Simms, PA v Simms (Acting By the Official Solicitor As Litigation Friend), an NHS Trust (Acting By the Official Solicitor As Guardian Ad Litem), an NHS Trust: FD 11 Dec 2002

‘In a situation where there is no application to the court, and the patient does not have capacity to make a decision about medical or surgical treatment, the doctor has, in my judgment, two duties. First he must act at all times in accordance with a responsible and competent body of relevant professional opinion, generally described as the ‘Bolam test’. . . That is the professional standard set for those who make such decisions. There is a second duty. In re A (Male Sterilisation) [2000] 1 FLR 549 I said at page 555 ‘The doctor, acting to that required standard, has, in my view, a second duty, that is to say, he must act in the best interests of a mentally incapacitated patient.’ and ‘In a case where an application is made to the court . . is the judge, not the doctor, who makes the decision that it is in the best interests of the patient that the operation be performed or the treatment be given.’
Dame Elizabeth Butler-Sloss, P
[2002] EWHC 2734 (Fam), [2003] 2 WLR 1465, [2003] Fam 83
England and Wales
CitedBolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
CitedRe A (Male Sterilisation) CA 2000
The court considered the duties of a doctor, asking whether a procedure should be undertaken for a patient without the capacity to consent: Dame Elizabeth Butler-Sloss said: ‘The doctor, acting to that required standard, has, in my view, a second . .

Cited by:
CitedAn Hospital NHS Trust v S (By her Litigation Friend the Official Solicitor) And DG (S’s Father) and SG (S’s Mother) FD 6-Mar-2003
The hospital sought a declaration that it had no obligation to provide a kidney transplant to an eighteen year old youth who had had very severe disabilities since birth. It was argued that his mental condition meant that he would be unable to cope . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.178562