The dull wet summer of 1954 was a season of momentous events: Britain finally ended rationing as it emerged from the devastation of WWII; Elvis Presley released his debut single 'That's All Right'; JRR Tolkien published the first volume of his epic masterpiece of fantasy fiction 'The Lord of the Rings'; Roger Bannister finally broke the four minute mile; and John Hector Bolam admitted himself to the Friern Hospital in London.

Friern Hospital is now a complex of ultra-luxurious apartments, home to the rich and famous of the UK's music industry. The stars of stage and screen who reportedly reside there today probably know little of the building's more macabre past as the Colney Hatch Lunatic Asylum, home to such notable patients as Jack the Ripper suspect, Aaron Kosminski.

However, despite its storied past and glittering present, it is arguably Mr Bolam's brief stay in the facility in 1954 which has most influenced UK, and world, history.

Electric Shocks to the Brain

John Bolam, who was a repeat patient at the Friern Hospital, suffered from depression. When he admitted himself on 16 August 1954 he came under the care of Dr Allfrey, who decided to administer electro-convulsive therapy (ECT).

ECT was a relatively new field of treatment, having first been used in the UK just 15 years earlier. It involves the application of electrical current into a patient's brain in order to induce seizures. Dr Allfrey performed this procedure on Mr Bolam without giving him any anaesthesia or restraint. He was simply lain on a couch with his chin supported and his shoulders held.

Mr Bolam was then induced into a fit of such severity that his femur was driven straight through his pelvis.

The Test for Professional Negligence

Perhaps unsurprisingly, Mr Bolam was aggrieved at the outcome of his treatment and elected to sue the Friern Hospital Management Committee. His claim eventually became known as the leading case in the history of professional negligence in England & Wales.

Mr Bolam alleged that Dr Allfrey had been negligent in administering ECT without giving him a muscle relaxant and/or anaesthetic or otherwise adequately restraining him. He also alleged that Dr Allfrey had been negligent for failing to warn him of the risks involved with the treatment.

Friern Hospital denied liability and, in February 1957, it fell to HHJ McNair to issue instructions to the jury on the proper test to be applied when deliberating on whether Dr Allfrey had been negligent.

This was a question which the Scottish Courts had ruled on two years earlier in the now-seminal case of Hunter v Hanley. In that case, the Lord President of the Court of Session had stated that, to establish liability against a professional, three facts require to be established: 1) that there is a usual and normal practice; 2) that the defender has not adopted that practice; and 3) that the course of action adopted was one that no professional of ordinary skill would have taken if acting with ordinary care. This three stage test has since been immortalised into the fabric of Scots law and is ubiquitously known as the 'Hunter v Hanley Test'.

In Mr Bolam's case, Judge McNair took a slightly different view on the appropriate test for establishing professional negligence. He stated that a professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of professionals skilled in that particular art. He then put it the other way round, stating that a professional is not negligent if they are acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.

Judge McNair's decision gave rise to what became known as the 'Bolam Test' and has since formed the foundation of professional negligence law in England & Wales. It has since been recognised, referenced and followed in numerous jurisdictions around the world.

The Modern Law

Technically, the law of professional negligence in Scotland remains rooted in the Hunter v Hanley Test, which as discussed above, is slightly different to the Bolam Test, but there is often very little difference in the practical application of the two tests and it is not uncommon to see Scottish judgements referring to reasonable bodies of opinion and applying both Hunter v Hanley and Bolam without necessarily making any real distinction between the two tests.

In the 65 years since Hunter v Hanley, the application of the two tests has been refined and revised, with the details of the particular case usually proving decisive. Although the fundamental tests have remained the same, the recent Scottish case of Montgomery v Lanarkshire Health Board introduced the possibility of an adapted test applying when professionals, and particularly medical professionals, are giving information about the risks of a particular course of action.

And Mr Bolam?

It took the jury just 40 minutes to rule in favour of Friern Hospital and find that Dr Allfrey had not committed professional negligence. So, sadly for Mr Bolam, he left court empty handed. Perhaps he consoled himself during the doubtless long and arduous recovery from his debilitating injuries with the prospect that his name might be immortalised in the minds of generations of lawyers across the globe for decades to come…


James Jerman

Senior Associate