the test of the man on the top of the Clapham omnibus, because he has not got
this special skill. The test is the standard of the ordinary skilled man, exercising
and professing to have that special skill.'One possible criticism of theBolamtest is that it might allow a body of specialists
within medicine to attest that a particular practice is followed within the profession
even though it may be less than desirable. The real fear is that the experts called as
witnesses may dictate to the court what amounts to beneficial practice rather than
the court upholding objective standards. In the judgments of the House of Lords in
Bolithov.City and Hackney Health Authority/1996) it was emphasised that the
body of opinion must be reasonable and must have a logical basis. Where this is in
doubt it is open to the court to question the reasonable nature of the practice by
taking into account whether the experts have addressed properly and adequately
the risks and benefits to the patients of the practice before reaching a conclusion
which is defensible. It should be said that it will be very rare indeed for the court to
reach a conclusion that the views genuinely propounded by a medical expert were
unreasonable.
The objectivity of the standard is crucial. The law will take no account of human
failings in determining whether or not there has been a breach of the duty of care.
Within any walk of life, people differ in their capacity to discharge a job. Some are
more innovative or energetic; others are more thorough or painstaking. However,
in imposing an external and objective standard, nurses are given some protection.
Thus, there may be a reason why the nurse failed to meet the required standard ±
tiredness or inexperience for example. Nonetheless, negligence can and will be
found. No-one need suggest that the nurse acted in bad faith. Decisions taken in
good faith may lead to liability if the objective standard of skill and care is not met
[6]. Equally, it will matter not that any failure is a single lapse in a long and trouble-
free career. Liability may follow.
The point is well made in the judgment of Lord Justice Mustill in the case of
Wilsherv.Essex Area Health Authority/1986) in which he speaks of the possible
liability for injuries to a premature baby:
`If the unit had not been there, the plaintiff would probably have died. The
doctors and nurses worked all kinds of hours to look after the baby... For all we
know, they far surpassed on numerous occasions the standard of reasonable
care. Yet it is said that for one lapse they... are to be found to have committed a
breach of duty.'It follows that medical personnel may be expected to perform at a standard which,
in the circumstances, they would find difficult or impossible to meet. In the words
of Brazier [7]:
`a doctor who carries on beyond the point when fatigue and overwork impair his
judgement remains liable to an injured patient. The fact that the doctor was
required by his employer to work such hours will not affect the patient.'This raises a host of issues. InJohnstonev.Bloomsbury Health Authority/1991), the
Court of Appeal held that the defendant health authority could require junior
doctors, by an express term in their contract, to work an average of up to 48 hours
132 NursingLawandEthics