1

Queen’s Bench Division,

England

Bolam
Versus
Friern Hospital Management Committee

BEFORE:
Mc Nair, J.
February 20, 21,22,25,26, 1957.

Action.
In this action John Hector Bolam, the Plaintiff, claimed damages against Friern Hospital
Management Committee, the Defendants, in respect of injuries which he received while undergoing
electro-convulsive therapy on Aug. 23 1954, at Friern Hospital.

The Plaintiff, a salesman, was admitted to Friern Hospital on Apr. 29, 1954, suffering from the after-
effects of a mental illness of the depressive type. He was discharged from the hospital on July 30,
1954, but was readmitted on Aug. 16,1954, suffering from depression. On Aug. 18 the Plaintiff
was examined by Dr. J. de Bastarrechea, consultant psychiatrist attached to Friern Hospital, who
advised the Plaintiff to undergo electro-convulsive therapy, and told him that it was proposed to
apply that treatment on the following day. Electroconvulsive therapy is carried out by placing
electrodes on the head which allow an electric current from a machine to pass through the brain.
One of the results of the treatment is to cause convulsions in the nature of a fit. Dr. De Bastarrechea
did not warn the Plaintiff of the risks involved, one of which was the risks of fracture. The Plaintiff
signed a form consenting to the treatment. On August 19 the Plaintiff was treated with electro-
convulsive therapy. He again received this treatment on August 23 when it was administrated by
Dr. C. Allfrey, a senior registrar at Friern Hospital. On this occasion an initial shock was passed
through the Plaintiff’s brain for approximately one second and was followed within approximately four
seconds by a succession of five momentary shocks administered for the purpose of damping the
amplitude of the jerking movements of the Plaintiff’s body. No further shocks were administered
and the convulsion was not unusually violent. The voltage of the current was 150 volts, the
frequency fifty cycles per second. During this treatment the Plaintiff lay in a supine position, a pillow
was placed under his back, and his lower jaw was supported on a moth gag by a male nurse;
otherwise, he was not restrained in any way, although a male nurse stood at each side (viz., three
male nurses in all) of him in case he should move from it. No relaxant drugs were administered to
the Plaintiff prior to the treatment. In the course of this treatment the Plaintiff sustained severe
physical injuries consisting in the dislocation of both hip joints with fractures of the pelvis on each
side which were caused by the head of the femur on each side being driven through the acetabulum
or cup on the pelvis.

The medical evidence showed that competent doctors held divergent views on the desirability of
using relaxant drugs, and restraining the patient’s body by manual control, and also on the question
of warning a patient of the risks of electro-convulsive therapy.

The Plaintiff contended that the Defendants were negligent in permitting Dr. Allfrey to administer
electro-convulsive therapy without the previous administration of a relaxant drug, or without
restraining the convulsive movements of the Plaintiff by manual control, and in failing to warn the
Plaintiff of the risk which he was taking in consenting to have the treatment; and, further, that Dr.
Allfrey was negligent in so administering the treatment and that the Defendants were vicariously
responsible for that negligence.

N.R. Fox-Andrews, Q.C., and R.F. Ormrod for the Plaintiff

J. Stirling, Q.C., and E.D. Sutcliff for the Defendants.

ORDER: Mc Nair, J.
Members of the jury, when some days ago this case was opened to you by counsel for the Plaintiff
and you were told the tragic story of this Plaintiff’s sufferings and his experience, and when you later
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saw him in the witness-box and saw what a hopeless condition he was in, you must inevitably have
been moved to pity and compassion. Nobody hearing that story or seeing that man could fail to be
so moved; but counsel have told you, rightly, that the jury is not entitled to give damages based on
sympathy or compassion. You will only give damages if you are satisfied that the Defendants have
been proved to be guilty of negligence. Counsel for the Plaintiff accepts that he has to satisfy you,
first, that there was some act of negligence, in the sense which I will describe in a moment, on behalf
of the Defendants, which primarily means negligence by Dr. Allfrey, and, secondly, that the
negligence did cause the terrible injuries which the Plaintiff suffered, or at least that the Defendants
negligently failed to take some precaution which would have minimised the risk of those injuries.

Before dealing with the law, I think it right that I should say this, that you have got to look at this
case in its proper perspective. You have been told by one doctor that he had only seen one
acetabular fracture in fifty thousand cases, involving a quarter of a million treatments. It is clear that
the particular injury which produced these disastrous results in the Plaintiff is one of extreme rarity.
Another fact which I think it right to bear in mind is this, that whereas some years ago when a
patient went into mental institution afflicted with mental illness, he had very little hope of recovery –
in most cases he could only expect to be carefully and kindly treated until in due course merciful
death released him from his sufferings - today, according to the evidence which you have had
before you, the position is entirely changed. Distinguished practitioners from some of the leading
mental hospitals in the country have put before you what, I venture to think, are quite staggering
figures of the number of patients now treated in these hospitals. Today, a man who enters a mental
hospital suffering from a particular type of mental disorder has a real chance of recovery. You were
told that that change was due almost entirely to the introduction of physical methods of treatment of
mental illness, and of those physical methods the electro-convulsive therapy, which you have been
considering during the last few days, is the most important. When you approach this case and
consider whether it has been proved against the Defendants that negligence was committed, you
have to bear in mind the enormous benefits which are conferred on men and woman by this form of
treatment.

Another general comment that I would make is this : On the evidence it is clear, is it not, that the
science of electro-convulsive therapy is a progressive science? Its development has been traced
for you over the few years in which it has been used in this country. You may think on this evidence
that, even today, there is no standard settled technique to which all competent doctors will agree.
The doctors called before you have mentioned in turn different variants of the technique that they
use. Some use restraining sheets, some use relaxant drugs, some use manual control; but the final
question about which you must make up your minds is this whether Dr. Allfrey, following on the
practice that he had learned at Friern Hospital and following on the technique which had been
shown to him by Dr. De Bastarrechea, was negligent in failing to use relaxant drugs or, if he decided
not to use relaxant drugs, that he was negligent in failing to exercise any manual control over the
patient beyond merely arranging for his shoulders to be held, the chin supported, a gag used, and a
pillow put under his back. No one suggests that there was any negligence in the diagnosis, or in the
decision to use electro-convulsive therapy. Furthermore, no one suggests that Dr. Allfrey, or anyone
at the hospital, was in any way indifferent to the care of their patients. The only question is really a
question of professional skill.

Before I turn to that, I must explain what in law we mean by “negligence”. In the ordinary case which
does not involve any special skill, negligence in law means this: Some failure to do some act which a
reasonable man in the circumstances would do, or doing some act which a reasonable man in the
circumstances would not do; and if that failure or doing of that act results in injury, then there is a
cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is
generally said, that you judge that by the action of the man in the street. He is the ordinary man. In
one case it has been said that you judge it by the conduct of the man on the top of a Clapham
omnibus. He is the ordinary man. But where you get a situation which involves the use of some
special skill or competence, then the test whether there has been negligence or not is not the test
of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is
the standard of the ordinary skilled man exercising the professing to have that special skill. A man
need not possess the highest expert skill at the risk of being found negligent. It is well established
law that it is sufficient if he exercises the ordinary skills of an ordinary competent man exercising that
particular art. I do not think that I quarrel much with any of the submissions in law which have been
put before you by counsel. Counsel for the Plaintiff put it in this way, that in the case of a medical
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man negligence means failure to act in accordance with the standards of reasonably competent
medical men at the time. That is a perfectly accurate statement, as long as it is remembered that
there may be one or more perfectly proper standards; and if a medical man conforms with one of
those proper standards then he is not negligent. Counsel for the Plaintiff was also right, in my
judgement, in saying that a mere personal belief that a particular technique is best is no defence
unless that belief is based on reasonable grounds. That again is unexceptionable. But the emphasis
which is laid by counsel for the Defendants is on this aspect of negligence: He submitted to you that
the real question on which you have to make up your mind on each of the three major points to be
considered is whether the Defendants, in acting in the way in which they did, were acting in
accordance with a practice of competent respected professional opinion. Counsel for the Defendants
submitted that if you are satisfied that they were acting in accordance with a practice of a competent
body of professional opinion, then it would be wrong for you to hold that negligence was
established. I referred, before I started these observations, to a statement which is contained in a
recent Scottish case, Hunter v. Hanley (1) (1955) S.L.T. 213 at p. 217), which dealt with medical
matters, where the Lord President (LORD CLYDE) said this :
“In the realm of diagnosis and treatment there is ample scope for genuine difference of
opinion, and one man clearly is not negligent merely because his conclusion differs from
that of other professional men, nor because he has displayed less skill or knowledge than
others would have shown. The true test for establishing negligence in diagnosis or
treatment on the part of a doctor is whether he has been proved to be guilty of such failure as
no doctor of ordinary skill would be guilty of if acting with ordinary care.”

If that statement of the true test is qualified by the words “in all the circumstances”, counsel for the
Plaintiff would not seek to say that expression of opinion does not accord with English law. It is just
a question of expression. I myself would prefer to put it this way: A doctor 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. I do not think there is much difference in sense. It is just a different
way of expressing the same thought. Putting it the other way round, a doctor is not negligent, if he is
acting in accordance with such a practice, merely because there is a body of opinion that takes a
contrary view. At the same time, that does not mean that a medical man can obstinately and pig-
headedly carry on with some old technique if it has been proved to be contrary to what is really
substantially the whole of informed medical opinion. Otherwise you might get men today saying: “I
don’t believe in anaesthetics. I don’t believe in antiseptics. I am going to continue to do my surgery
in the way it was done in the eighteenth century”. That clearly would be wrong.

Before I deal with the details of the case, it is right to say this, that it is not essential for you to decide
which of two practices is the better practice, as long as you accept that what Dr. Allfrey did was in
accordance with a practice accepted by responsible persons; but if the result of the evidence is that
you are satisfied that his practice is better than the practice spoken of on the other side, then it is a
stronger case. Finally, bear this in mind, that you are now considering whether it was negligent for
certain action to be taken in August, 1954, not in February, 1957; and in one of the well-known cases
on this topic it has been said you must not look through 1957 spectacles at what happened in 1954.

The Plaintiff’s case primarily depends on three points. First, it is said that the Defendants were
negligent in failing to give to the Plaintiff a warning of the risks involved in electro-convulsive therapy,
so that he might have had a chance to decide whether he was going to take those risks or not.
Secondly, it is said that they were negligent for failing to use any relaxant drugs which admittedly, if
used, would have excluded, to all intents and purposes, the risk of fracture altogether. Thirdly – and
this was, I think, the point on which counsel for the Plaintiff laid the most emphasis – it is said that if
relaxant drugs were not used, then at least some form of manual control beyond shoulder control,
support of the chin, and placing a pillow under the back, should have been used.

Let us examine those three points. Bear in mind that your task is to see whether, in failing to take
the action which it is said Dr. Allfrey should have taken, he has fallen below a standard of practice
recognised as proper by a competent reasonable body of opinion? First let me deal with the
question of warning. There are two questions that you have to consider. First - does good medical
practice require that a warning should be given to a patient before he is submitted to elector-
convulsive therapy ? Secondly - if a warning had been given, what difference would it have made ?
Are you satisfied that the Plaintiff would have said: “ You tell me what the risks are. I won’t take
those risks. I prefer not to have the treatment.”
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The Plaintiff relies, on this aspect of the case, on the evidence of Dr. Randall who you may think,
was a most distinguished psychiatrist, well qualified to express an opinion. He said regarding his
practice as to giving a warning:
“Having assessed the patient, it is then put to him that he might benefit from electro-
convulsive therapy - some people call it electro-shock therapy, but from the point of view of
the patient that is not material because the patient is never aware either that he has a shock
or a convulsion. Our practice at St. Thomas’s Hospital, and my practice at Charing Cross
Hospital is to provide the patient with a consent form.”

Dr. Randall was asked whether he would warn the patient of the risks involved. He answered:
“Yes, I would indeed; in fact, we do. I make a practice always of saying to the patient that,
using the technique of relaxation, he would be given an injection which would put him to
sleep; that he would then be given another injection which would have the effect of
paralysing all his muscles so that he could not move. I explain to the patient that if he were
not given a relaxant drug his body would make some strong movements.”

Dr. Randall was asked about the warning:

“Q. - If you feel very sincerely as a doctor that it is the only hope of relieving this illness,
would you think it wise to discourage the patient by describing to him the possible risk of
serious fractures? A.--- I suppose that one has to form some opinion whether the patient is
likely to be influenced by it. Depressed patients are often deluded about their bodily health,
and nothing will alter their attitude. Taking that distortion of judgment into account, it is
probable that to tell a patient that a risk of fracture exists will not materially alter his attitude
to treatment, or his attitude to his illness.”

If it is right that to tell a patient of the risk of fracture will not materially alter his attitude to treatment or
his attitude to his illness, you may ask yourselves: is there really any great value in giving this
warning? In dealing with consent forms, Dr. Randall says that these forms are provided so that the
patient may be aware of the nature of the treatment, and also because it is the practice of the boards
of governors of hospitals to provide them in case litigation ensues. Then Dr. Randall’s evidence
continued:
“Q. - Does it help the patient in any way to be told all the risks which are involved in
electro-convulsive therapy?
A. - In the outcome I think that is does, because the patient takes the decision whether or
not to have a treatment which might affect his whole future, and at that point he has the
chance of deciding whether he will do it or whether he will not do it.
Q. - Would you quarrel with a point of view as being wholly unsound if it was held that it was
not beneficial to the patient to hear about that sort of thing?
A. - I can believe that there would be circumstances in which it could be considered that it
would not be beneficial to tell a patient of possible dangers and mishaps, subject to what I
have already said.”

Then I put questions to him:

“Q. - Do you thing that other competent people might take a contrary view to the one which
you have expressed?
A.- I think so, my Lord; yes, they might.
Q. - Other competent people might think that it is better not to give any warning at all?
A. - I think that that is going a little further than I could go generally, but I think that other
people might consider ti better not to give any warning at all.”

Counsel for the Plaintiff quite rightly relies on answers which Dr Randall gave in re-examination.
“Q. - Do you think it ever right to give no warning of the risk to a person who can understand
the warning?
A. - I think that it is not right to give no warning of the risks to a patient who can understand
the import of the warning.”

That is the high water mark of the case for the Plaintiff in favour of the view that it was negligent, in
the sense which I have used, not to give a warning.
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Against that, you have to consider the evidence given by the Defendants; first by Dr. De
Bastarrechea, who says:
“I don’t warn as to technique. I don’t thing it desirable to do so. If the patient asks me about
the risks, I say that there is a very slight risk to life, less than in any surgical operation. Risk
of fracture 1 in 10,000. If they don’t ask me anything, I don’t say anything about the risk.”

Dr. de Bastarrechea also said that in his view there was some danger in emphasising to a patient
who ex hypothesi is mentally ill any dangers which in the doctor’s view were minimal, because, if he
does so, the patient may deprive himself by refusal of a remedy which is the only available hopeful
remedy open to him. In cross-examination Dr. de Bastarrechea agreed that when an operation is
decided on, the patient should be carefully examined, but not that he should be warned of all the
risks involved. He agreed that a man should be given the opportunity of deciding whether to take the
risk, but it should be left to him to put questions; he should be told that there were some slight risks,
but not told of the risks of catastrophe.

Dr. Baker, consultant psychiatrist and deputy Superintendent at Bastead Hospital, on the question of
warning, said:
“I have to use my judgment. Giving the full details may drive a patient away. I would not say
that a practitioner fell below the proper standard of medical practice in failing to point out all
the risks involved.”

Dr. Page, deputy medical officer at the Three Counties Hospital, Bedfordshire, said:
“Every patient has to be considered as an individual. I ask them if they know of the
treatment. If they are unduly nervous, I don’t say too much. If they ask me questions, I tell
them the truth. The risk is small, but a serious thing when it happens; and it would be a great
mistake if they refused to benefit from the treatment because of fear. In the case of a patient
who is very depressed and suicidal, it is difficult to tell him of things which you know would
make him worse.”

That is, in very summary form, the evidence on this point that you have to consider ; and, having
considered it, you have to make up your minds whether it has been proved to your satisfaction that
when the defendants adopted the practice that they did (namely, the practice of saying very little and
waiting for questions from the patient), they were falling below a proper standard of competent
professional opinion on this question of whether or not it is right to warn. Members of the jury,
though it is a matter entirely for you, you may well think that when a doctor is dealing with a mentally
sick man and has a strong belief that his only hope of cure is submission to electro-convulsive
therapy, the doctor cannot be criticised if he does not stress the dangers, which he believes to be
minimal, which are involved in that treatment.

The Second point on the question of giving a warning is this: Suppose you come to the conclusion
that proper practice requires some warning to be given, if a warning had been given, would it have
made any difference? Only the Plaintiff can answer that question, and he was never asked it. The
Plaintiff dealt with the point quite shortly when he said:
“On August 16 I was examined by Dr. de Bastarrechea. He told me he recommended
convulsive treatment. I knew what it meant; but Dr. de Bastarrechea did not give me any
warning of any risk.”

The question what the Plaintiff would have done if he had been told that there was a one in ten
thousand risk was never put. Surely, members of the jury, it is mere speculation on your part to
decide what the answer would have been , and you might well take the view that unless the Plaintiff
has satisfied you that he would not have taken the treatment if he had been warned, there is really
nothing in this point.

I now pass to what I venture to believe is the real point which you have to consider, or the two real
points that you have to consider: Was it negligent, in the sense which I have indicated, not to use
relaxant drugs? It is really a double point: Was it negligent not to use relaxant drugs and, if no
relaxant drugs were used, was it negligent to fail to use manual control? But it is easier to take
them separately. On the Plaintiff’s side, the argument is put this way, that if relaxant drugs had been
used, it is common ground that the risk of fracture in the operation would, to all intents and purposes,
be excluded; therefore it ought to be excluded. On the other hand, the defendants say that the risk of
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fracture without the use of relaxant drugs is minimal, although if a fracture does occur it may be very
serious to the patient; but there is also, in the use of relaxant drugs, with an anaesthetic, another
risk which has got to be balanced against the risk of fracture, and that is the mortality risk. The
defendants say that, forming a judgment as best they can as medical men, balancing what they
believe to be a remote risk of fracture on the one hand with what they believe to be a remote risk of
mortality on the other hand, they, as a matter of professional skill, have decided not to use relaxant
drugs except in cases where there is something special in the patient’s condition which indicates
that a relaxant drugs should be used. For instance, if a man has had a recent fracture or is suffering
from some arthritic condition, or, as I think that some witnesses mentioned, hernia. In those
circumstances the defendants say that they would use relaxant drugs merely to avoid the greater
risk of straight electro-convulsive therapy in those particular cases; but that they select the cases in
which relaxant drugs are to be used by the exercise of their clinical judgment. That is the argument,
and you have to make up your minds which you think is right.

Dr. Randall gave evidence in support of the relaxant school of thought. He said that since he has
used relaxant drugs, he has never had a fracture. He also told you that until 1953, the year before the
Plaintiff’s accident, he only used relaxant drugs in selected cases, but in 1953 he started using them
in every case. He agreed, however, that there was a large body of opinion which believed in giving
electro-convulsive therapy straight and unmodified today. In the final questions that I put to Dr.
Randall at the end of his evidence this appeared:
“Q - You told the jury, as I understand it that although you are in favour of relaxants, there is
a large body of opinion of competent persons, whose opinion you respect, who take a
contrary view.
A. - Yes.
Q.- That being so, supposing in August 1954, a practitioner using electro-convulsive therapy
did not use relaxants, could you say that he was falling below the standard of care required
of a competent practitioner merely by failing to use relaxants?
A. - One could not say that. It is a known method of reducing, minimising, fractures, but that
it was not used you could not say many other hospitals would not have taken the same
attitude to it.”

I can summarise the evidence given for the defendants in this way. Dr. de Bastarrechea says that he
started to use relaxant drugs in selected cases as far back as 1948, and continues that practice
today; but that he does not use them universally, for two reasons: because, viewing it fairly, he
believes that the risk of a fracture with any serious results when electro-convulsive therapy is used
straight, i.e. without relaxant drugs, is very small, and because he is conscious that there is a
mortality risk when relaxant drugs are used. He produced figures from Friern Hospital which show
that six deaths were recorded since 1951, following on electro-convulsive therapy: Dr. de
Bastarrechea recalled from his own memory two further deaths in earlier years, making eight in all.
Of those eight deaths, five at least were deaths in cases where relaxant drugs had been used, and
one only was a death resulting from straight electro-convulsive therapy. Those figure are produced
in support of the clinical impression which Dr. de Bastarrechea had formed, that there was some risk
of death in the use of relaxant drugs which he balanced against the risk of fracture without using
them. He formed a judgment, on which he operated in Friern Hospital, that unless there were
indications in favour of using relaxant drugs, it was better not to use them. Dr. Allfrey found the
same practice existing at Knole when he was first trained there. He told you that from 1946 to 1952
no relaxant drugs were used, but from 1949 onwards they began to be used in selected cases but
were never used as a routine. When he arrived at Friern Hospital, he found this same practice, i.e.,
that relaxant drugs were used only in selected cases. Counsel for the Plaintiff urged strongly that
your should come to the conclusion that Dr. Allfrey realised he was wrong, because during the week
following on the misfortune to the Plaintiff he changed his practice. The record book shows that from
Aug. 25 to Aug. 30, the Plaintiff’s operation on Aug. 23 having been the last without relaxants, Dr.
Allfrey always used relaxants. It was said that was because he realised that his previous practice was
wrong. What Dr. Allfrey himself said on that was this:
“Q. - Where there, in that next week, fourteen treatments?
A. - Yes.
Q. - In every case in the week succeeding this unfortunate occurrence every man you
treated had a relaxant.
A. - The reason was because [the Plaintiff] had sustained a fracture and, until I had become
certain in my own mind that there was nothing wrong with my technique, that there was no
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unknown factor which I had not taken into account, I thought that for the next week or to, at
any rate until the return of Dr. de Bastarrechea when I could discuss it with him, I should
take the added risk perhaps of using a relaxant in order to avoid further fractures.”

If that is true, surely there is nothing in the point that, having had this disaster, Dr. Allfrey checks over
his technique and wants to have an opportunity of discussing the matter with Dr. de Bastarrechea.

Dr. Marshall who gave his evidence with extreme moderation and extremely carefully, and who has
the advantage of unique experience, being deputy superintendent of Netherne Hospital, said that he
agreed that if relaxant drugs were properly given, there was really no risk of fracture, but that he
believed that there were other more serious risks, including the risk to life, which should not be
taken as a matter of routine or lightly, but only if there was a definite reason. Dr. Page, from the
Three Counties Hospital, you will remember, started to use relaxant drugs and then had a distressing
experience when a medical colleague of his died on the operating table whilst under relaxant drugs,
which did not predispose him towards the use of relaxant drugs, but his present practice, he told you,
was to use a relaxant drugs in selected cases where indicated. Dr. Baker from Banstead Hospital
said that relaxant drugs were given only when there was an indication in favour, and not otherwise,
as, for instance, in the case of arthritis. On that body of evidence, is it really open to you to say that
mere failure to give relaxant drugs is itself any evidence of negligence in the case of a medical man?
There is a firm body of opinion against using relaxant drugs as a routine, and all the witnesses agree
that there is this body of opinion, although one (Dr. Randall) prefers to take the risk in using relaxant
drugs and thus eliminate the risk of fractures.

We now come to the question of manual control which arises in this way: It is urged by the Plaintiff
that if one does not use relaxant drugs, which one knows will eliminate all risk of fracture, the least
one can do is to exercise some form of manual control. Manual control was not used here, and this
accident happened. The defendants say that there are two schools of thought: There is a school of
thought, to which they adhere, which believes honestly, on reasonable grounds, that if one hold the
patient down firmly, either with a restraining sheet or by a nurse lying over his body the risk of
fracture is increased. Therefore, since the end of 1951, the Defendants have adopted a new
technique of leaving the patient’s limbs free to move, but at the same time holding him down at the
shoulders and seeing that a nurse stands on either side of the couch ready to catch him if he shows
any sign of falling off.

Dr. Randall was called by the Plaintiff in support of this case on the question of using manual control.
He was quite definitely of the opinion, a personal opinion which he said was shared by others, that
some manual control was necessary. Indeed, that is not disputed by the Defendants.

[HIS LORDSHIP considered the evidence of Dr. Randall on this point. Dr. Randall had said that
although there was a school of thought that restraint was unnecessary, he would not in 1954, have
given electro-convulsive therapy without using some form of restraint; he would not, at that time,
have administered the treatment without precautions, i. e. without using a relaxant drug or some
form of manual control. Further he had thought that it would be unwise in 1954 to give the treatment
without using such precautions, because in his experience fractures occurred when restraint was
not used, but occurred to a very much less extent when it was used. Dr. Randall had agreed that
there was a competent body of medical opinion who believed that the more one restrained a patient,
the more likely there were to be fractures. When asked if he thought that a doctor who had decided
not to use relaxant drugs and who, also, had decided not to use any method of manual control
because he held the view that it increased the risk of fracture, was falling below the level of skill of a
competent practitioner, Dr. Randall had said that his own view was that fractures were more
common if restraint was not used, and he would think such a doctor was being foolhardy in not using
restraint of some sort, and that he was using inadequate precautions; he would think that that doctor
was falling below the ordinary standard of care required of a practitioner. HIS LORDSHIP continued:]
That is the view of a skilled person; you have to form your judgment how far Dr. Randall was merely
expressing a personal view in favour of the practice which he preferred, or to what extent (if at all) he
was condemning the practice advocated by the defendants. But with him, as against him, you have
to weight the whole body of opinion represented by the witnesses called by the Defendants. Dr. de
Bastarrechea was quite definite in his view that since he changed over to the use of no manual
control after 1951, a decision which he took as a matter of clinical judgment, he got the impression
that the fracture risk at any rate had not increased. [HIS LORDSHIP reviewed the evidence afforded
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by a consideration of figures from the casualty book of Friern Hospital, and referred to the evidence
of Dr. Marshall to whom the figures were put, concluding that Dr. Marshall did not seem to take the
view that there was anything in that list which suggested that the practice adopted at Friern Hospital
was open to criticism. HIS LORDSHIP continued:]

Dr. Allfrey also dealt with this matter. I have not said anything about Dr. Allfrey in detail, though he is,
you have got to bear in mind, primarily the man under attack, for it was during his operation that the
disaster occurred. You have got to form your judgment of Dr. Allfrey, make up your minds whether
you think that he was a careful practitioner interested in his art, giving thought to the different
problems, or whether he was a man who was quite content just to follow the swim. You may recall
that on quite a number of occasions in the course of his evidence he gave instances, where he had
applied his inquiring mind to the problem and had come to a conclusion. On the use of restraint, he
told you that during his training he knew that there was a school of thought that favoured restraint,
but that he got the impression that the general view was against it. He recalls how he was taught
that there was a greater danger of fracture if two ends of a rigid member like a stick were held firm
than if one was left swinging or both were left swinging, and that persuaded him that there was
something in the view that restraint should not be used. At Knole Hospital he adopted under tuition
(and, as he got older, on his own responsibility) the practice of leaving the limbs free to move, merely
holding down the shoulders. When he came to Friern Hospital he found the same practice was being
carried out there by Dr. D Bastarrechea. The question about which you have to make up your minds
is whether Dr. Allfrey, in following that practice, is doing something which no competent medical
practitioner using due care would do, or whether, on the other hand, he is acting in accordance with a
perfectly well recognised school of thought. Dr. Marshall at Netherne Hospital adopts the same
practice. Dr. Baker at Banstead Hospital adopts the same practice. It is true, and in fact interesting
as showing the diversity of practice, that Dr. Page at the Three Counties Hospital, adopts a
modification of that practice, in as much as he prefers to carry out the treatment in bed, with the
patient controlled to some extent by the blanket, sheets and counterpane. That may be of interest
to you as showing the diversity of practice; but it would not be right to take that as a condemnation of
the practice adopted by the Defendants.

That, members of the jury, is all that I have to say on the question of liability; but, before I leave this
question altogether, I think it right to remind you of, or refer you to, what I venture to say were some
very wise words used recently in the Court of Appeal in Roe v. Ministry of Health (2) ([1954] 2 All E.R.
131), a case not dissimilar to this. It was a most tragic case where two men in the prime of life
were submitted to an anaesthetic for, in both cases, some trivial condition requiring operative
treatment and, as the result of a mishap in the anaesthetic, both men came off the operating table
paralysed. After a very long inquiry, the trial judge came to the conclusion that it had not been
established that, by the standard of care and knowledge operating at the time, the anaesthetist was
negligent. The Court of Appeal took the same view, and one finds this in the judgment of
DENNING, LJ. (ibid., at p. 137):
“If the anaesthetists had foreseen that the ampoules might get cracked with cracks that
could not be detected on inspection they would, no doubt, have dyed the phenol a deep blue;
and this would have exposed the contamination. But I do not think their failure to foresee
this was negligence. It is so easy to be wise after the event and to condemn as negligence
that which was only a misadventure. We ought always to be on our guard against it,
especially in cases against hospitals and doctors. Medical science has conferred great
benefits on mankind, but these benefits are attended by considerable risks. Every surgical
operation is attended by risks. We cannot taken the benefits without taking the risks. Every
advance in technique is also attended by risks. Doctors, like the rest of us, have to learn
by experience; and experience often teaches in a hard way. Something goes wrong and
shows up a weakness, and then it is put right. That is just what happened here.”

Then again (ibid., at p. 139)

“One final word. These two men have suffered such terrible consequences that there is a
natural feeling that they should be compensated. But we should be doing a disservice to the
community at large if we were to impose liability on hospitals and doctors for every thing that
happens to go wrong. Doctors would be led to think more of their own safety than of the
good of their patients. Initiative would be stifled and confidence shaken. A proper sense of
proportion requires us to have regard to the conditions in which hospitals and doctors have
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to work. We must insist on due care for the patient at every point, but we must not condemn
as negligence that which is only a misadventure. “

That concludes what I wish to say on the question of liability.

[HIS LORDSHIP then directed the jury on the question of damages. The jury, having retired and
considered their verdict, found that the defendants were not negligent.]

Judgement for the defendants.

Solicitors : Pennington & Son (for the plaintiff) ; J. Tickle & Co. (for the defendants)