Bolitho v City and Hackney Health Authority [1998] AC 232

Patrick Bolitho, aged two, was admitted to hospital suffering from croup. On two occasions he experienced serious breathing difficulties. A doctor was called but did not attend, a failure that the health authority admitted was a breach of duty. Patrick later suffered respiratory and cardiac arrest, sustained severe brain damage and died. His mother's claim depended on causation. She argued that, had the doctor attended, Patrick would have been intubated and the injury avoided. The doctor said that she would not have intubated him even if she had attended. Medical experts divided on whether a competent doctor could reasonably have made that choice. The authority therefore contended that the admitted failure to attend caused no loss because a non-negligent decision not to intubate was open to the doctor.

Could the authority defeat causation by relying on expert opinion supporting non-intubation, and must a court accept any body of professional opinion as responsible under Bolam?

The House of Lords dismissed the appeal. The court had to decide whether the hypothetical decision not to intubate would itself have been negligent; a defendant could not avoid liability merely by saying that a further negligent omission would also have occurred. Lord Browne-Wilkinson held that professional opinion must have a logical basis. The judge is entitled to reject a body of opinion if it cannot withstand logical analysis, including where experts have not properly weighed comparative risks and benefits. This judicial power would be exercised only in a rare case because genuine differences of professional judgement are common. On the evidence, however, the experts supporting non-intubation had explained the risks of that procedure and their view was logically defensible. The admitted failure to attend therefore did not cause Patrick's death.

The court, not the profession, ultimately determines negligence. A professional practice supported by expert opinion satisfies Bolam only if the court is satisfied that the opinion is responsible, reasonable and logically defensible, particularly in its assessment of the relevant risks and benefits.

Bolitho prevents the Bolam test from becoming automatic immunity whenever a defendant finds a supportive expert. It preserves room for judicial scrutiny while recognising that courts should be slow to reject reasoned professional judgement. The case also demonstrates how breach and causation can interact: the admitted failure to attend caused no actionable loss because the lawful course that would probably have followed would not have prevented the injury. For disclosure of treatment risks, Montgomery now supplies the governing patient-centred approach rather than a Bolam analysis.