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 stand up to logical scrutiny. Together, they are how the UK decides whether a doctor got it wrong.

I am Dr Akash Gandhi, an NHS GP, and I have been preparing applicants for medicine interviews at TheUKCATPeople since 2012. Negligence comes up more often than any other legal topic, usually through a case such as Dr Bawa-Garba.

Underneath those cases sits the standard a doctor is actually held to. Four judgments built it, and this guide covers all four plus the questions panels build around them.

Which four cases do you actually need?

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

What is the Bolam test?

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.

What that means in practice:

• You are judged against a reasonable doctor in your speciality, not the best in the country
• The body of opinion backing you does not have to be the majority. A respectable minority is enough
• It is a minimum standard, not a definition of good practice. Plenty of care clears Bolam and is still mediocre

The case: John Bolam was given electroconvulsive therapy without muscle relaxants and without a warning about the risk of fracture. He was injured. Doctors at the time genuinely disagreed about whether relaxants should be used, so the court had to decide how to judge that disagreement.

Key Takeaway: Bolam is a floor, not a description of good care, and the doctors backing you need not be the majority.

What did Bolitho add to Bolam?

Bolam alone let the profession set the standard it was judged by. Find a few respectable colleagues to say they would have done the same, and the claim collapsed. Bolitho added a check:

• The court must be satisfied the expert opinion has a logical basis
• If that opinion has not weighed the risks against the benefits, a court can reject it
• Lord Browne-Wilkinson said this would be rare, and it still is. Courts seldom overrule genuine medical opinion

The case: two-year-old Patrick Bolitho was in hospital with croup. A nurse twice called the registrar, who did not come. Patrick arrested, suffered brain damage and died. The registrar said she would not have intubated anyway, so the question became whether that decision would itself have been negligent.

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

Why does Montgomery treat consent differently?

Bolam does not apply to what you tell a patient about risks. Since the Supreme Court decided Montgomery v Lanarkshire Health Board in 2015, that is judged from the patient’s point of view, not the profession’s. A risk is material if either:

• a reasonable person in that patient’s position would be likely to attach significance to it, or
• the doctor is or should be aware 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. She was not told and was not offered a caesarean. Her son Sam was born in 1999 with cerebral palsy after his shoulder became stuck.

UK 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: Since Montgomery, whether a risk needed mentioning is judged from this patient’s point of view, not the profession’s.

What did McCulloch decide in 2023?

Montgomery left one question open. You must discuss the risks of reasonable alternative treatments, but who decides what is reasonable?

In 2023 the Supreme Court answered in McCulloch v Forth Valley Health Board: that part is still Bolam. If a responsible body of doctors would not consider an option reasonable, you do not have to raise it.

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

What does a negligence claim have to prove?

All four must be present:

• Duty of care. Owed to the patient. Rarely disputed
• Breach. The care fell below standard. This is where Bolam and Bolitho apply
• Causation. The breach actually caused the harm. Hardest to prove, and it defeats most claims
• Harm. A real injury or loss. A near miss with no consequence is not negligence

Key Takeaway: Name duty, breach, causation and harm, then flag causation as the sticking point. Ten seconds, and the whole framework is covered.

Is clinical negligence the same as manslaughter?

No. They are different systems with different thresholds, and it is an easy pair to mix up, so it is worth keeping the two separate.

For the criminal charge, the jury must also decide the conduct was so bad, given the risk of death, that it deserves a conviction rather than a compensation claim. That comes from R v Adomako in 1994.

Key Takeaway: Almost all negligence is a civil claim for compensation. Prosecuting a doctor is rare and the bar is deliberately high.

How does the Bawa-Garba case fit in?

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, and in 2018 the Court of Appeal restored her suspension after the High Court had ordered erasure.

Interviewers reach for it because it raises the question behind most negligence stations: 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: Treat Bawa-Garba as a system under strain as well as an individual under pressure, and keep her apart from Shipman and Letby.

What is the duty of candour?

The usual follow-up is what a doctor should do afterwards. The duty of candour applies in two separate ways:

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

An apology is not an admission of legal 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 when the concern is about someone else.

Key Takeaway: After a mistake, make the patient safe, tell them honestly what happened, apologise, report it. Saying sorry is not admitting liability.

What are interviewers actually testing?

Not whether you could pass a law exam. They want to see you can:

• Tell the difference between a bad outcome, a mistake and negligence
• Look at the system as well as the individual
• Talk about blame without getting defensive or beating yourself up
• Say honestly what you would do after making an error

Key Takeaway: They are checking whether you can discuss a doctor getting something wrong without excusing it or condemning the person.

How should you structure your answer?

Four steps, around two minutes:

1. Name the standard. Would a responsible body of doctors have done the same, and does that view hold up?
2. Separate error from negligence. Medicine carries risk that cannot be designed out, and saying so early keeps the rest of the answer honest
3. Look at the system. Staffing, handover, IT, supervision, fatigue
4. Say what happens next. Be open under the duty of candour, apologise, report it, change the system

Key Takeaway: Standard, error versus negligence, system, then what happens next. Four moves that fit almost any negligence station.

What interview questions could come up on this?

Likely questions

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, patient or doctor?
6. A friend says her mother had a serious complication after an operation and was never warned it could happen. Is that negligence?
7. 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?

Less likely questions (harder, but worth knowing)

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?"

My starting point is that the question hides three different things. A bad outcome is not the same as a mistake, and a mistake is not the same as negligence. Medicine carries risk that cannot be designed out, so patients sometimes die when nobody has done anything wrong.

Where a real mistake has been made, 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.

The other side matters too. Families are entitled to accountability, and some conduct falls so far below any reasonable standard that compensation would not answer it. Beyond reasonable doubt is a deliberately high bar, and I think it sits in about the right place.

So my position is that accountability and a learning culture are not opposites. What worries me is that a doctor who is open about an error may become easier to prosecute than one who is not. 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 final position sound reasoned, not rehearsed
• It lands somewhere and comes back to being a doctor. The last two sentences take a position, then connect it to where the candidate wants to train

More practice in our 360 MMI and medical school interview questions and the medical ethics interview guide. The wider framework sits in the four pillars, with non-maleficence most in play here. To rehearse it with feedback, 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.

The one thing to remember

• Bolam: would a responsible body of doctors have done the same?
• Bolitho: can that body justify itself logically?
• Montgomery: what you tell a patient about risk is the patient’s call
• McCulloch: but which options count as reasonable is still the profession’s

Four cases, one line each. That is enough to say something precise about the standard, rather than only that the doctor should have been more careful. Our GMC guide covers the regulatory side.