Irrationality, evidence-based medicine and the standard of care

The determination of the legal standard of care in Australia for medical diagnosis and treatment has gone through three apparent phases in modern times: the Bolam era, the post-Rogers v Whitaker era, and the current Civil Liability Acts era. It is conventionally accepted that the two shifts linking these phases were a jettisoning of the Bolam principle in Rogers and a return to a modified Bolam principle in the Civil Liability legislation, with the post-Rogers interregnum being a time of a court-imposed standard. This story is somewhat inaccurate. The Bolam test relied more on practice accepted at the time as proper by a responsible body of medical opinion rather than the practice of a "responsible body of medical men". The ability of post-Rogers courts to override medical evidence was more a rhetorical power than an actual one. And the irrationality condition, which reserves the right to override medical opinion under the Civil Liability Acts, is more dependent on sound evidence than the terminology might suggest. It is not so much that the legal standard of care has changed in dramatic ways as that the content of competent professional opinion has evolved as medical research and practice have developed. There is greater continuity than is usually granted, throughout the three phases, of the standard's reliance on current best evidence and opinion. This is more easily seen with the advent of evidence-based medicine.