Defensive medicine involves the situation where doctors administer treatment which is a legally safe option although they may not feel it is in the best medical interest of the patient.
On the other hand the fact that medical opinion is decisive in negligence cases as a result of Bolam, one can question the usurpation of the function of the courts. There are practical considerations to consider such as the fact a responsible body of medical opinion is likely to support the medical profession and there is reluctance to confute opinions of colleagues. This implies that the dominant view of medical opinion may result in overlooking risks to patients and perhaps the application of the Bolam principle prevents the courts from protecting the interests of patients which the doctors may ignore. Considering negligence actions dealing with professional conduct other than the medical profession can reinforce concerns with the Bolam principle. The Bolam principle has not been applied in negligence actions in a non-medical context. Other cases have referred to Bolam but conclusions illustrate that compliance with professional practice was a relevant factor in determining the standard of care but not determinative. Therefore the Bolam approach is out of line with the stance taken by the courts in relation to other professions. This is reinforced by Professor Fleming :
'By thus deferring to a standard set by the medical profession itself in place of its own usual standard of reasonable care, the law in effect confers a special privilege on the medical profession which it denies to accountants, lawyers and others practising special skills. Its rationale is the layman's ignorance about medical science, coupled with the apprehension of exposing physicians to the vagaries of juy sympathies for victims.'
Another interesting criticism of the Bolam principle is highlighted by Montrose . The Bolam test is practical, taking into account the practice by...