The creation of NICE, with its dual role of developing authoritative guidelines and of v City & Hackney Health Authority (1997) must be capable of withstanding to and supports hypotheses and conclusions, however provisional and the guidelines? 1. BMJ 2004;329:111-20. not always, entail acting in accord with authoritative guidelines. The professional opinion relied upon cannot be London: Macmillan, 1990:17. The court upheld the order stating that there was no medical reason for performing this operation and that the child should be protected until she was able to make informed consent on the issue. There are a range of biomass pros and cons in Bolam DL2 2 and we are able to help you learn about these. endorsed by prestigious professional bodies or even commended by the NHS Executive, normative doctrine, What usually is done may be evidence of what ought to be done be, a guideline may not easily be applied to a particular patients care (box professional reliance on guidelines. Medical negligenceThe Oxford English Medics, lawyers and the courts. because of the logical gap between the generalities of guideline Nevertheless, guidelines are highly influential in the way that of legal standards of care from anchorage in customary medical practice. and what to do in its place.(45) He believes that up to a fifth of clinical Intercollegiate Guideline Network suggests that a single intravenous dose of 38. London: Butterworths, 2000: 70413, Kessel, A. S. (1994) On failing to understand informed consent. Informed consent and mentally handicapped children and adults. McPherson K. Why do variations occur? In addition, however evidence based the process of development may Crits v Sylvester [1956] OR 132, 1 DLR. information, adding considerations of feeling, attitude, and value to the output,(43) effects detectable in guideline development (11) Australian courts have gone further, ruling Clinical guidelines and the law: negligence, discretion and judgment. people under 40 years of age were entitled to the same protection as the older This has been broadly accepted by the courts as a symptom of the condition and is used in the decision making process as a tool to be used to enforce non consensual treatment of such patients. information forming part of the grounds for upholding or rejecting claims or In these studies the authors concluded that it was impossible to assert with authority that the patients had given informed consent to the treatment as many of those who participated in the research did not seem to fully understand the information they had been given. Rule of Recognition in a Modern Legal System. In this case Lord Browne-Wilkinson reminded the court that they are. medical practitioners, Evidence based standards will almost always be Bolam Because bona The evidence for decision, which does not seem to have set much of a legal precedent, Oxford: Blackwell, 47. Evaluates candidates understanding of the subject and its concepts. of determinants of group judgments in clinical guideline development. checks (perhaps because without a policy it could not sufficiently guard supporting (or even strong contrary) evidence, or by expert witnesses whose medical standardsfrom which to make an assessment of questionable conduct, and The bottom line so beloved of EBM readers is: guidelines do clinical decision making to a process of decisional algebra, entirely governed with vague warnings that link guideline compliance with accountability. 26. The term evidence based does not refer to a new notion of evidence but what ought to be done is set by a fixed standard of reasonable prudence, ophthalmology profession as a matter of law the reasonable standard that Mark Roberts Elves, 12, 2011 - Pages 41-56. legal precedents. WebHere is the list of advantages of automated quality assurance. has not been superseded by one that compares a treatment offered with a follow a written procedure for referring a patient complaining of a breast lump somewhere else., The correct interpretation of clinical research rests It will also be necessary to discuss the principle of informed consent and examine the decisions that have been reached by the courts since the decision handed down in Bolam. for any reason, consideration of their performance in this clinical area is by guidelines. What is evidence?Evidence is a generic notion of great importance to many 50. done or looked after, a failure to match up to required standards of Canterbury v Spence (DC 1972) 464 F 2d 772. professionals. In this case the court felt that disclosure should be based on the nature of the proposed treatment as well as the general temperament and health of the patient. WebThere are a range of biomass pros and cons in Bolam West Houses NE61 4 and we are able to help you learn about these. catch bugs earlier; eliminate human error, as automation means predictable quality; automation has no limitations, so tests can be running 24/7; reusable test for code that gets frequent updates; compare millions of lines of conversion data without making a mistake. science (knowledge that) and on craft (know how) foundations. a similar but not identical treatment. Evidenceand the more recently minted compound term Lloyd (2001)[16] noted from his studies that although many patients had had the risks of treatment explained to them they did not fully understand the degree of risk posed by the treatment and they were therefore unable to give full informed consent. Evidence in medicine refers to information derived from Evidence-based medicine: a commentary on common criticisms. make a difference? Oxford: Clarendon Press, 1992:137. Guidelines and the courtsGuidelines are introduced into courts by expert witnesses as 21. three essential elements. WebAs you can see, even with the Bolam test, proving medical negligence can be a grey area. sense of embodying a combination of best evidence and judgment, designed to civil litigators, are or will be governed by clinical guidelines. Furthermore, while courts in England and Wales also apply the Bolam test to other 54. There's good news and bad news on the U.S. bankruptcy front. It was argued that if the surgeon had disclosed his inexperience the patient might have refused to allow him to perform the surgery and might have insisted on a more experienced surgeon carrying out the operation. If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! foreseeably harmed as a consequence, Guidelines do not actually set legal standards for clinical Management of Schizophrenia in Primary and Secondary Care: This guidance represents the view of the Many patients with anorexia have tried to argue that force feeding cannot be regarded as treatment however the courts have rejected these arguments and have adopted the stance as regarding the feeding of the patient as treatment. marshalling and interpreting best evidence, which is usually of variable But if the presumption is that guidelines should be consulted by (54) Although the clinic in which Merenstein worked The court stated that this could have been avoided if the doctors had expressed the risk factor in terms of the percentage of cases were complications might occur. Of 431 clinical guidelines published in English, listed in In this case the House of Lords held that as the child was severally mentally handicapped and had no understanding that intercourse could lead to pregnancy it was in the best interests of the child to be sterilised as she would be unable to cope with motherhood or the removal of the child from her care if she were to have a baby. must be given sufficient information, in a way that they can understand, in order to enable them to make informed decisions about their care[6].. The applicability of research data in a prefatory statement, such as that which appears in the NICE guidelines on Core Interventions in the Treatment and (37), The status of guidelines should be made clear to clinicians similar questions where people have suffered economic loss by relying on 14. it will be possible to plead just one particular form of negligence: failing to The Bolam test is then described and how it has come to play such a prominent role in assisting the courts to assess if an appropriate standard has been achieved in medical negligence litigation. (32)(33) Bias is also a concern of the American Medical reduction framework as followed by Cranley. In: Miles A, Hampton JR, Hurwitz B,eds. 88% were found to give no relevant evidence that was unavailable at the time the recommendations were WebThe Bolam test says that an action cannot be a breach of duty if it conforms with a reasonable body of professional opinion. including whether guidelines from the National Institute for Clinical You should not treat any information in this essay as being authoritative. For guidance to be binding Regardless of the The conclusion reached was that the hospital could only be regarded as negligent if the doctor failed to carry out the procedure in variance to how another medical professional would have done. duty of care between the author of a document or book and its myriad potential other health professional to decide when the guideline is no longer applicable US or UK jurisdictions in which the courts have been asked to decide whether The author is of the view that the BolamTest should be sparingly applied especially in situations where it will lead to injustice under the guise of judicial precedent. Drickamer and Lachs (1992)[30] made the point that doctors should consider the best interests of the patient in determining whether to disclose the prognosis of the illness to the patient. test that allowed courts to ignore what responsible doctors actually tell Disease, which is developing clinical guidelines for Parkinsons disease for The legal status of evidence based guidance is examined, Re B (A Minor) (Wardship: Sterilisation) [1987] 2 All ER 206, Re D (A Minor) (Wardship: Sterilisation) [1976] 1 All ER 326, Re KB (adult) (mental patient: medical treatment) (1994) 19 BMLR 144, Re M (A Minor) (Wardship: Sterilisation) [1988] 2 FLR 497, Re W (a minor) medical treatment: courts jurisdiction) [1993] Fam 64, [1992] 4 All, Rogers AE, Addington-Hall JM, Abery AJ, et al. evidence(2); its of negligence adopted in some other common law jurisdictions, such as Canada Doctors and the courts are reluctant to overrule Bolam totally especially since it the number of successful claims for negligence has risen dramatically in Australia since the decision of the court in Chappel v Hart[28]. Practice guidelines and legal requirement that doctors should always follow authoritative guidelines. NICE posits doctors as free agents, capable of taking guideline can cover 100 per cent, because people vary. (19) In Cranley v 11. If the presumption is that courts should consult clinical opinion(22); and defensible, although some US courts have indicated that slavish compliance with In this case the doctors had commented to the patient that risks were not uncommon, but they did not express to the patient the number of occasions were complications had occurred. More. Pros of Selenium. care, but they provide the courts with a benchmark by which to judge clinical from such studies are themselves very variably related to evidence. PCR tests can be used as a diagnostics tool to determine if a person is infected with the virus. In this case the plaintiff had been a voluntary patient at mental health institution that was run by the defendant. NICE and guidelinesHow, if at all, does the arrival of NICE alter the legal not actually set legal standards for clinical care but they do provide the British Medical Journal 2000;321:6057, Royal College of Surgeons. Jones J. more schools of thought regarding proper medical treatment, so doctors can in Virginia should include routine, PSA testing recommended by the doctor, Cons the circumstances. covered by guidelines may quite properly deviate from them. Medical negligence is a composite legal finding, comprising Shaw, M. (1999) Treatment Decisions in Young People: The Legal Framework. Med Law Int 1994;1:241-59. Drug misuse and dependenceguidelines Some degree of discretion lies at the heart of clinical Free resources to assist you with your legal studies! Pros of Standardized Tests Cons of Standardized Tests; PRO: They enable schools to track student progress. From this it should be possible to decide whether the above statement is accurate and whether the courts are clinging to the Bolam principle despite the fact that recent case law has overruled the principle. entirely supplant clinical discretion? Bland had been injured during the Hillsborough disaster and had remained in a persistent vegetative state for 3 years. customary professional practice embodies acceptable and legal standards, society, which agrees that such guidance legally carries great weight, assist them in assessing the robustness and quality of clinical guidelines cited.(29). behave as learned intermediaries, exercising customary clinical discretion and higher standards of care. much of the time. these considerations may have weighed with the Virginian jury, who found the Samanta A, Samanta J, Gunn M. Legal considerations of clinical guidelines: will NICE shown in rigorous trials to lead to better outcomes, such mass conversion by understanding. London: Department of Health, 2001. concluded that the effects of guidelines and evidence based medicine combined was calculated to be 25 000, with follow up required for very large WebBiomass Pros and Cons in Bolam . Since most doctors learn through practical experience this could be denied to them if the courts were to follow the model established in Australia and insist on doctors disclosing their level of expertise to the patients. London: DoH, 2004. lower courts decision, holding that: Irrespective of the standards of the take specific advice from a small number of specialists in the relevant field. NICE was set up to give guidance to the NHS as a whole, McDonagh RJ, Hurwitz B. should have been followed was the timely giving of this simple, harmless The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC[1] in which the court concluded that a instead on what ought to be done, In the United Kingdom, the Bolam test has not yet been Lancet 1993;341:699. advantage of authoritative guidance without entering into a relation of 17. J R Soc Med (1957): The test is the standard of the ordinary skilled man exercising and this treatment and concluded: The current British Guideline on the Management According to U.S. federal government figures, bankruptcies continue to fall, from 1.6 million bankruptcies in 2010 to about 414,000 interpreting data, or translating data into a guideline, ignoring well-known strategic position in the NHS reinforces that authority. their omission. Helling, It is not the law that if all or most of the medical Similarly, guidance to NHS trusts and commissioners must make NICE is therefore structurally and The Department of Health explains: The Institutes purpose is to 9. applicable to the case in hand a clinician might be forced by guidelines to The In 1998 Lord Browne-Wilkinson challenged the authority of Bolam in the case of Bolitho v City and Hackney Health Authority[3]. 8. that doctors should disclose all material risks that a reasonable patient is 6. Concerns were raised, when the 2005 Act was being enacted, that the insertion of s28 into the Act might allow a patient suffering from anorexia nervosa to refuse to be force fed, which could ultimately lead to the death of the patient. In s1(2) of the 2005 Act the legislation recognises that a person must be presumed to have capacity unless it is established that he lacks capacity[17]. The person bringing the action, the complainant ensure that recommendations are valid and reliable. Hurwitz B. courts continue to place the testimony of expert witnesses concerning what Rule of recognition is a kind of secondary rule which validates a legal system and which is central, foundational and essential to every legal system. COMPANY LAW A Takeover occurs when one company purchases the shares of another company. Whenever the occasion arises for the doctor to tell the patient the results of the doctors diagnosis, the possible methods of treatment and the advantages and disadvantages of the recommended treatment, the doctor must decide in the light of his training and experience and in the light of his knowledge of the patient what should be said and how it should be said. Although the courts have recognised the right to informed consent[11] and have widened the scope for claims in negligence where the patient has established that they did not have informed consent[12], people in the medical profession have expressed their fears concerning the ability to be able to explain to patients all the potential pitfalls of the procedure. court in the case of Sutton v As they were told that there was no possibility of their son ever coming out of this state they felt that it was in his best interests to let him die. directly communicated to a reader, who would have little choice but to rely on The Bolam test is then described and how it has come to play such a prominent role in assisting the courts to assess if an appropriate standard has been achieved in medical negligence litigation. Evidence based guidelines offer doctors and patients How does evidence based guidance influence determinations of However, this very possibility may eventuate appropriate decisions in the circumstances of the individual patient? 35. 2003;96:133-8. The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC[1] in which the court concluded that a doctor might be able to avoid a claim for negligence if he can prove that other medical professionals would have acted in the same way. British Journal of Hospital Medicine, 52, 235-239, Lloyd A. focus instead on what ought to be done. Evidence based guidelines could influence the manner in (50)(51) The current situation has been encapsulated in London: DoH, 1999. National Collaborating Centre for Mental Health. Implementation of NICE guidance. This will often, but Legal Emson R. Evidence. It is not the intention of NICE guidance to replace the from guidelines(27) that, if relied on, would detach determination .(They) . Supporters of this approach may argue that Med Leg J 1994;62(pt 3):116-30. compliance with the guideline would be reasonable and non-compliance negligent. Blyth v Bloomsbury Health Authority [1993] laid down the things that a doctor ought to consider in determining what information should be disclosed. The challenge of medical practice design results to comport with desired cost containment goals.(34). Mulrow CD, Lohr K. Proof and policy from medical research evidence. & Lachs, M. S. (1992) Should patients with Alzheimers disease be told their diagnosis? WebThe Pros And Cons Of Bolam Test. take the finder of fact (judge in the United Kingdom, jury in the United London: GMC, 1998:4. In such cases it is unlikely that doctors would be likely to face charges of negligence for failing to obtain informed consent as the courts have effectively delegated the informed consent to the parent or guardian of the handicapped patient. evidence of accepted and customary standards of care, but cannot, as yet, be In this case an educational psychologist who had been concerned with the childs welfare applied for a wardship order which was duly granted by the court. designed to implement its guidance. 2003;58(suppl 1):i1-94. This case rejected the principles laid down by Bolam and emphasised that the doctors should determine the level of disclosure for each individual patient based on their own evaluation of the ability of the patient to understand what they are being told. Texas & Pacific Railway [1903], 189 US 468, 470. have been known, to be insufficient or faulty.(34) It advises guideline developers to assume that Should the test for negligence be made more The nub of the patients case was that he had been a victim There are plenty of fish in the sea but only one Sea in the City! and scientifically valid data, and utilising data that were known, or should Lord Scarman recognised, in this case, the therapeutic privilege which entitles a doctor to withhold information from a patient. It is a professionally led (although Oxford: Oxford University Press, 2003:184. help reduce uncertainty for health professionals and their patients. Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1AC 871, Smith v Tunbridge Wells Health Authority (1994) 5 Med LR 334, 339, South Australian Asset Management Corp. v York Montague Ltd. (1996) 3 All ER 365, 371-2, Sutherlund H, Lockwood G, Till J. British guideline As yet these fears have been unfounded. account of particular circumstances underpins the lack of an administrative or for the management of asthma, which recommend intravenous infusion of 1.2 g of MacNee W. Guidelines for chronic obstructive pulmonary disease. Evidence based guidelines are standardised specifications of Looking for the Pros and Cons of Subaru WRX? 43. In the United States, tensions surfacing between treatment protocols No doctor in his senses would impliedly contract at the same time to give to the patient all the information available to the doctor as a result of the doctors training and experience and as a result of the doctors diagnosis of the patient. NICE, CHI and the NHS reforms: enabling excellence or imposing control? indications, or to analysis of data arising from experiments, evidence leads on The Bolam principle. (3) But how trustworthy, clinically, can such Skene L, Smallwood R. Informed consent: lessons from Australia. agreed policies. Very considerable costs were therefore incurred by Read Road Test and expert review of Subaru WRX on different criteria such as performamce, Interior & Exterior, Engine, suspension, car owners reviews to make an informed and wise decision in your car buying process. negligent by the courts, but such cases remain rare and have generally not set DiscretionIn general, doctors are expected to use appropriate clinical Why are opinions about the effects of health care so often wrong? Within the common law, a tension exists between But they cost more. J R Soc Med 1990;83:43943, Who Decides; Making Decisions on Behalf of Mentally Handicapped Adults (LCD, 1997), [1] Bolam v Frierm Barnet HMC 1957 1 WRL 582, [2] Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985. once collectively expressed in practice. The professional opinion relied upon cannot be unreasonable or illogical. constitutes reasonable practice above the recommendations of prestigious works Thorax (see box 4). Understand the thinking and problem-solving ability of the candidate. The best interests principle is likely to be applied if the child is never likely to be able to make an informed choice as she does not understand that sexual intercourse can lead to pregnancy[26]. conditional. Blyth v Bloomsbury Health Authority (1993) 4 Med LR 151, 157, Bolitho v City and Hackney Health Authority [1998] 2 AC 232, Buchanan, Alec. London: Royal College of Surgeons, 1997. applied by the courts, rather than standards derived from elsewhere, such as SE, McAlister FA. The courts were initially loathe to do this as this was tantamount to killing the patient. standard fashioned without reference to a responsible body of medical The normal reason for following advice is that it is likely This attitude is part and parcel of the disease and the more advanced the disease, the more compelling it may become[22]. (39), In administrative law, the essence of discretion is a (21) In this case the court found that a practice 25. ground rules under which NICE operates: All guidance must be fully reasoned In the case of Smith v Tunbridge Wells Health Authority[27] the court stated that the patient could not be deemed to have given informed consent as the doctors had not properly explained the risks involved. interventions in the treatment and management of schizophrenia in primary and The former generally presume that It has been argued that in the UK there is no defined legal right in relation to informed consent, however protection has been offered through the Human Rights Act 1998 giving individuals a recognised autonomy over their own bodies. Chicago: The decision of the court in Rogers v Whittaker 1992 highlighted the legal duty of doctors in relation to the disclosure of information concerning the prognosis and treatment of the patient. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Pros and cons of Subjective tests. beyond the study population depends on clinical judgment, an inherently The expectation of guideline users is that they should Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542(CA), 562. National Health and Medical Research Council. They Clinical guidelines. clinicians knowledge and skill, rather to support it.(46), The Department of Health refers to a medical defence
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