legal briefing :

Lowe v Havering trust is the latest case to provide confirmation that judges will no longer take the 'Bolam' test - the longstanding rule that a doctor will not be found negligent if his practice is considered acceptable by a responsible body of medical opinion - at face value but will exercise their own judgement. In a case involving a patient with high blood pressure who had a stroke, experts for the patient deemed the doctor's monitoring practice unacceptable. Those for the trust said that, while not good practice, it was acceptable and a reasonable response to the risk. The court held that where evidence conflicted, the judge was entitled to exercise judgement in resolving the conflict, although in rejecting a coherent and reasoned opinion he had to give a coherent and reasoned explanation for doing so. In this case, the trust's experts had failed to consider the special circumstances of the claimant.

Cherie Booth QC (wife of prime minister Tony Blair) has lost a human rights challenge to the practice of random monitoring of patients' telephone calls. She was lodging the challenge on behalf of a patient in Ashworth Special Hospital. The High Court held that random monitoring of 10 per cent of calls of non high-risk patients did not interfere with their right to privacy under the Human Rights Act.