Basma v Manchester University Hospitals NHS Foundation Trust: The Scrutiny of a Clinical Judgement

摘要

A 'clinical judgment' is a central and recurring notion in medical law. The notion came into prominence in clinical negligence litigation, where the main issue is whether a doctor has acted reasonably in the circumstances in relation to specific aspects of a patient's care. Traditionally, judges have relied on prevalent medical practice—the Bolam test—to assess clinical judgements. A doctor's clinical judgement would therefore be deemed appropriate if she acted in accordance with a responsible body of medical opinion, and her actions would not be regarded as irresponsible merely because a body of medical opinion existed that may have taken a view to the contrary. Senior judges have attempted not to yield entire control of the assessment to the medical profession by emphasising that a proper clinical judgement should have a 'logical basis'; but the logic of the justificatory argument that underpins a proper judgement has not been satisfactorily explicated. In other words, the following question remains: what are the acceptable premises and structure of the logical argument—the decision-making process—that leads to the conclusion that forms a proper clinical judgment? The common law does not provide a satisfactory answer, and commentators have cautioned against attempts to open 'the "black box" of clinical judgment' in litigation.