Bolam test

The Bolam test, from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, is the UK standard for determining breach of duty in professional negligence cases: a professional is not negligent if their conduct accords with a practice accepted as proper by a responsible body of opinion in the relevant profession.

Definition §

The Bolam test is the test applied by English courts to determine whether a professional defendant has breached the duty of care owed to a claimant. It holds that 'a man need not possess the highest expert skill … it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art' ^[1]. A professional who acts in accordance with a practice accepted as proper by a responsible body of opinion in the relevant profession is not in breach of duty.

The test was articulated by McNair J in his direction to the jury in a case concerning the administration of electro-convulsive therapy without muscle relaxants or restraints. It has since been applied across the range of professional negligence cases — medical, legal, accountancy, surveying, engineering — and is the principal test of breach of duty of care in such matters ^[1].

The Bolam standard is now qualified by Bolitho v City and Hackney Health Authority, in which the House of Lords held that the court is not bound to accept a body of professional opinion if it is not capable of withstanding logical analysis ^[2]. The combination of the two tests — sometimes referred to as the 'Bolam/Bolitho' standard — is the modern statement of the standard of professional care.

For professional indemnity insurance underwriting, claims handling and dispute resolution, the Bolam test is the doctrinal yardstick by which the merits of professional negligence claims are assessed and expert evidence is structured.

Legal / Regulatory basis §

Bolam v Friern Hospital Management Committee arose from electro-convulsive therapy administered to a patient who sustained serious injuries when his thrashing limbs caused fractures. The patient alleged negligence in three respects: failure to administer a muscle relaxant; failure to use restraints; and failure to warn of the risks. Expert evidence at trial showed that the practice of the defendant doctors was in accordance with one school of medical thought, although a different school took a contrary view.

McNair J directed the jury that 'a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view' ^[1]. The direction was approved by the House of Lords in Whitehouse v Jordan and applied across a wide range of professions thereafter. The Bolam approach was extended beyond medical contexts to legal, accountancy and other professional negligence by a long line of authority.

The qualification in Bolitho did not displace Bolam but added a requirement that the responsible body of opinion must be capable of withstanding logical analysis ^[2]. Lord Browne-Wilkinson explained that the court would not normally find a body of medical opinion to be unreasonable, but that there might be 'rare cases' where the professional opinion was not capable of standing up to logical scrutiny and the court could reject it.

The standard is the standard at the date of the conduct, not the date of the trial. Practices accepted at the time of the act may since have become unacceptable, but the Bolam enquiry looks to contemporary professional standards. Where the defendant professes a specialism, the standard is that of a reasonably competent specialist in that field.

The standard interacts with the duty of care under Hedley Byrne v Heller ^[3] and the duty framework under Caparo Industries plc v Dickman ^[4]. The duty is established by Hedley Byrne/Caparo; breach is judged by Bolam/Bolitho.

How it works in practice §

In every professional negligence claim notified to a PI insurer, the Bolam test informs both the cover analysis and the defence strategy. Although strictly a test of breach, the Bolam enquiry is typically the central battleground at trial.

Defence preparation focuses on the assembly of expert evidence demonstrating that the insured's conduct was in accordance with a responsible body of opinion in the profession at the relevant time. The defendant's expert will normally be a practising or recently retired professional of equivalent seniority. The expert's report must show that the practice followed by the defendant has the support of a responsible (not necessarily majority) body of opinion in the field.

The claimant's expert performs the converse function: identifying the alleged failures and explaining why no responsible body of opinion would have followed the defendant's course. Where the expert evidence is finely balanced, the court is required by Bolam to acknowledge the existence of legitimate differences of professional opinion, and a defendant will normally escape liability if their conduct accords with one such school of thought.

Contemporaneous documentation — file notes, retainer letters, advice memoranda, peer review records and policy and procedure documents — is critical to Bolam defence. The court assesses whether the defendant's conduct conformed with accepted practice as understood at the time, and contemporaneous records are the most credible evidence of what the defendant knew, considered and decided.

The interaction with Bolitho in modern practice is significant. While successful Bolitho challenges remain unusual, expert evidence today is routinely scrutinised for logical coherence: an expert who proffers an opinion that is internally contradictory, that ignores material risks, or that cannot be reconciled with the underlying evidence is vulnerable to Bolitho rejection ^[2].

For PI insurers, the Bolam test informs the consent-to-settle process: where the defence is strong on Bolam grounds the insurer may resist settlement, while if expert evidence is unsupportive early settlement may be preferable. Under the SRA Minimum Terms and Conditions specific arrangements apply ^[5].

Common variations §

Medical context. The original setting of the test. Subject to the Bolitho qualification, Bolam remains the principal test in clinical negligence cases. Note that Montgomery v Lanarkshire Health Board [2015] UKSC 11 modified the standard for informed consent in clinical settings, departing from Bolam for the duty to warn — though the Bolam standard continues to apply to diagnostic and treatment decisions.

Legal practice. Applied to solicitors and barristers. Expert evidence of the standard of an ordinarily competent practitioner in the relevant area of law is the default approach.

Surveying and valuation. Bolam applies to surveyors, although the courts have also developed margin-of-error rules for valuations (typically 5–15 per cent depending on the property) that operate alongside the Bolam standard.

Engineering and construction. Applied to designers and engineers, with reference to recognised codes of practice and to the standards expected of a reasonably competent practitioner in the field.

Accountancy and audit. Applied to accountants, with reference to applicable accounting and auditing standards and to ICAEW or ACCA technical guidance.

Example §

An illustrative example: a general practitioner is sued for failing to diagnose a serious condition presented as a routine ailment. The claimant's expert (a consultant in the relevant specialty) opines that a competent GP would have referred the patient for further investigation. The defendant's expert (a peer GP) opines that the presenting symptoms were within the normal differential for the apparent condition and that no responsible body of opinion in general practice would have referred at that stage.

Applying Bolam, the court must determine whether the defendant's conduct accorded with a responsible body of opinion among general practitioners at the time ^[1]. Applying Bolitho, the court must also consider whether that body of opinion withstands logical analysis: in particular, whether the defendant's reasoning addressed the differential, weighed the risks, and reached a defensible conclusion in the light of those risks ^[2]. If the defence expert evidence is accepted, the claim fails. The PI insurer will fund the defence to the limit of indemnity, subject to wording.

See also §

• /wiki/bolitho-test/ — the logical analysis qualification
• /wiki/breach-of-duty-of-care/ — the broader breach element
• /wiki/hedley-byrne-v-heller/ — duty of care for advice
• /wiki/caparo-v-dickman/ — tripartite duty test
• /wiki/negligent-act-error-or-omission/ — narrower PI trigger
• /wiki/civil-liability/ — broader PI trigger
• /wiki/professional-indemnity-insurance/ — parent product

References §

1. ↑ Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
2. ↑ Bolitho v City and Hackney Health Authority [1998] AC 232 (HL)
3. ↑ Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (HL)
4. ↑ Caparo Industries plc v Dickman [1990] 2 AC 605 (HL)
5. ↑ SRA Minimum Terms and Conditions of Professional Indemnity Insurance — https://www.sra.org.uk