remove_red_eye 624 Views
“The stringent standards regarding disclosure laid down in Canterbury, as necessary to secure an informed consent of the patient is not accepted in the English courts. In England, the standard applicable is popularly known as the Bolam’s test, first laid down in a trial relating to negligence of a medical practitioner (Bolam v. Friern Hospital Management Committee  2 All.E.R. 118).
While instructing the Jury, it was stated thus:
- A doctor is not negligent, if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, 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. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.
- When a doctor dealing with a sick man strongly believed that the only hope of cure was submission to a particular therapy, he could not be criticized if, believing the danger involved in the treatment to be minimal, did not stress them to the patient.
- In order to recover damages for failure to give warning the plaintiff must show not only that the failure was negligent but also that if he had been warned he would not have consented to the treatment.”
Thus, a doctor would be judged as ‘negligent’ if he does not follow acceptable norms of practice using prevalent techniques, does not take due care in choosing the treatment/therapy for cure i.e., takes risks which are high and not just minimal, without even stressing and making the patient aware of it. Furthermore, if the patient, when asked to consent would have declined from consenting to a particular treatment administered, then the doctor has violated the legal obligation of seeking real consent as per Bolam’s law.
Under the doctrine of ‘real consent’, the doctor must warn his patient of the risks inherent in the recommended treatment and the terms of giving such warning must be in accordance with the practice accepted at that time as considered proper by a responsible body of medical opinion. This is Bolam’s law or ‘Real Consent’ (Indian J Radiol Imaging 2008;18(3):195-7).