LAW AND SOCIETY
and care.24 This concern was arguably not addressed in Montgomery. Conversely, Hii Chii Kok addresses this concern by establishing that both principles of autonomy and beneficence are to be upheld. Neither should dominate the other.25 Therefore, as Hii Chii Kok treats the concept of autonomy more cautiously than Montgomery, it should be applied in the UK Courts. (ii) Practical Considerations: Bolam and Bolitho The Bolam test requires the defendant’s practice to be ‘supported by a responsible body of opinion within the profession26’. The Bolitho addendum requires a consideration of ‘comparative risks and benefits’ and whether the opinion was defensible27. This is despite the existence of another body of opinion which disagrees. The recent shift in the law from a generic ‘responsible body of opinion’ test in Bolam recognises its inadequacies. The law as it stands, recognises one’s ‘interest in their own physical and psychiatric integrity’.28 Hii Chii Kok recognizes the patient’s autonomy as a ‘central principle’,29 in line with Montgomery. However, Hii Chii Kok adds further clarity in defining the use of the Bolam and Bolitho test. In Montgomery, Lord Scarman’s dissenting judgement in Sidaway30 was affirmed. Lord Scarman held that mentally sound adults had right to decide their medical the treatment. This ‘right’ involves disclosure of material risks.31 Disclosing such risks informs one’s consent to decide on the doctor’s subsequent interference with their bodily integrity.32 Hii Chii Kok also recognises the inadequacies of Bolam and Bolitho. For example, it establishes that the Bolam test was conceived in a paternalistic era where ‘much less emphasis’33 was placed on autonomy in relation to beneficence. It rejects any mechanical use of the Bolam test, without regard for the ‘overarching principle which it serves’.34 The ‘overarching principle’ being striking a balance between respecting the ‘diverse views’ of the medical profession and holding doctors responsible.35 Thus, the Bolam and Bolitho tests were retained for medical treatment,36 where doctors 24
Herring (n 4) 213.
25 Hii Chii Kok (n 2) [120]. 26 ibid [76]. 27 ibid. 28 Montgomery (n 3) [108]. 29 Hii Chii Kok (n 2) [4]. 30 Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871. 31
ibid.
32
ibid [87].
33 Hii Chii Kok (n 2) [115].
106
exercise more control than patients. However, where medical advice is concerned, the Bolam and Bolitho tests were deemed inadequate. The tests did not afford a balance between the doctor and patient’s views. The right to choose which risks one undertakes should not be a matter of ‘pure professional judgment37’. Hii Chii Kok affirms Montgomery’s view that this balance needs to be necessitated by discussion38. Oliphant argues that the law tends to fixate on restricting outcomes rather than clarifying principles.39 Thus, adopting the Hii Chii Kok approach conduces for certainty. This is as it clarifies the use of Bolam and Bolitho while establishing perimeters for consent.
Balancing the rights of patients and doctors Objectivity is required to weed out illegitimate claims. Hii Chii Kok ensures objectivity in balancing the rights of patients and doctors. It differs from Montgomery, of which test for disclosure of material risks is largely patient-centric. Thus the Hii Chii Kok approach prevents defensive practice. Its objectivity is achieved in 2 ways. Firstly, objective safeguards are strengthened to prevent claims based on hindsight and outcome bias.40 Therefore, the Courts focus on what the doctor ‘reasonably knew’ rather than ‘what later transpired’.41 This protects the rights of doctors as it limits the scope of medical negligence to their knowledge at the point of treatment. In contrast, the test in Montgomery focused too heavily on what the reasonable person or patient ought to know. This results in a lopsided consideration and assessment of the doctor-patient relationship. Secondly, Hii Chi Kok clarifies that the formulated test will not engender defensive practice. Gunapathy42 raised concerns of defensive practice when judges interfere excessively in the medical profession.43 Their judgments may restrict innovative practice when doctors adhere to ‘mainstream’ approaches. However, Hii Chii Kok clarifies that Montgomery did not dictate what treatment doctors should recommend and is limited to communication of risks and alternative treatment.44 Therefore, the Hii Chii Kok test will not militate against the medical profession. Furthermore, the Hii Chii Kok test is aligned with existing policy arrangements in the UK. For example, 37 Hii Chii Kok (n 2) [121]. 38
ibid.
39 Ken Oliphant, ‘Against Certainty in Tort Law’ in Stephen Pitel, Jason Neyers and Erika Chamberlain (eds), Tort Law: Challenging Orthodoxy (Hart Publishing 2013) 1, 3. 40 Hii Chii Kok (n 2) [158]. 41
ibid [161].
34
ibid [55].
42 Dr Khoo James and Another v Gunapathy D/O Muniandy [2002] SGCA 25.
35
ibid [56].
43
36
ibid [102].
44 Hii Chii Kok (n 2) [87].
ibid [144].