This case rejected the Bolam Test to be applied on the duty and standard of care of a medical practitioner in providing advice to a patient.
Facts of the Case
The respondent, Maree Lynette Whitaker had been almost totally blind in her right eye since an injury at the age of nine. Nearly forty years later in 1983, she had an eye examination. Her general practitioner referred her to Dr Cohen, an ophthalmic surgeon, who prescribed reading glasses and referred her to Christopher Rogers, an ophthalmic surgeon for possible eye surgery. On 22 May 11984, respondent was examined by the appellant for the first time. she was advised that an operation on the right eye would improve its appearance by removing scar tissue and would probably restore significant sight to that eye. At second consultation three weeks later, respondent agreed to undergo the surgery.
The surgery was carried out on 1 August 1984. However, there had been no improvement on the right eye and respondent’s left eye developed an inflammation (sympathetic ophthalmia). Eventually, the respondent loss all sight in the left eye. Respondent alleged that the appellant was negligence under numerous types. The Court only allowed her allegation that the appellant’s failure to warn of the risk was negligent and resulted in the respondent’s condition. The Court disagreed that proper medical practice required the appellant to warn the respondent of the risk if respondent expressed no desire for information but the Court concluded that a warning was necessary as she desire for the relevant information. The Court of Appeal dismissed that appellant’s appeal. Thus, the appellant has appealed on the question of breach of duty and causation.
Issue of the Case
Whether appellant’s failure to advise and warn of risk inherent in the operation constitute a breach of duty?
Judgment of the Case
Judgment It was settled law that the law imposes on a medical practitioner a duty to exercise reasonable case and skill in the provision of professional advice and treatment. This duty also extends to the examination, diagnosis and treatment of the patient by Sidaway v. Governors of Bethlem Royal Hospital (1985) AC 871. Appellant argued that the Bolam principle should be applied to resolve the issue in this case. The Bolam principle was developed in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and it was stated in Sidaway as below:
“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care but the standard of care is a matter of medical judgment.”
There was from a body of reputable medical practitioners that, in the circumstances of the present case, they would not have warned the respondent of the danger of sympathetic ophthalmia and the chances of this condition was only 1 in 14,000 (0.007%). Similarly, the appellant has not thought of mentioning the risk of sympathetic ophthalmia from the operation to the respondent.
It was held that in Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill but that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treatment, the Bolam principle has not always been applied Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life”.
Diagnosis and treatment are but particular duties which arise in the doctor-patient relationship. It also gives rise to a duty to provide information and advice. That duty takes its precise content, in terms of the nature and detail of the information to be provided, from the needs, concerns and circumstances of the patient. A patient may have special needs or concerns which, if known to the doctor, will indicate that special or additional information is required. In a case of that kind, the information to be provided will depend on the individual patient concerned. In other cases, where no specific enquiry is made, the duty is to provide the information that would reasonably be required by a person in the position of the patient.
The respondent may not have asked the right question, yet she made clear her great concern that no injury should befall her one good eye. The trial judge was not satisfied that, if the respondent had expressed no desire for information, proper practice required that the respondent be warned of the relevant risk. But it could be argued, within the terms of the relevant principle as we have stated it, that the risk was material, in the sense that a reasonable person in the patient's position would be likely to attach significance to the risk, and thus required a warning. It would be reasonable for a person with one good eye to be concerned about the possibility of injury to it from a procedure which was elective. However, the respondent did not challenge on appeal that particular finding.
For the reasons stated above, the Court dismissed the appeal.
Principle of the Case
The Bolam principle has been rejected particularly in the field of non-disclosure of risk and the provision of advice and information, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life”.
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