The Bolam and Bolitho Tests: How Medical Negligence Is Judged in the UK

The Bolam test says a doctor is not negligent if they acted in line with a practice accepted as proper by a responsible body of medical opinion. Bolitho added that this opinion must also withstand logical scrutiny. Together they are how clinical negligence is judged in the UK.

I am Dr Akash Gandhi, an NHS GP since 2012, and I teach medicine applicants at TheUKCATPeople. Medical negligence comes up more often in interviews than any other legal topic. Our medical ethics interview guide covers the ethics that sit around it.

What is medical negligence?

Medical negligence is a legal finding, not a medical one. It means a doctor’s care fell below the standard the law expects, and that this caused real harm.

It is a civil case: the patient or their family wants compensation, not punishment. A claim has to prove four things, and all four must be there:

• Duty of care: once someone is a doctor’s patient, that doctor owes them a duty to take care. Rarely argued about
• Breach: the care fell below the expected standard. This is the part Bolam and Bolitho decide
• Causation: the breach actually caused the harm, rather than harm simply following it. Hardest to prove, and it defeats most claims
• Harm: the patient suffered a real injury or loss. A near miss that harms nobody is not negligence

Key Takeaway: Negligence is care that fell below the standard and caused harm. Causation is the part that usually decides it.

Which four cases do you actually need to know?

Four: Bolam, Bolitho, Montgomery and McCulloch. The table below is most of what you need, because one line on each is enough for any interview.

Bolam and Bolitho govern diagnosis and treatment. Montgomery and McCulloch govern consent, the conversation before a patient agrees to anything.

Key Takeaway: Bolam as qualified by Bolitho, Montgomery for consent, McCulloch for which options count. That sentence covers the whole framework.

What is the Bolam test?

The Bolam test asks one question: would a responsible body of doctors have done the same? If so, the doctor is not negligent, even where others would have acted differently.

He is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

The case: John Bolam was given electroconvulsive therapy, a psychiatric treatment, without muscle relaxants and without a warning about the risk of fracture. He was injured. Doctors of the day genuinely disagreed about relaxants, and the court held that following either view was enough.

• Judged against a reasonable doctor: you are compared with a competent doctor in your speciality, not the best in the country
• A minority view counts: the doctors backing you need not be the majority. A respectable minority is enough
• A floor, not a target: Bolam is the minimum the law accepts. Plenty of care clears it and is still mediocre

Key Takeaway: Bolam is a minimum standard, and the doctors who would have done the same do not have to be the majority.

What did Bolitho add to Bolam?

Bolitho added that the supporting medical opinion has to be logical. A court can reject expert evidence if the doctors giving it cannot show they weighed the risks against the benefits.

The case: two-year-old Patrick Bolitho was in hospital with croup, an illness that narrows a young child’s airway. A nurse twice called the registrar, who did not come. Patrick arrested, suffered brain damage and died. The question became whether the registrar’s refusal to intubate would itself have been negligent.

Lord Browne-Wilkinson said rejecting a genuine body of medical opinion would be rare, and courts seldom do it.

Key Takeaway: Expert opinion still decides most cases, but since Bolitho it has to survive logical scrutiny first.

Why does Montgomery treat consent differently?

Because what a patient is told about risk is judged from the patient’s point of view, not the profession’s. Since the Supreme Court decided Montgomery v Lanarkshire Health Board in 2015, Bolam no longer applies to that conversation.

A risk is material, meaning it must be mentioned, if either:

• a reasonable person in that patient’s position would be likely to attach significance to it, or
• the doctor knows or should know that this particular patient would attach significance to it, as a small risk to fine hand movement would be to a concert pianist

The case: Nadine Montgomery had type 1 diabetes and was small in stature, giving her a roughly nine to ten per cent risk of shoulder dystocia, where a baby’s shoulder sticks during birth. She was not warned and was not offered a caesarean. Her son Sam was born in 1999 with cerebral palsy.

What did McCulloch decide in 2023?

McCulloch decided who chooses which alternative treatments a patient hears about. Montgomery requires a doctor to discuss the risks of reasonable alternatives, but never said who judges what is reasonable.

The case: in McCulloch v Forth Valley Health Board the Supreme Court held that this is answered by Bolam as qualified by Bolitho, not by Montgomery. If a responsible body of doctors would not consider an option reasonable, a doctor need not raise it.

Consent is now patient-led, which is autonomy in practice. The mechanics are in our guides to medical consent, capacity and Gillick competence.

Key Takeaway: Which options are reasonable is a Bolam question. What the patient is told about those options is a Montgomery question.

Does a mistake automatically mean a doctor is negligent?

No. Most mistakes in medicine are not negligent, and many bad outcomes involve no mistake at all. Medicine carries risk that cannot be designed out.

Three different things get called the same thing:

• A bad outcome: the treatment did not work or the illness won. Nobody did anything wrong
• A mistake: something was done that should not have been, or was missed. Often harmless, and normally handled by reporting it and changing the system
• Negligence: the care fell below what a responsible body of doctors would accept and it caused real harm. Only a court decides that

When I run practice interviews, I ask students to say which of the three they are looking at before they judge the doctor. It makes the answer much clearer.

Key Takeaway: A bad outcome, a mistake and negligence are three different things, and saying which one you mean is the first move in any answer.

Are doctors sent to prison for making mistakes?

Very rarely. Almost all clinical negligence is a civil claim for compensation, and prosecuting a doctor over a death at work is unusual because the bar is deliberately high.

The criminal charge is gross negligence manslaughter, and the test comes from R v Adomako in 1994: a duty of care, a breach of it, a death caused by that breach, and conduct so bad, given the risk of death, that it amounts to a crime.

The case: six-year-old Jack Adcock died of sepsis in Leicester in 2011. Dr Hadiza Bawa-Garba, the registrar, was covering multiple wards, short-staffed, with no working IT for test results and no consultant on site for much of the day. She was convicted of gross negligence manslaughter in 2015.

In 2018 the Court of Appeal restored her suspension after the High Court had ordered erasure. Interviewers use it for the question underneath: when is a mistake an individual failing, and when is it the system?

Our full Bawa-Garba guide covers it properly, and the same themes run through Martha’s Rule and Yaser Jabbar. The deliberate-harm cases sit apart: Harold Shipman and Lucy Letby.

Key Takeaway: Prosecution is rare and needs proof beyond reasonable doubt. Treat Bawa-Garba as a system under strain as well as an individual under pressure.

What should a doctor do after something goes wrong?

Tell the patient. The duty of candour is the requirement to be open and honest when care has gone wrong, and it works in two ways:

• Professional: applies to you as an individual doctor and is enforced by the GMC. Be open with the patient, apologise, and put it right where you can
• Statutory: applies to organisations such as hospitals, regulated by the Care Quality Commission. Tell those affected in person, give a truthful account, explain what happens next, apologise, and record it

In my GP clinics this is usually a phone call, not a formal meeting. If a result has been missed or a referral has not gone through, I say what happened, say sorry, and explain how I am putting it right.

An apology is not an admission of liability. The duty came out of the Francis Reports into Mid Staffordshire, sits alongside Good Medical Practice, is overseen by the CQC, and overlaps with whistleblowing.

Key Takeaway: Make the patient safe, tell them honestly what happened, apologise, and report it. Saying sorry is not admitting liability.

How can I talk about medical negligence in my medicine interview?

Lead with the standard rather than your opinion: say what a doctor is judged against, then work out whether this case meets it.

Four steps, around two minutes:

1. Name the standard. Would a responsible body of doctors have done the same, and does that view stand up logically?
2. Say which of the three you mean. A bad outcome, a mistake or negligence. Saying so early keeps the answer honest
3. Look at the system as well as the person. Staffing, handover, IT, supervision and fatigue all shape what happened
4. Say what happens next. Be open under the duty of candour, apologise, report it, and change what allowed it

What interviewers are testing:

• whether you can tell a bad outcome, a mistake and negligence apart
• whether you look at the system and the individual rather than only one of them
• whether you can talk about blame without becoming defensive or harsh
• whether you would be honest with a patient after getting something wrong

You do not need a clinical example. If you have watched a team run a checklist on placement, sat through a safety briefing at work, or been warned about risks before signing a consent form, you have seen this.

Key Takeaway: Standard, then which of the three happened, then the system, then what happens next. Four moves that fit almost any negligence station.

What interview questions could come up on this?

You are unlikely to be asked any of these word for word, and you do not need a prepared answer to each one. Use them to check your understanding: if you could speak for a minute on most of them, you know this topic well enough for whatever the interviewer actually asks.

Questions to get you thinking

1. What is the Bolam test, and is it still the law?
2. Bolam and Bolitho are usually mentioned together. What did Bolitho change?
3. How does a court decide whether a doctor has been negligent?
4. Should doctors be prosecuted when a patient dies because of a mistake?
5. Who should decide which risks of a treatment are worth mentioning, the patient or the doctor?
6. You are a medical student on placement and you see a doctor give a drug at the wrong dose. The patient is fine and nobody noticed. What now?

Harder questions to stretch you

1. Bolam has been criticised for letting the profession mark its own homework. Is that criticism fair?
2. What did McCulloch add to Montgomery, and why does it matter?
3. Does the fear of being sued make doctors better or worse at their job?
4. Should a doctor’s written reflections ever be used as evidence against them?

Model answer: "Should doctors be prosecuted when a patient dies because of a mistake?"

I would start by separating three things. A bad outcome is not the same as a mistake, and a mistake is not the same as negligence. Patients sometimes die when nobody has done anything wrong.

Where a real mistake has caused a death, I think prosecution should be available but rare. The case I would use is Dr Hadiza Bawa-Garba. Six-year-old Jack Adcock died of sepsis in Leicester in 2011, and she was convicted of gross negligence manslaughter in 2015.

She was covering several wards, short-staffed, with the IT for test results down and no consultant on site for much of the day. Prosecute the person at the bedside, change nothing about the rota, and the next child is no safer.

I can see the other side. Families are entitled to accountability, and some conduct falls so far below any reasonable standard that compensation would not answer it. Proof beyond reasonable doubt is a high bar, and I think it sits about right.

So accountability and a learning culture are not opposites. What worries me is that a doctor who is open about an error could end up easier to prosecute than one who says nothing.

I am not in a position to judge any individual verdict. I would want to train somewhere that reports errors openly, because that is what makes the next patient safer.

Why this answer works:

• It defines before it argues. Bad outcome, mistake, negligence. That is the distinction the whole topic turns on
• It uses one case properly. Jack Adcock, Leicester, 2011, convicted 2015. Specifics give the argument something to stand on
• It gives the counter-argument fairly. Conceding that families deserve accountability makes the position sound reasoned
• It is honest about competence. Refusing to second-guess a verdict is right for a school leaver, and it still takes a position

More practice in our 360 MMI and medical school interview questions. The wider framework sits in the four pillars, with non-maleficence most in play. To rehearse an answer like this out loud, we run one to one interview coaching.

Key Takeaway: Define your terms, use one case in detail rather than four in passing, give the other side, then take a position.

What should I take into the interview room?

One line on each case is enough to say something precise about the standard a doctor is held to, rather than only that the doctor should have been more careful.

Related topics: our GMC guide covers the regulatory side, and the Bawa-Garba case is the negligence story panels return to most.

Key Takeaway: Say what standard the doctor was held to before you say whether the doctor was wrong, and the rest follows.