MEDICAL NEGLIGENCE AND PATIENT AUTONOMY

• Citation: (2015) 27 SAcLJ 666
• Date: 01 December 2015
• Published date: 01 December 2015

Bolam Rules in Singapore and Malaysia — Revisited

The classic Bolam test for medical negligence, controversial for its doctor-centric approach, has long been under attack when applied to a particular aspect of the doctor's duty, namely the duty to inform. Leading common law jurisdictions around the world, moved by considerations of patient autonomy, have abandoned or modified the Bolam test. The UK, in a recent landmark decision, departed from its earlier jurisprudence applying Bolam v Friern Hospital Management Committee[1957] 1 WLR 582 to the duty to inform. However, Singapore continues to apply the Bolam test. This article argues that in light of the recent UK decision rejecting its earlier authority, which underpinned Singapore's approach to the duty to inform, the time may be ripe for Singapore to reconsider its position on the continued relevance of Bolam to the duty to inform, and perhaps more generally in medical negligence cases.

I. Introduction

1 Medical negligence and patient autonomy are twin topics of considerable academic, judicial and professional interest. My foray into this field began 15 years ago with a case note entitled, “A New Dawn for Patient's Rights?”,1 which discussed the High of Court of Australia's decision in Rosenberg v Percival2 (“Rosenberg”), in which Kirby J, analysing the doctor's duty to inform, observed: “Fundamentally, the rule is a recognition of individual autonomy that is to be viewed in the wider context of an emerging appreciation of basic human rights and human dignity.”3 That view, although not endorsed by the other judges in Rosenberg, has remained an integral — albeit contentious — issue in the doctor-patient relationship.

2 The tension is uppermost in the context of the duty to inform, an aspect of the comprehensive duty owed by a doctor to the patient. The test for medical negligence, set out in Bolam v Friern Hospital Management Committee4 (“Bolam”), to be elaborated upon later, has long been criticised for perpetuating medical paternalism as courts routinely deferred to medical opinion in determining the standard of care that could reasonably be expected in any particular case. When Bolam is applied to the duty to inform,5 the conflict between “doctor knows best” and patient autonomy is accentuated. Much of the academic criticism of Bolam rides on the horns of this dilemma.

3 This dilemma was resolved with respect to the duty to inform in a recent UK Supreme Court decision, Montgomery v Lanarkshire Health Board6 (“Montgomery”), in which the court unanimously rejected the application of the Bolam test to the duty to inform on the ground that it violated patient autonomy. Lady Hale captured the underlying philosophy of the judgment in this pithy observation:7

It is now well recognised that the interest which the law of negligence protects is a person's interest in their own physical and psychiatric integrity, an important feature of which is their autonomy, their freedom to decide what shall and shall not be done with their body …

However, the test in Singapore remains that stated in Bolam, which was reaffirmed in Singapore in the landmark decision of Dr Khoo James v Gunapathy d/o Muniandy8 (“Gunapathy”) in 2002, and recently applied to the duty to inform.9 Just before Gunapathy was decided, the Malaysian Court of Appeal in Foo Fio Na v Dr Soo Fook Mun10 vexed over the Bolam test before affirming it. Following these decisions, the author published an article11 arguing for a relaxation of the Bolam rules on the basis of the evolving nature of the doctor-patient relationship. This paper is a sequel of sorts to that piece, picking up on developments in Singapore and Malaysia in the period after the publication of that article. Interestingly, the law in the two jurisdictions has diverged, with the Malaysian courts largely rejecting Bolam and the Singaporean courts continuing to apply it — even enhancing its effect — thus giving rise to very real concerns about patient autonomy.

4 This paper begins by providing some background to medical negligence and the Bolam test. It then sets out recent developments in the UK, culminating in the landmark decision of Montgomery, before analysing the jurisprudence in Singapore and Malaysia over the last ten years. The core argument is that the law in Singapore is now out of step with the rest of the common law world and it is timely for the Court of Appeal to reconsider Gunapathy, especially with respect to the doctor's duty to inform. The discussion identifies two theoretical bases that have driven judicial reform of the duty to inform, which may be described as the patient's rights model (the English approach) and the common law adjudication model (the Australian approach).

5 While the end result may be the same with respect to the duty to inform, the underlying philosophy is different: the patient's rights model emphasises patient autonomy and shifts the focus from the doctor's duty to disclose to the patient's right to information. This introduces unnecessary complexities and risks collapsing medical trespass and medical negligence actions. It also raises questions as to the nature of the loss for which compensation is sought: is it the physical harm that eventuates or the intangible loss of the right to make an informed decision?12 Further, an over-emphasis on patient autonomy encourages plaintiffs' counsel to allege failure to inform as a default strategy when the real issue is negligent diagnosis or treatment.

II. Medical negligence and the standard of care

6 Doctors have always occupied a special position in negligence law. This is partly due to historical reasons when medical practice was viewed as a noble profession and doctors were treated with considerable deference and respect. While that view is under challenge in light of modern medical practices,13 there are nonetheless other valid reasons

for having special rules for medical negligence, principally the uncertain scope of liability and the subjective nature of medical practice. Doctors may be exposed to potentially wide-ranging liability as the scope of a doctor's duty is subject to uncertainty at several levels.

7 First, there is the question as to when the duty of care arises. The general rule is that the duty of care only comes into existence after the doctor-patient relationship is established,14 although there have been rare instances where the duty was held to arise with respect to a stranger.15 Secondly, the duty is multifarious, including diagnosis, treatment and care; information and advice; and timely referral. Thirdly, the doctor may be exposed to a variety of potential plaintiffs, including spouses, children, unborn children and employers of patients: the consequences of medical decisions can be far reaching. Where infants are involved, the statute of limitation typically commences at the age of maturity, which may leave doctors, particularly obstetricians, under the Sword of Damocles for over 20 years.16

8 The subjectivity inherent in medical practice is another reason for caution. The doctor's choice of treatment is determined by the particular — sometimes complex — circumstances of the patient, including the patient's personal choice of treatment, and consent to the doctor's preferred treatment. It would be unfair to blame the doctor for a mishap when the patient has insisted on a particular option. In many cases, the health of the plaintiff is already compromised and unrealistic expectations may be placed on the doctor. The doctor's paradox is that ex ante, he is asked to play God; ex post, she is accused of playing God. Finally, while a cliché, it remains true that medical practice is as much an art as a science, calling for nuanced judgments, which would be unfair to second guess with the benefit of hindsight.

9 For these reasons, amongst others, courts have recognised that medical practitioners deserve to be treated differently. The classic test for medical negligence is found in the case of Bolam, where McNair J held as follows:17

The test is the standard of the ordinary skilled man exercising and professing to have that special skill. … A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. … Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.

The strength of this judgment lies in its recognition that professionals may legitimately differ in their assessment of problems and choice of solutions. Therefore, it would be wrong to hold a professional negligent merely because there exists a different professional opinion which appeals to the particular judge. The problem with the Bolam test was its formulaic application by subsequent courts,18 giving rise to a culture of medical paternalism and a judicial approach that bordered on abdicating its adjudicative function.19

10 Inroads were slowly made following the House of Lords' decision in Bolitho v City of Hackney Area Health Authority20 (“Bolitho”), where the court emphasised that a judge could find a defendant negligent despite a body of professional opinion supporting the defendant if the professional opinion was “not capable of withstanding logical analysis”. In such cases, the judge could “hold that the body of opinion [was] not reasonable or responsible”.21 However, despite the apparent incursion into Bolam, in practice there was little, if any, change to the application of Bolam.22 Courts have interpreted Bolitho not as permitting judges to compare and prefer one medical expert's view over another, but only to scrutinise the logical basis of the medical opinion. If the medical opinion is logically defensible, then even if the judge prefers a contrary view, the judge is not permitted to find the defendant

negligent.23...