ABSTRACT
The plaintiff who brings an action in medical negligence faces a number of obstacles including practical problems in establishing causation (which are particularly onerous in the medical context),3 evidential problems in proving what went wrong,4 and jurisprudential problems in establishing that her doctor has fallen below the appropriate standard of care. Furthermore, those claims which look likely to overcome these hurdles are likely to be headed off by the medical defence organisations which, in the interests of their members, are keen to prevent the establishment of unfavourable precedents.5 In this chapter, I will focus on the third of these hurdles: the standard of care and, specifically, the operation of what has become known as the Bolam test.6 According to Bolam v Friern Hospital Management Committee, a doctor will be deemed not to have acted negligently where he has acted in accordance with a practice accepted as proper by a responsible body of medical opinion. There is already a substantial body of critique of the Bolam test. However, this has been
largely framed in gender-neutral terms in a way which denies any significance to the fact that the development of medical practice and standards have been activities which have been mainly carried out by men, while the majority of consumers of health care are women.7 I will argue that the conflation in Bolam of what constitutes accepted practice with what should be deemed to be acceptable practice should be a point of special interest and concern to feminist lawyers for two reasons. Firstly, I will argue that it is impossible to understand fully the development of the Bolam principle outside a context of gender. Secondly, I will argue that the impact of Bolam is disproportionate in the effect which it has on men and on women. Before going any further, however, it is necessary to sketch out in slightly more detail how the Bolam test operates.8
