Nursing Law and Ethics

held that there was no doctor±patient relationship between the claimant and the
second defendant, and that accordingly no duty of care existed.
Another example isGoodwillv.BPAS1996), in which the defendant performed
avasectomy on his patient, and then advised him that he was sterile. Three years
later the patient met the claimant, and he told her that he was sterile. They had
unprotected sexual intercourse, and the claimant became pregnant. She sued the
defendant for the cost of upkeep of the child [2]. The court held that the action
must fail. There was no sufficiently proximate relationship between the relevant
doctor and the claimant because the doctor could not know that his advice would
be passed onto and relied on by the claimant.
Anumber of the cases on proximity were decided alternatively on the grounds of
just, fair and reasonable'. It may now be that the questionis it just, fair and
reasonable to impose a duty?' should be expanded to read: `Is it just, fair and
reasonable to impose a duty to pay damages as big as those claimed?', and that in
order for damages to be recoverable, there has to be reasonable proportion
between the damages claimed and the duty assumed.

6.3 Breach of duty

6.3.1 The general principles

Aclinical professional will have discharged his duty to the patient if what that
professional has done would be endorsed by a responsible body of practitioners in
the relevant specialty at the material time. This is the famous and ubiquitousBolam
test [4].
TheBolamtest is a rule not only of substantive law defining what amounts to
adequate care), but also a rule of evidence indicating how a court determines
whether adequate care has been given). Thus inMaynardv.West Midlands RHA
1985) Lord Scarman said:

`... a judge's ``preference'' for one body of distinguished professional opinion to

another also professionally distinguished is not sufficient to establish negligence

in a practitioner whose actions have received the approval of those whose

opinions, truthfully expressed, honestly held, were not preferred... In the realm

of diagnosis and treatment, negligence is not established by preferring one

respectable body of professional opinion to another.' p. 639)

In the past theBolamtest has been caricatured as asserting that a professional
escapes liability if he can get someone who at some stage has qualified in the
relevant specialty and avoided utter professional disgrace to stagger into the wit-
ness box and say that he or some of his unspecified) friends would have acted as
the defendant did. This was never the case in theory, although it may, in some
more outlandish county courts, have worked like that.
That caricature was laid finally to rest in a case before the House of Lords called
Bolithov.City & Hackney Health Authority1997).Bolithounderlined the word
`responsible' in theBolamtest. The central passage reads:

Negligence 77