movements; and failed to warn him of the risks which he was running when he consented to the treatment, in particular, failed to warn him that they proposed to carry out the treatment without relaxant drugs being previously administered and without manual control being available.

The defendants denied liability.

On behalf of the plaintiff evidence was given by an expert (Dr. Randall), a consultant psychiatrist, who was of the opinion that relaxant drugs and an anaesthetic should be used when E.C.T. treatment was given, as the drugs prevented reaction of the muscles to the electric shock and so eliminated the risk of fracture; he said that up to 1953 he had only used relaxant drugs in selected cases but that since then he had used them in all cases. He admitted, however, that although he was in favour of the use of relaxant drugs, there was a large body of competent persons, whose opinion he respected who took a contrary view, and that he could not say that a practitioner using E.C.T. in 1954 who did not use relaxants was falling below the standard of care required of a competent medical practitioner merely by failure to use relaxant drugs. His personal opinion, which he said was shared by others was that, if relaxants were not used, some form of manual control or restraint was necessary; he said that if a relaxant was not given it was in his view foolhardy to give E.C.T. treatment without using some form of restraint, but agreed that there was a school of thought which took a different view and that it was the view of some competent doctors whose opinion he respected that the more restraint there was, the more likelihood here was of fracture.

On behalf of the defendants evidence was given by Dr. Bastarrechea to the effect that he was normally opposed to the use of relaxant drugs as he considered that there was, with their use, a risk of mortality while he considered that the risk of fracture with unmodified E.T.C. to be minimal; he said that, as a matter of clinical judgment he balanced the risk of death with the use of relaxants against the risk of fracture and decided that it was better not to use relaxants except in special circumstances, and that he only gave relaxant drugs in selected cases where the risk of unmodified E.C.T. would be greater than usual, and that there was no special reason why the plaintiff should have been given a relaxant drug. Other witnesses gave evidence as to the different techniques which they adopted in giving E.C.T.; some used restraining sheets, some relaxant drugs, some manual restraint, but all agreed that there was a firm body of opinion which was opposed to the use of relaxant drugs as a matter of routine. The defendants' evidence was that they used to provide manual control but had not done so since 1951, as it was their view, borne out by their experience, that the less restraint there was, the less the risk of fractures.

On the question of warning, the plaintiff's witness thought that it would not be right not to warn a patient of the risk of fracture while the defendants took the view that it was not desirable to warn patients of the risk unless they asked about it.

It also appeared from the evidence that the nature of the plaintiff's injury was exceptional.

N. R. Fox-Andrews...

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