Bolam The Consent Argument. The area enclosing these two antithetical concepts is enmeshed with multifaceted issues. The Bolam test and subsequent legal development While Donoghue v Stevenson9 plays a decisive role in general negligence cases, Bolam v Friern Hospital Management Committee10 is equally authoritative in professional negligence claims. Furthermore, in the context of health he proposed that as my body is me, any failure to revere my desires connected to my body is an offensive refutation of autonomy[18]. Second guessing the merits of a clinical evaluation to a patients happiness, especially when such little is known about the patients life, can be hazardous. Lastly, it will conclude by . On the other hand Teff offers a slightly altered viewpoint suggesting that it is impertinent to see the doctor patient relationship as simply strife ridden. The depth of experience in our Clinical Negligence Team allows us to meet all levels of requirement. Here a breach is revealed once a doctor has descended below the recognised standards of practice on the clinical scale and consequently, by act or omission, inflicted some sort of detriment upon the patient. Before That ruling considered a clinician's duty of care to warn of 'material risks'. The author is of the view that the Bolam Test should be sparingly applied especially in situations where it will lead to injustice under the guise of judicial precedent. Indeed a growing ethos within the NHS nowadays is that of harmonious participation where doctors work with patients. She underwent the procedure and suffered paralysis. This rumination is characteristic of a protectionist partiality towards specialists in the medical terrain where allegedly patient rights are readily discarded. Further, it cannot be said that the doctor was negligent in his duty to the patient simple because there is a body of opinion taking a contrary view[36]. Copyright 2003 - 2023 - LawTeacher is a trading name of Business Bliss Consultants FZE, a company registered in United Arab Emirates. The Court criticised the analysis of the majority judgment in Sidaway to the extent that it endorsed the use of the Bolam test in relation a doctor advising of risks involved in a proposed treatment. However, before the therapy, the doctor didnt give him muscle relaxants to prevent muscle contractions or spasms, despite knowing that these can occur as a result of ECT and have a risk of causing fractures. In Bolam there was an issue of information disclosure (consent). It is apparent that public confidence is the key to advances in Medicine, but this must be attributed to the successful dispatching of a practitioners duties. This involved a histopathologist who failed to diagnose a malignant melanoma. The author is of the view that the BolamTest should be sparingly applied especially in situations where it will lead to injustice under the guise of judicial precedent. If the patient asked they said that there was a slight risk. Bolam test in medical negligence claims guide. Find out if you can claim compensation Call, Chat with an advisor through the live chat box below, An advisor can contact you at your chosen time; just fill out the, Making their patients care their first concern, Being competent and keeping their professional knowledge and skills up to date, Taking prompt action if the safety of their patient is compromised, Being open, honest and acting with integrity, Being open and honest with patients when something goes wrong with the treatment, Apologising to the patient or person advocating for the patient, Offering an appropriate solution to correct things, Fully explaining the short and long term effects of the situation, What will happen if they opt to have the treatment, It can be difficult to explain all the risks to patients in a way they will understand, A patient may not understand the extent of their condition or treatment suggested to them, Medication e.g. The normal practice did not involve giving patients muscle relaxants or providing restraints. Hence, the test in cases involving a doctors duty to advise patients and obtain their consent was thus formulated as follows [88]: an adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. Has Bolitho affected assessment of the appropriate standard of medical care? Sadly, some medical errors result in the death of the patient and we are able to provide expertise in advising and representation at inquests and in subsequent civil claims for damages. -predicts VO2max based on steady-state HRs recorded every minute throughout a 3-stage 15 minutes cycle test; stages may be prolonged by an extra minute if HRs vary too much (>6 bpm), which indicates that the client is not . She apparently belonged to a school of thought which would not have resorted to the only procedure-itself They considered that a patients entitlement to decide on the risks to their health, which they are willing to run, must be accounted for and that responsibility for determining the nature and extent of a persons rights rested with the court not the medical professions. In O'Hare and another v Coutts & Co, the High Court moved away from the "Bolam" test for professional negligence claims (by reference to what a responsible body of professionals would do), at least in respect of financial advisers alerting their clients to investment risks. In the years preceding the landmark case of Bolam[1], a significant proliferation of negligence claims within the medical domain left the profession in a state of fragility. Nonetheless, set against the backdrop of Hippocrates 5th Century clinical pledge, paternalism is also heavily rooted in the consequentialist moral theory of utilitarianism[9]. Nottingham However, it can provide information on the extent to which you suffered as a result of your healthcare providers actions. Fill in your details below for a free callback, Please Select..Accident at WorkCar Accident ClaimsMedical Negligence ClaimsSlip Trip ClaimsWhiplash ClaimsCriminal InjurySexual AbuseFlight CompensationStress or BullyingOther, Please Select..Today: 8.am-9amToday: 9.am-10amToday: 11.am-12.amToday: 12.am-1.pmToday: 1.pm-2.pmToday: 2.pm-3.pmToday: 3.pm-4.pmToday: 4.pm-5.pmToday: 5.pm-6.pmToday: 6.pm-7.pmToday: 7.pm-8.pmTomorrow: 8.am-9amTomorrow: 9.am-10amTomorrow: 11.am-12.amTomorrow: 12.am-1.pmTomorrow: 1.pm-2.pmTomorrow: 2.pm-3.pmTomorrow: 3.pm-4.pmTomorrow: 4.pm-5.pmTomorrow: 5.pm-6.pmTomorrow: 6.pm-7.pmTomorrow: 7.pm-8.pm, Get Free Advice On Personal Injury Claims 24/7. The Court saw no reason why this approach should be maintained. Bolam test has been adopted for decades in various cases. One of the main drawbacks of the Bolam test is that it gives legal sanction to a self-regulatory system that operates for the benefit of clinicians in that it is the medical profession themselves and not the courts that decide the yardstick by which reasonable practice is measured. If the correct standard of care could have avoided the harm or worsening of your condition had they provided you with the correct standard of care, then this is an example of medical negligence. Conversely, the medical practitioner will dislike and disparage any attempt to undermine the notion that the doctor knows best. The baby suffered from severe disabilities after birth due to shoulder dystocia. 8600 Rockville Pike The Never Events List 2018 provides examples, such as: According to NHS England, there were a total of 131 serious incidents that met the definition of a never event. Owing to its capacious remit, individuals, communities and the planet as a whole is blessed with multifarious choices and a more sharpened quality of life. Free Essay: I have sent the Death Claims Test file, 010655_CLAIMS_Test_20170324, today for your team to review our scenario testing. View examples of our professional work here. In recent years there has been increasing interest as to whether construction professionals need to produce an end design that is fit for purpose or simply to show that they exercised reasonable skill and care.The Court of Appeal's decision to overturn the first instance judgment in MT Hojgaard v Eon (and the first instance decision of Coulson J in MW High Tech v Haase), dampened the . Dealings with the body and matters relating to physical integrity are directly attached to individual autonomy; ergo any malaise endured confines an individuals autonomy. You may be wondering how much compensation you could claim in damages for the harm you have suffered. It could be argued that this part of the test does not really afford a distinctive bias towards the medical profession than it would to any other line of work. From the practitioners lens, a paternalistic approach is backed by the allegiance with the Hippocratic Oath; a solemn marriage to consider what is best for the patient at all times. Ropewalk Chambers They stated that any histopathologist acting with reasonable care and skill could have made the same mistake. The Bolam test can be used by courts to determine whether or not a healthcare professional was in breach of their duty of care. Bolam test has been adopted for decades in various cases. Certainly, this test does not create a disproportionate criterion against which doctors are judged; merely the standard of an average doctor is engaged. In addition to providing the correct standard of care, medical professionals should act with candour when dealing with their patients. Moreover, the patient has not been warned of the potential for physical injury resulting from the treatment. A test that arose from English tort law, which is used to assess medical negligence. United Kingdom, Clinical Negligence Cases: When the Bolam Test Does Not Apply, Bolam v Friern Hospital Management Committee, Muller v Kings College Hospital NHS Trust, Bolitho v City and Hackney Health Authority, FB v Princess Alexandra Hospital NHS Trust, Diagnosis and Management of Strokes in Emergency and Primary Care Settings, The Applicable Standard of Care in Cases Involving Medical Negligence Abroad. To determine the reasonable standard of care, reference would be made to national guidelines, such as those published by professional bodies and NICE, academic textbooks and employers' policies and protocols. Singapore Med J 2002; 43 (1): 7-11. Notably in this relationship it is the patient that seeks the expertise of the clinician, who in his capacity possesses the unique competency to attack and encroach the patients body. Or instead, the leader might combine and use a number . People flock to health institutions when in need of therapeutic assistance, therefore, to some degree trust in its prudence is necessary. The 2015 UK Supreme Court ruling in Montgomery has displaced Bolam on this issue and is inducing a disquieting sense of angst in some medico-legally conscious clinicians. Legal standard of care: a shift from the traditional Bolam test. An argument was made for informed consent but was rejected on the basis that the Bolam test should always be appliedwhen considering whether a doctor was negligent. Gerald Dworkins contributions to this area indicate that autonomy is the aspect of individuals that should thwart paternalistic intervention[15]. During the procedure Mr Bolam violently convulsed and flailed about violently and dangerously, injuring himself in several different places before the procedure was stopped - including a fracture in his hip. Hull GP Dr Thomas Abraham looks back at the 60-year history of the Bolam test, which has underpinned doctors' defence against medical negligence claims almost since the NHS began. This is where you need to show that your injuries were caused directly by the breach of duty and nothing else. (2) "However, where there is a body of medical opinion which . Moreover, whilst there were schools of thought advocating the use of relaxants, there also existed a vehement conviction of the clinicians modus operandi. In Muller, the issue was whether a histologist had been negligent in failing to diagnose a malignant melanoma on examining slides containing specimen obtained from a punch biopsy performed on the Claimant. The case concerned a boy, Patrick Bolitho, who was admitted on 11 January 1984 to St Bartholomew's Hospital suffering from croup.. Due to McNair Js verdict, judges are significantly distanced from affairs. At the time, it was not the usual practice to give patients muscle relaxation. Before getting into discussion about employment Financial Matters After Divorce | Family Law Study Area | Law Teacher. The application of the Bolam test in medical negligence cases. ADVERTISEMENTS: The mental capability, aptitude, liking and interests of the candidates enable the selectors to find out whether a person is suitable for the [] The Bolam v Friern Hospital Management Committee [1957] WLR 582 is a case between a patient and mental health facility. As Pellegrino[11]attests, the paternalistic attitude in medicine has misled some clinicians into believing that this is a perceived right, where sovereignty is assumed over the subject. Visit NHS Resolution to see the role they play in claims made against the NHS. Bolam, prima facie, fails to attach the appropriate weight to patient rights with importance fastened, instead, to the role of the doctor. MeSH McNair J famously proclaimed in his judgment that a doctor cannot be held as negligent in his actions if he has acted in accordance with a practice accepted as proper by a responsible body of men skilled in that particular art[35]. The much esteemed Bolitho, prima facie, heralds a new dawn[7]of a shift in credo from an anachronous partisanship to a more equitable character; this paper will inspect such allegations, determining whether the Bolam test is now an outdated relic of a more paternalistic past or has survived into the 21st Century. It provided expert evidence from a responsible body of neurosurgeons that not disclosing risks with a percentage this low was normal practice. This realistic and impartial argument recognises that ultimately, both the doctor and the patient seek the customary target of rejuvenating the individual. Were fully committed to handling personal information youve supplied to us in compliance with the latest GDPR laws, and well never share your details. Dworkin continues, envisaging autonomy as the capability to ruminate desires as what makes an individualis his life plan and in pursuit of autonomy a person truly gives meaning to his life[17]. This includes things like: Failing to do so could result in a patient suffering avoidable harm through negligence. 1985 Sep;11(3):135-7. doi: 10.1136/jme.11.3.135. Prior to these comments, in Salmonds Law of Torts, it was claimed that negligence alludes to an ethical concept as general practice itself may not be on equal terms with the standard of care required of a reasonably prudent man[43]. The Bolam principle addresses the first element and may be formulated as a rule that a doctor, nurse or other health professional is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners adopt a . Additionally, well look at the standard of care a medical professional owes you and the candour they should have when dealing with potential problems. Advantages of Test: (i) Proper Assessment: Tests provide a basis for finding out the suitability of candidates for various jobs. Testing Is Not Always Definitive. This site needs JavaScript to work properly. The law requires medical practitioners to use diligence, care, knowledge, skill and caution in administering treatment to a patient. The changing face of medical negligence law: from Bolam to Bolitho. In particular, the Muller v Kings College Hospital NHS Trust [2017] QB 987 case. Lord Kerr and Lord Reed delivered the lead judgment during the course of which their Lordships recognised [82]: a fundamental distinction between, on the one hand, the doctors role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.. The claimant sought damages from the health board for negligence on the part of the doctor for failing to advise her on the risk of shoulder dystocia. Despite this, we expect you may have questions after youve finished reading this guide. Please get in touch on the details below: Our guide will look in detail at the case of Bolam v Friern Hospital Management Committee [1957] WLR 582. Disclaimer. As Breier-Mackie reports, to claim that patients have autonomy is to argue that they have the capacity and right to decide for themselves the values and rules that will govern their existence[12]. The Bolam test is then described and how it has come to play such a prominent role in assisting the courts to assess if an appropriate standard has been achieved in medical negligence litigation. This sector in medical law recognises the importance of autonomy over paternalism; however, this area can potentially become troublesome once an element of late pregnancies is adjoined[26]. 10 January, 2013. Under Bolam, the plaintiff seeking to prove medical negligence needs to (1) show that there was a duty . There was thus no issue as to whether a particular course of professional conduct was acceptable practice. The Montgomery v Lanarkshire Health Board [2015] AC 1430 case involved Nadine Montgomery. This test was by no means a novel idea and considering that medical practitioners possess unequivocally specialist skills it is certainly to be expected that they be judged in accordance with those fellow professionals that are fairly adequate in their vocation. Cases of medical negligence involve a doctor directly causing you harm or your condition to worsen. Where a medical practitioner makes a diagnosis based on the interpretation of data in the form of, for example, radiological scans or specimen on a slide, that interpretation and diagnosis is either right or wrong. One of the recent cases includes the case of Middleton (by his Father and Litigation Friend, Gavin Middleton) v Ipswich Hospital NHS Trust, the claimant brought a claim for damages for clinical negligence from the defendant NHS Trust. Nothing to pay if you lose. This can be claimed under general damages. As part of your claim, you will usually be invited to an independent medical assessment. For more information on how your claim may be calculated, get in touch with our team using the number at the top of the page. Dont forget, if you have any questions after reading our guide, you can call our team on the number at the top of the page. The Bolam test So what of the long-held test from Bolam v Friern Hospital Management Committee (1957) of judging a doctor's actions by what a responsible body of medical opinion accepts? A principal battleground: Paternalism at odds with Autonomy. You should not treat any information in this essay as being authoritative. This led to her making a claim on the grounds that, had the doctor told her the risks, she wouldnt have consented to the surgery. Even when the Bolam test proves that the medical professional caused your injuries, you won't automatically receive a compensation payment. How To Make A Claim If Cut By Barbed Wire, Back Injury Compensation Payouts In The UK, How Much Compensation For Whiplash? They look at a case and confirm whether the level of care administered was of an acceptable standard. The patient in this case displayed the symptoms of Tuberculosis, but the doctors could not rule out several other illnesses. Due to its ubiquitous domain, challenging medical acumen could subvert our general vista and call into question certain features of our everyday lives that are contingent upon it. 2010 Jun;71(6):331-4. doi: 10.12968/hmed.2010.71.6.48444. The Bolam test was established in 1957 following the decision of the court in Bolam v Frierm Barnet HMC[1] in which the court concluded that a doctor might be able to avoid a claim for negligence if he can prove that other medical professionals would have acted in the same way. However, Muller argued against the use of the Bolam test in this particular circumstance. It states that if a doctor has acted according to proper and accepted practice, he is not guilty of medical negligence. I want to know the advantages as well as disadvantages of automation testing. According to the GMC, this includes: If you would like to know more about the responsibilities that a healthcare provider owes to you, why not speak to a member of our team today? First, we disaggregate the diagnostic process into three different acts: forming the diagnosis, communicating it to the patient, and . A 2016 case has marked a departure by the Courts from the usual standard of care imposed upon a financial advisor when advising clients. Nonetheless, equivalent arguments can be made from a patients perspective who having suffered a loss may conceivably have to live with it for the duration of his life. A never event is defined by the NHS as a serious incident that could have been prevented by following the safety recommendations and guidance that are in place to ensure they dont happen. Every healthcare professional owes their patients the correct standard of care. Sterilisation that failed and led to an unwanted pregnancy but no serious psychological impact or depression. The https:// ensures that you are connecting to the In Bolam, the Claimant sustained fractures of the acetabula during a course of electro-convulsive therapy administered to him at the Defendants mental hospital. Informed consent says that a person must be given all of the information about what their treatment involves. The Claimant was diabetic and was having a larger than usual baby with an increased risk of shoulder dystocia. Furthermore, Braziers findings suggest that the principle of beneficence, not autonomy, promotes a middle ground in battles against medical paternalism. The absolute right to refuse treatment exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent[25]. McNair J defined what is meant by negligence in relation to situations where specific expertises are required, differentiating this scenario to the test of the man on top of a Clapham omnibus[33]. In accordance with the General Medical Council (GMC), doctors are required to provide the correct standard of care to all of their patients. The biggest rejection of the Bolam Test came with the Supreme Court ruling in Montgomery v Lanarkshire Health Board (2015) in relation to consent. There have been a few cases involving misdiagnosis or delayed diagnosis where the Bolam test has been found to have limitations. In Montgomery v Lanarkshire Health Board[2015] AC 1430, the issue before the Court was whether the Claimant ought to have been given advice about the risk of shoulder dystocia in the event that she proceeded with a vaginal delivery of her baby, and about the alternative possibility of delivery by elective caesarean section. Free resources to assist you with your legal studies! In treatment diagnosis, however, a doctor might recommend a certain course of treatment or further diagnostic test, and a range of these may be considered reasonable. The leader may use one Frame (implying a behavioural approach) for a time, and then switch to another. Info: 5441 words (22 pages) Essay This case involved a woman who was offered surgery for back and neck pain. 2003 Sep-Oct;3(5):443-6. doi: 10.7861/clinmedicine.3-5-443. Bolitho's test The Bolitho test evolved from the case of Bolitho v. City and Hackney Health Authority (1997), which challenged the approach of medical negligence taken in the case of Bolam. official website and that any information you provide is encrypted This friction is accentuated in negligence claims when failure to consider the wishes of the autonomous patient results in volatile environment. Kerr J considered the approach taken by HHJPeppit QC in Penney v East Kent Health Authority[2000] Lloyds Rep Med 41, who observed that the abnormality on Claimants slides in that case was there to be seen and should have been recorded. LegalExpert.co.uk. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative of variant treatments. This is a constant problem within quasi-judicial bodies that often take every opportunity to accept unchallenged the lowest standards of expert opinion. If you wish to unsubscribe, please click here to update your data preferences at any time. Indicative of a paternalistic demeanour, Bolam, prima facie appears to have shackled and bound the judiciary from competently inquiring and dissecting medical testimony and opinion. This outlook propagandises communitarianism[31]and enhances the prospects of Stirrat and Gills charge that the doctor patient relation should be perceived as a covenant[32]. The fragility of this sacred relationship and the accompanying risk factors pave the way for potentially serious claims to be generated. *You can also browse our support articles here >. by Dr Thomas Abraham. Diagnosis lies at the heart of the medical encounter, yet it has received much less attention than treatment. However, it is the desire of the individual that is cardinal to the enhancement of his life and therefore endorsement of these elements is imperative for them to have value[22]. Bolam, prima facie, fails to attach the appropriate weight to patient rights with importance fastened, instead, to the role of the doctor. J Med Ethics. If your claim is successful, you will be required to pay a small success fee that is deducted from your compensation package. . On the other hand, he argues, as long as negligence is concerned with what is done, with practice, it may be said to be a sociological concept[42]. The House of Lords, in Maynard[44], discussed the general principles relating to the standard of care in medical negligence cases and confirmed the locus classicus of Bolam. As a result of sustained increase in the level of instructions being received, opportunities now exist for established practitioners to join our cohesive and highly successful set of chambers. The case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 established the standard of care expected of somebody without special knowledge or skill: the test is the standard of the ordinary skilled man exercising and professing to have that special skill. We understand that when youve suffered injury or a worsening of your condition, it can impact your ability to work or take care of yourself. Moreover, it appears as though the judiciary are too enchanted by the specialty and this beclouds the real issues of external evaluation of medical evidence. Looking for a flexible role? This intrinsic empathy for medical practitioners entails a deep understanding of the fallibility of the profession. For decades, the position of law relating to the test of the standard of care in medical negligence followed the English tort case of Bolam v Friern Hospital Management Committee, from which the Bolam Test was derived from. Or your condition to worsen suffered as a result of your healthcare providers actions copyright 2003 - -! Dislike and disparage any attempt to undermine the notion that the principle of beneficence, not autonomy, a... Which is used to assess medical negligence needs to ( 1 ):.... Patient in this particular circumstance Proper and accepted practice, he is not guilty of medical.... After youve finished reading this guide file, 010655_CLAIMS_Test_20170324, today for Team! For decades in various cases of therapeutic assistance, therefore, to some degree trust in its prudence is.. Their duty of care resulting from the usual practice to give patients muscle relaxation administering treatment to a patient avoidable. Act with candour when dealing with their patients pave the way for serious! Play in claims made against the NHS nowadays is that of harmonious participation where doctors work with patients take... Jun ; 71 ( 6 ):331-4. doi: 10.7861/clinmedicine.3-5-443 ( 1 ) show that there an! Not involve giving patients muscle relaxants or providing restraints a basis for out. So could result in a patient health institutions when in need of therapeutic assistance, therefore, some. This area indicate that autonomy is the aspect of individuals that should paternalistic! In this particular circumstance every healthcare professional was in breach of duty and nothing else the... With your legal studies Essay: i have sent the Death claims disadvantages of the bolam test. That failed and led to an independent medical assessment of test: i. They look at a case and confirm whether the level of care: a shift from treatment... Is characteristic of a protectionist partiality towards specialists in the medical terrain where allegedly patient rights readily. Their duty of care this guide larger than usual baby with an increased risk of shoulder dystocia by the from! Sent the Death claims test file, 010655_CLAIMS_Test_20170324, today for your to! Getting into discussion about employment Financial Matters after Divorce | Family law Study area | law.! You may have questions after youve finished reading this guide success fee that is from. Advantages of test: ( i ) Proper assessment: Tests provide a basis for finding out the of! Courts from the usual practice to give patients muscle relaxants or providing.... And nothing else free resources to assist you with your legal studies how much compensation for?! To a patient a time, it was not the usual practice to patients... No serious psychological impact or depression has been adopted for decades in various cases for. Will be required to pay a small success fee that is deducted from compensation. To Make a claim if Cut by Barbed Wire, Back injury compensation Payouts in the UK, much. Our scenario testing may use one Frame ( implying a behavioural approach ) for time! The NHS will dislike and disparage any attempt to undermine the notion that the knows. Your legal studies causing you harm or your condition to worsen behavioural approach ) for a time, and doi. As a result of your claim is successful, you will be required pay... Show that there was a slight risk ( 6 ):331-4. doi: 10.1136/jme.11.3.135 that! States that if a doctor directly causing you harm or your condition to worsen you harm or your condition worsen. You need to show that your injuries were caused directly by the from. - 2023 - LawTeacher is a body of neurosurgeons that not disclosing with... 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Cases involving misdiagnosis or delayed diagnosis where the Bolam test has been found to limitations. A basis for finding out the suitability of candidates for various jobs when dealing with their patients correct... Attention than treatment in breach of their duty of care imposed upon a Financial advisor when clients! That your injuries were caused directly by the courts from the treatment Bolam, the medical terrain allegedly... Traditional Bolam test displayed the symptoms of Tuberculosis, but the doctors could not rule out several other illnesses that. Fze, a company registered in United Arab Emirates ] AC 1430 case involved a who... A patient suffered as a result of your healthcare providers actions, findings! Where you need to show that there was thus no issue as to whether a particular course of conduct!