If you’re a doctor and you still think that the Bolam test applies to medical advice, read this.

Hold on, this is old news right? I thought the law on this changed last year…

In 2017, actually. But a doctor acquaintance just told me that she hadn’t found the time to read the case update! I get it, doctors are busy people. So here’s a 5-minute summary (if you don’t have time for a longer read). For the rest of this post, I’m going to assume that you’re a doctor.

Ok, 1-sentence summary please?

The Bolam test (together with the Bolitho addendum) continues to apply when a doctor is diagnosing or treating a patient, but a new test now applies when a doctor is advising a patient: Hii Chii Kok v Ooi Peng Jin London Lucien [2017] 2 SLR 492.

So remind me, what’s the Bolam + Bolitho test?

As long as the doctor’s diagnosis or treatment is supported by a responsible body of opinion within the medical profession, she would not be negligent, even if there are doctors who disagree. The doctors holding that “body of opinion” must have considered the risks and benefits, and the “body of opinion” must be defensible (internally consistent and not contradicted by proven relevant facts).

In other words, as a general rule, if a doctor is diagnosing or treating a patient, and the doctor’s actions (a) would be supported by other doctors; and (b) are not illogical, the doctor is unlikely to be considered negligent.

And what about the new Hii Chii Kok test?

When deciding whether a doctor had given medical advice negligently, the Court will ask 3 questions :-

1. What was the information which was not given to the patient? Is the information relevant and material to that patient?

Material information includes :-

(a) the doctor’s diagnosis;

(b) the prognosis with and without medical treatment;

(c) the nature of the proposed medical treatment;

(d) the risks associated with the proposed medical treatment; and

(e) the alternatives to the proposed medical treatment, and the advantages and risks of those alternatives.

A risk must be disclosed where it is likely, even if the outcome is minor, or where the risk is uncommon but serious (such as paralysis or death). A very severe consequence may not need to be disclosed if its chances of occurring are so low that the possibility is not worth thinking about.

But! Use common sense in deciding what information is material. Don’t just bombard the patient!

And do consider the patient’s personal circumstances. For example, a slight risk of hand scarring may be insignificant to most patients, but it would be significant to a hand model and should be disclosed (yes, it’s a real thing). So pay attention to the questions asked and concerns expressed by the patient.

Bottom line: if the doctor did provide all relevant and material information to the patient, the doctor is probably safe.

2. Was the doctor aware of this information when advising, and if not, was the doctor negligent (under his duty of diagnosis, not advice) in not obtaining or having this information?

We go back to the Bolam + Bolitho test to see if the doctor was negligent in not being aware of this information. Should she have ordered more tests, or looked up the latest medical journals?

Bottom line: if the doctor was not aware of some relevant and material information, but the lack of awareness was not because of negligence, the doctor is probably safe.

3. Why did the doctor withhold the information?

The doctor will have to justify why the information was withheld. For example, information may be withheld if :-

(a) the patient has clearly waived the right to hear further information;

(b) it was an emergency, the patient temporarily could not decide on treatment, and there was no appropriate substitute decision-maker; or

(c) therapeutic privilege applies — the doctor reasonably believes that giving particular information would cause the patient serious physical or mental harm (e.g. where the patient’s decision-making capabilities are impaired, has an anxiety disorder, or may be easily frightened out of safe treatments that can drastically improve their quality of life). But this does not mean that a doctor should prevent a patient who is capable of making a choice from doing so merely because the doctor considers that choice to be contrary to the patient’s best interests.

Bottom line: if the doctor can justify why the information was withheld, the doctor is probably safe.

How should information be provided to patients?

• Present information using words and at a speed that allows the patient to absorb.

• Codeswitch, please.

• Don’t assume that everyone understands medical terminology!

• Document the information that has been provided and keep records of discussions. Cover yourself, yo.

So what’s the conclusion?

• When giving a patient advice, don’t just do what other doctors do.

• Make sure you have obtained all relevant and material information, and provide the information in a way that the patient understands.

• If you choose to withhold any information, be ready to justify why the information was withheld.

Ok, great, I understand this in theory. But how do I apply this in practice? Not all of my patients speak the Queen’s English, you know.

We’re a democracy, not a monarchy. And see my next post. [Link]

Also, do get in touch if you’d like to discuss further. I provide advice on medical law from time to time because my brother is a doctor and loves free advice (who doesn’t?)

As usual, this is not legal advice, for general information only, it ain’t possible to summarise the entire contents of a 79-page judgment into 5-min read, etc etc.