Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (ICLR)

Mr Bolam, a voluntary psychiatric patient, suffered rare pelvic fractures during unmodified electro-convulsive therapy. He alleged negligence for not using relaxant drugs, restraints, or giving warning. The court held doctors are not negligent if acting in accordance with a responsible body of medical opinion.

Facts

The plaintiff, John Hector Bolam, was a voluntary patient at the defendants’ mental hospital, Friern Hospital. He was re-admitted on 16 August 1954 suffering from depression and was treated with electro-convulsive therapy (E.C.T.) on 19 and 23 August.

E.C.T. involved passing an electric current through the brain, producing a convulsion with violent muscular contractions and spasms. When given “unmodified” (without prior relaxant drugs), the treatment carried a known, though slight, risk of bone fracture. If a relaxant drug was administered beforehand, muscular reactions were reduced to be barely discernible and the risk of fracture was effectively eliminated.

On 23 August the treatment was administered by Dr Allfrey, who, in accordance with his normal practice and that of his chief, consultant psychiatrist Dr Bastarrechea, gave E.C.T. unmodified and without applying any form of manual restraint beyond supporting the plaintiff’s chin, holding his shoulders and placing a gag in his mouth. Nurses stood on either side of the couch to prevent him falling off. During the convulsive movements the plaintiff sustained bilateral “stove-in” fractures of the acetabula, an extremely rare injury in this context.

The plaintiff alleged that the defendants were negligent by: (1) failing to administer suitable relaxant and/or anaesthetic drugs before the current was passed; (2) failing to provide sufficient nurses or adequate manual restraint or control; (3) permitting unmodified E.C.T. without either relaxants or proper manual control; and (4) failing to warn him of the risks of the treatment, including that it would be performed without relaxant drugs or manual control.

Expert evidence showed a diversity of techniques among competent psychiatrists. Some routinely used relaxant drugs, some used restraining sheets or manual control, and some used neither. All agreed that there was a firm body of medical opinion opposed to the routine use of relaxant drugs, and that a number of competent practitioners believed that the less manual restraint used, the lower the risk of fracture. It was also common ground that the sort of fractures suffered by the plaintiff were exceptional.

As to warnings, the defendants’ practice was not to mention the risks of fracture unless the patient asked; if asked, they described the risk as very slight. The plaintiff’s expert, Dr Randall, considered that patients who could understand should be warned of the risks.

Issues

The central questions were:

• Whether the defendants were negligent in failing to use relaxant drugs before administering E.C.T.
• Whether, if relaxant drugs were not used, they were negligent in failing to provide additional manual restraint beyond supporting the shoulders and chin, and positioning nurses by the couch.
• Whether they were negligent in failing to warn the plaintiff of the risks associated with the treatment.
• More broadly, what standard of care is required of a doctor in diagnosis and treatment, particularly where there are differing schools of competent professional opinion.

Judgment

General approach to medical negligence

McNair J directed the jury that negligence must be assessed by reference to the standard of the reasonable and ordinarily competent practitioner exercising the relevant special skill, rather than the “man on the Clapham omnibus”. He accepted that there may be more than one proper practice within the profession.

He referred with approval to Lord President Clyde’s dictum in Hunter v. Hanley and reformulated the legal test:

I myself would prefer to put it this way, that 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.

He emphasised that a doctor is not negligent merely because another body of competent opinion would have adopted a different technique:

Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.

However, he warned that a doctor could not “obstinately and pig-headedly” persist with an outdated technique once it had been shown to be contrary to what was substantially the whole of informed medical opinion.

The court stressed the need to judge conduct by standards and knowledge existing at the time of the events (August 1954), not with hindsight in 1957.

Use of relaxant drugs

The plaintiff argued that since relaxants virtually eliminated the risk of fracture, failure to use them must be negligent. The defendants contended that clinical judgment required balancing the minimal fracture risk of unmodified E.C.T. against the separate mortality risk associated with relaxants and anaesthesia, and that they therefore reserved relaxants for special cases (for example, where a patient had a recent fracture or particular vulnerabilities).

Evidence showed a substantial body of respected psychiatrists opposed to the routine use of relaxant drugs. Even the plaintiff’s expert, Dr Randall, accepted that a practitioner in 1954 who did not use relaxants was not thereby falling below the standard of care required of a competent medical practitioner.

McNair J told the jury that, on that body of evidence, they had to decide whether mere failure to give relaxants could amount to negligence, given the firmly established school of professional opinion against their routine use.

Failure to use manual restraint

The plaintiff contended that, if relaxants were not used, some form of manual control or restraint beyond shoulder support was necessary, and that failure to do so was negligent. Dr Randall described giving unmodified E.C.T. without restraint as “foolhardy”, while acknowledging that there was a school of thought among competent doctors who did not use restraint and who would nevertheless give E.C.T. without it.

The defendants’ witnesses testified that they had previously used manual control but had abandoned it since 1951, believing from experience that increased restraint raised the risk of fractures. Their method was to leave limbs free, support the shoulders and chin, and position nurses by the couch.

McNair J directed the jury that they must decide whether, in adopting this technique, Dr Allfrey was doing something which no competent medical practitioner using due care would do, or whether he was acting in accordance with a well-recognised school of thought. They were reminded that several other hospitals and practitioners followed similar practices, although others adopted different variants.

Failure to warn

On the allegation of failure to warn, McNair J identified a two-stage inquiry. First, whether good medical practice required that a warning be given before E.C.T. was administered; and secondly, if so, whether a warning would have made any difference to the plaintiff’s decision to undergo treatment.

The court’s summary of the relevant legal approach stated:

(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.

Evidence for the plaintiff came from Dr Randall, who stated in re-examination:

I think it is not right to give no warning of the risks to a patient who can understand the import of the warning.

However, he accepted that other competent doctors might consider it better not to give any warning at all in certain circumstances.

By contrast, the defendants’ psychiatrists emphasised the potential harm of stressing minimal risks to mentally ill and often depressed patients, fearing that it might deter them from the only hopeful treatment. For example, Dr Bastarrechea explained that he did not routinely warn as to technique, saying that if patients asked about risks he would describe them as very slight, but otherwise he did not mention catastrophic risks. He and other defence experts considered that failure to warn of all risks did not mean a practitioner fell below a proper standard of practice.

McNair J told the jury they must decide whether, in adopting a practice of saying little unless questioned, the defendants had fallen below a proper standard of competent professional opinion on the question of warning. He suggested that the jury might think a doctor could not be criticised for not emphasising minimal dangers to a mentally ill patient when he believed E.C.T. was the only realistic hope of cure.

On causation, he pointed out that the only person who could truly say what he would have done if warned was the plaintiff, yet he had not been asked that specific question in evidence. The judge warned the jury that without such evidence it would be “mere speculation” to decide that the plaintiff would have refused treatment if told of a one in 10,000 risk, and that unless the plaintiff satisfied them he would not have taken the treatment if warned, there was nothing in the failure-to-warn point.

Emphasis on misadventure versus negligence

Before leaving liability, McNair J cited with approval passages from Denning L.J.’s judgment in Roe v. Minister of Health, urging caution in equating rare mishaps with negligence. Denning L.J. had observed that it is easy, with hindsight, to condemn as negligent what was in truth only misadventure, especially in cases involving hospitals and doctors, and stressed the risks inherent in medical advances. One significant passage quoted was:

We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.

This reinforced the direction that the jury must not allow the severity of the plaintiff’s injury to lead them to impose liability where the defendants had followed a recognised and responsible professional practice.

Outcome

The judge left two questions to the jury: (1) whether they found for the plaintiff or the defendants; and (2) if for the plaintiff, what damages to award. After 40 minutes’ retirement, the jury returned a verdict for the defendants. Judgment was entered accordingly.

Implications

The case articulated a key principle for medical negligence: a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion skilled in the relevant field, even if other competent doctors would have acted differently.

The judgment confirms that where professional opinion is genuinely divided on clinical techniques—such as the routine use of relaxants, or the degree of manual restraint in E.C.T.—courts should not prefer one body of opinion over another, provided the practice followed is supported by a responsible and competent body of practitioners.

On failure to warn, the case indicates that whether a warning is required is itself judged by reference to competent professional practice, and that a claimant must prove not only a breach of that practice but also that, if properly warned, he would have declined the treatment.

The decision underscores judicial reluctance to equate rare, serious complications with negligence where doctors have acted within recognised professional standards, and highlights the broader policy concern—expressed through the quotation from Roe v. Minister of Health—that imposing liability for every adverse outcome might inhibit medical initiative and distort clinical judgment.

Verdict: Jury verdict for the defendants; judgment entered for the defendants.

Source: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (ICLR)