Influence of guidelines in determining medical negligence

Editor—In his article on the influence of evidence based guidelines in determining medical negligence Hurwitz argues to reject guidelines in favour of a “responsible body of medical opinion,” the fundamental principle laid down in the Bolam test on the standard of care, as he cites.¹

Eighty eight per cent of specialty guidelines did not give any information on searches,² yet they are accepted by most practitioners as the yardstick of clinical practice. A change in clinical practice on the basis of evidence based medicine is a recent phenomenon.³ In 1957, when Bolam was pronounced, evidence based medicine, specialty guidelines, and institutions such as the National Institute for Clinical Excellence were not known. Therefore the principle laid down in the Bolam test, that of an ordinary skilled man exercising and professing to have a special skill, was important to the court's decision then.

The General Medical Council recommends following the guidelines. The Supreme Court of Western Australia rejected the responsible body of medical opinion principle in the Bolam test on the basis of a minority opinion.⁴ In 1993 a court rejected that principle by replacing it with a test of reasonableness as in Bolitho (also cited by Hurwitz). Farquharson said that, although the judge may be guided by the expert evidence, he or she is not on this issue to be directed by it. A responsible medical opinion should be rejected if it is unreasonable and does not stand up to critical analysis. Hurwitz then argues that guidelines are hearsay, and such evidence is not accepted in criminal courts or criminal jurisdiction, but the Bolam test and the current discussion are a civil matter. Hearsay evidence is always accepted in civil court proceedings.

Guidelines such as those issued by NICE allow Bolam principles in their grade A to grade D recommendations.⁵ Guidelines are therefore better than a responsible body of medical opinion.