Bolam test must clear hurdle of rational analysis
I was interested to read the comments of Professor Sir Michael Rawlins in the news story headed 'NICE replacing Bolam as negligence case defence' (April 12).
The Bolam test provides a defence for a doctor against an accusation of negligence if the doctor has acted in accordance with a responsible body of medical opinion.
None of the bodies quoted mentioned the highly pertinent fact that this test has been modified by the case of Bolitho v City & Hackney HA (1997) which added the requirement that such a body of opinion should withstand rational analysis.
While it may seem far-fetched to suggest NICE guidance could fail the additional Bolitho test, arguably the potential existed with NICE's original guidelines concerning prescribing of Relenza, which was
famously attacked in the Drug & Therapeutics Bulletin.
I agree with Professor Rawlins that 'appropriate adherence to NICE guidelines is likely to be a defence against negligence claims'.
But I would argue that the relevant case law does not support his assertion: 'Where two sets of guidelines conflict, GPs should follow the NICE guidelines.'
While it may be the case that solicitors are keen to see GPs adhering to NICE guidelines, this does not necessarily mean a court would take the same point of view in a test case, if two sets of guidelines were to be seen to conflict.
I would agree, however, that if NICE guidelines are not followed then reasons for the relevant management decisions should be given, and carefully documented.
In my experience of dealing with general practice records in civil cases, the spread of 'paperless practice' is a major concern should a GP's actions require defending.
It seems that first, computer records are less thorough than those written longhand. Second, when releasing notes to solicitors, many GPs do not release computerised records, but only out-of-date paper notes.
The phrase 'no notes equals no defence' seems appropriate.
Dr Peter Gooderham