UKSLSS X AUSLSS A Comparative Study of the Development and Applicability of the “Bolam” test across the United Kingdom, Australia and Singapore

Introduction

The ‘Bolam-Bolitho’ test has long served as the primary standard for determining whether a medical professional has breached their duty of care. Established in Bolam v Friern Hospital Management Committee [1] (“Bolam”), the test, as articulated by McNair J, assesses negligence based on whether a doctor has “acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art [2]”. Bolitho v City and Hackney Health Authority [3] (“Bolitho”) later refined this standard by clarifying that “a responsible body” of medical opinion must have “logical basis” [4].  

It is clear that the United Kingdom (UK), Australia, and Singapore have all made efforts to move away from a strict application of the Bolam-Bolitho test, particularly in cases concerning informed consent. However, while the UK initially embraced a patient-centered model in Montgomery v Lanarkshire Health Board [5] (“Montgomery”), the recent case of McCulloch v Forth Valley Health Board [6] (“McCulloch”) shows that UK courts have retreated towards the Bolam test. In contrast, Australia, following Rogers v Whitaker [7], has long shifted towards a more patient-centered approach, imposing a strong duty on doctors to disclose all material risks. Singapore adopted a hybrid approach in Hii Chii Kok v Ooi Peng Jin London Lucien [8], which was later codified in Section 37 of the Civil Law Act 1909 [9], thus modifying the patient-centered model in Montgomery.

This article will compare how these jurisdictions differ in their legal tests, the extent to which each jurisdiction balances the competing interests of patient autonomy and medical discretion, as well as the resulting policy implications.

The Current Legal Test Applied

The United Kingdom

Historically, the UK has always followed the Bolam test to establish medical negligence. This changed with Montgomery [10], where the Supreme Court held that the Bolam test should no longer be applied in the context of informed consent. Lord Kerr and Lord Reed emphasised a “fundamental distinction” between a doctor’s role in “considering possible investigatory or treatment options” and their role in “discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved [11]”. Regarding the doctor’s professional role in diagnosing a patient, identifying possible treatments, and determining the best course of action, courts generally defer to medical judgment at this stage, so the Bolam test still applies. However, when it comes to the doctor’s obligation to disclose risks and alternatives to the patient, the relevant test is no longer what a reasonable doctor would disclose, but what a reasonable patient would want to know. The standard shifts from doctor-centric to patient-centric, based on an autonomy rationale that “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 [12]”. 

This new Montgomery test was hence introduced, establishing the doctor’s 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 treatments [13]”. Nevertheless, the court still allowed for medical discretion in emergencies and exceptions — but only if the doctor reasonably considered that its disclosure would be seriously detrimental to the patient’s health or where the patient required urgent treatment but was unable to make a decision. The test for ‘materiality’ relied on whether a reasonable person in the patient's situation would regard the risk as significant, or whether the doctor should reasonably recognise that the specific patient would find it significant. However, Montogomery failed to clarify exactly which alternative treatment qualifies as ‘reasonable’ enough for disclosure. In various post-Montgomery cases, such as AH v Greater Glasgow Health Board [2018] CSOH 57 and Bilal v St George’s University Hospital NHS Foundation Trust [2023] EWCA Civ 605, the courts reverted back to the Bolam test to address this issue. 

This return to the Bolam test was ultimately reaffirmed in the recent judgement of McCulloch v Forth Valley Health Board [14]. In McCulloch, the patient was admitted to Forth Valley Royal Hospital (“FVRH”) on two occasions with a working diagnosis of pericarditis. Under the care and assistance of Dr Labinjoh, a cardiologist, he was discharged without being advised on nonsteroidal anti-inflammatory drugs (“NSAID”), a standard treatment for pericarditis. Dr Labinjoh did not consider NSAIDs necessary, believing McCulloch was not suffering from the condition. McCulloch later suffered a fatal cardiac arrest. Citing Montgomery, the claimants argued that NSAIDs were a reasonable alternative treatment and should have been discussed with the patient, and that the hospital was negligent in failing to inform him of this option. The defendants argued that the doctor’s duty of care should be governed by Hunter v Hanley’s [15] “professional practice” test of negligence. 

Applying Bolam, the Supreme Court held that a doctor is only obliged to inform a patient of reasonable alternatives if a responsible body of medical practitioners would also regard the treatment as reasonable [16]. The court also clarifies that a doctor cannot limit discussion to only “the treatment option or options that the doctor himself or herself prefers.” Instead, “in line with Montgomery”, doctors have a duty to inform the patient of “all reasonable treatment options”, assessed using the “professional practice test.” Citing Duce v Worcestershire Acute Hospitals NHS Trust [17], the Court held that distinguishing between reasonable and unreasonable alternative treatments is necessarily an exercise of professional skill and judgment. Since Dr Labinjoh exercised her professional “skill and judgement” and determined that NSAIDs were not a reasonable treatment option, being an opinion supported by a responsible body of medical practitioners, she was not negligent for failing to discuss NSAIDs with Mr McCulloch. 

Though McCulloch appears to place less emphasis on patient autonomy, it does not weaken Montgomery but instead tightens the standard by defining a doctor’s duty to inform as extending only to treatment options deemed reasonable by a responsible body of medical practitioners.

Critics of Montgomery have raised concerns that its patient-focused approach could encourage defensive medicine, where doctors prioritise avoiding litigation over individualised patient care when diagnosing patients. The Supreme Court in McCulloch acknowledged this, stating that overwhelming patients with every possible treatment or diagnosis is neither practical nor beneficial, as many options may be ineffective. 

Hence, McCulloch established a two-step test: first, identifying the risks associated with a medical treatment is a matter of professional skill and judgment, applying Bolam. Second, once a risk is identified, the question of whether the patient should be informed is determined by Montgomery's materiality test. 

Australia

In Australia, the Bolam test has been rejected by the High Court in Australia following earlier decisions in the State Supreme Courts. The courts did not accept the setting of standards by the medical profession as an acceptable way of determining the entitlements of a patient who has suffered harm. There was a perception that the Bolam test allowed the medical profession to determine its own standards of care, meaning a doctor could not be negligent if they acted within the standards of a body of competent medical professionals [18].

The shift from a “reasonable practitioner” standard to a “reasonable patient” standard reflects a growing recognition of the vital role of patient autonomy in medical decision-making. This evolution ensures that healthcare takes a holistic approach, treating the whole person rather than just focusing on a specific body part. It places greater emphasis on informed consent and respects each individual's values and preferences [19]. The increasing education of the population and the diminishing reverence for professionals have led to a decline in the unquestioning acceptance of professional judgment [20]. Moreover, the courts recognise their duty to scrutinise professional practices, ensuring they align with the legal standard of reasonableness—an assessment that cannot be left solely to any other profession [21].

The Bolam test was rejected by the High Court of Australia in Rogers v Whitaker, the leading case on medical negligence and informed consent in Australia. The High Court established a doctor’s duty to disclose material risks to patients as part of informed consent. In this case, the patient, Whitaker, had impaired vision in one eye due to a childhood injury and consulted the surgeon, Rogers, for possible improvement. Rogers recommended surgery but failed to warn her of a rare risk (1 in 14,000 chance) of sympathetic ophthalmia, which resulted in blindness in her unaffected eye. Despite performing the surgery with due care, Rogers was found liable for failing to inform Whitaker of the risk. The court held that a risk is material if “in the circumstances of the particular case a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it [22]” or “if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it [23].” Therefore, this was a landmark case that shifted the “reasonable practitioner” standard from the Bolam test to a “reasonable patient test” in cases where there is alleged failure to inform the patient of risks of treatment.

The departure from the Bolam test is further emphasised in Naxakis v Western General Hospital (1999), where the High Court affirmed that a finding of medical negligence can be made even if the doctor’s conduct aligned with a respectable body of medical opinion [24]. In this case, a 12-year-old was admitted to the hospital after a head injury and treated for a subarachnoid haemorrhage, but was later found to have a burst aneurysm that caused permanent impairment. The neurosurgeon was alleged to have been negligent by not considering an alternative diagnosis or performing an angiogram. The High Court emphasised that the court will ultimately decide the standard of care, diverging from Bolam where it is primarily decided by medical professionals. While the court is deferential to medical opinion in Bolam, they play a more active role in assessing the standard of reasonable care post Naxakis. Thus, the standard of care refers to a reasonable professional with the same qualifications, experience and circumstances as the defendant, and not what the individual doctor thought was reasonable. 

Singapore

In the recent decision of Hii Chii Kok v Ooi Peng Jin London Lucien (“Hii”), the Singapore Court of Appeal (“SCA”) clarified the applicable legal test for determining the standard of care expected from medical practitioners when providing medical advice to their patients. Traditionally, the Bolam test was applied broadly to assess medical negligence without distinguishing between the different stages of diagnosis, advice or treatment. However, in Hii, the SCA recognised the need to depart from this overly deferential approach which placed undue reliance on the medical professional’s own standards, aligning Singapore’s position closer to the UK’s position in Montgomery for cases concerning a doctor’s duty to advise a patient.

In Hii, the patient underwent surgery for suspected pancreatic cancer, but later discovered that the lesions were benign. Suffering severe complications, he sued for negligence in advice, surgery, and post-operative care. The High Court applied the Bolam test and dismissed the claim.

On appeal, the SCA recognised that a patient plays a passive role in diagnosis and treatment but an active role in decision-making when receiving medical advice. The doctor’s duty is not just to recommend treatment but to empower the patient with relevant and material information to make an informed medical decision. Developments in medical ethics and societal attitudes have transformed the doctor-patient dynamic as reflected in the Singapore Medical Council’s Ethical Code and Ethical Guidelines (2016 Edition), emphasising on the need to respect patient autonomy. As a result, the SCA has departed from the Bolam test for medical advice, finding it outdated and inadequate in accounting for the patient’s perspective.

The court stated that the Bolam test continues to apply for matters concerning whether a doctor has been negligent in diagnosis or treatment, but should not apply in relation to the function of providing service and information to the patient [25]. Instead, the SCA provided a modified version of the standard of disclosure adopted in Montgomery using a three-step approach:

Step 1:  Assessing the sufficiency of information given to the patient from the patient’s 

perspective, and whether it was relevant and material.

Step 2:  Assessing whether the doctor was in possession of the information at the material at the time.

Step 3:  Doctor’s justification for why he/she chose to withhold the information.

The refined Montgomery test places greater emphasis on patient autonomy, requiring doctors to disclose material risks that a reasonable patient in the particular circumstances would consider significant. This marks a deliberate shift away from medical paternalism towards a more patient-centric approach.

Balancing Patient Autonomy and Medical Discretion

The United Kingdom

The UK has arguably seen the most dramatic shift from medical paternalism to patient autonomy. This has been marked by the changing judicial approach from the traditional Bolam test to the Montgomery test. Yet, the recent case of McCulloch has signalled a slight retreat towards medical discretion, particularly in defining what constitutes a “reasonable” alternative treatment. This judicial back-and-forth highlights the UK’s ongoing attempt to reconcile the ethical and legal imperative of respecting patient autonomy with the practical realities of medical decision-making.

A key challenge in the UK’s approach is the lack of statutory guidance on informed consent, leaving the matter largely in the hands of the courts. While Montgomery provided a clear autonomy-based standard, later cases such as McCulloch and Bilal have reintroduced elements of Bolam, creating uncertainty about the precise scope of a doctor’s duty to inform. Unlike jurisdictions such as Australia, where statutory reforms have clarified doctors’ obligations, the UK relies on case law to refine the boundaries between medical discretion and patient rights. This reliance on judicial precedent means that the balance is constantly shifting, depending on how courts interpret the duty of disclosure in individual cases. While this approach allows for flexibility, it has also led to inconsistencies, particularly in defining what constitutes a “reasonable” alternative treatment.

Moreover, while Montgomery emphasises shared decision-making, the UK lacks comprehensive legislation mandating this approach in medical practice. While the Mental Capacity Act 2005 and the Health and Social Care Act 2012 promote patient involvement in healthcare decisions, they do not explicitly define the scope of a doctor’s duty to inform. In contrast, countries such as Australia and Canada have statutory frameworks that reinforce the legal obligation for doctors to engage patients in decision-making. This absence of legislative guidance means that the application of Montgomery and McCulloch remains context-dependent, with different medical professionals potentially interpreting their disclosure duties in varying ways. The UK’s approach thus risks being too reactive, relying on case law rather than providing a proactive statutory framework that could guide medical professionals before disputes arise.

Finally, a critical issue often overlooked in the debate on autonomy versus discretion is how well patients actually understand the information provided. While Montgomery established the duty to disclose material risks, it did not clarify the extent of a doctor’s responsibility in ensuring patient comprehension. One of the fundamental assumptions of Montgomery is that a patient, once informed of all material risks, will be able to make a rational and autonomous decision regarding their medical treatment. However, it did not clarify the extent of a doctor’s responsibility in ensuring patient comprehension. Studies suggest that even when risks are disclosed, patients may misinterpret or fail to appreciate their significance, raising questions about whether autonomy is truly being upheld in practice [26]. In this respect, the UK lags behind jurisdictions such as Singapore, where Hii introduced a requirement that doctors take “reasonable steps” to ensure patients understand the information provided.

Australia

Australia’s legal framework strongly upholds patient autonomy, as evidenced by its broad definition of material risk and rigorous enforcement of informed consent requirements.

In Australia, continuing to give treatment when the patient has clearly refused constitutes assault and battery [27]. If there is evidence that the patient consented orally, that consent can be equally as valid as a written one [28]. This displays the law’s strong emphasis on respecting patient autonomy, further distancing itself from the Bolam test, which traditionally tied a medical practitioner’s liability to the standards accepted within the profession.

As established in Rogers v Whitaker, a risk is deemed material if a reasonable person in similar circumstances would regard it as significant or if a doctor knew or ought to have known that the patient would find it significant, regardless of how minor the risk may be [29].

Nevertheless, Australia’s approach to establishing negligence requires satisfying both factual and legal causation (scope of liability) [30]. The failure to warn patients of material risks can satisfy factual causation under the “But For” test - that is, if the patient would not have undergone the procedure but for the doctor's failure to disclose the risk [31]. However, full causation will not be established if the patient would not have declined treatment because of that specific risk. This principle was illustrated in Wallace v Kam (2013), where a surgeon failed to warn the patient of both neurapraxia (a nerve injury) and paralysis as potential risks of surgery. The patient developed neurapraxia and sued for medical negligence, arguing that he would not have consented to the procedure had he been informed. However, the High Court ruled that while the surgeon had breached his duty to warn, the patient would have accepted the risk of neurapraxia and proceeded with the surgery regardless. The court also determined that the doctor should not be held liable for failing to warn of paralysis, as that risk never materialised [32]. Thus, the court concluded that the failure to warn of the risk of paralysis (which did not occur) was not the legal cause of the neurapraxia. Because the injury would have occurred regardless of the failure to warn about it, it defeats the factual causation under the ‘but for’ test. Therefore, this case highlights that while patient autonomy remains paramount, Australian courts carefully balance it against medical discretion. Doctors must ensure that informed consent is obtained, but liability is only imposed when a failure to disclose materially affects a patient’s decision-making. This ensures that medical judgment is still respected, provided it aligns with reasonable professional standards.

Singapore 

Singapore’s approach to weighing these two competing interests arguably represents the most balanced approach among all three jurisdictions, by effectively reconciling patient autonomy with medical discretion. The modified Montgomery test established in Hii shows a move towards a patient-centric approach, where doctors are required to provide patients with sufficient information to participate in decisions about their medical treatment meaningfully. It was recognised in Hii that patient autonomy in medical ethics is justified by the principle of respect for autonomy, which upholds a patient’s right to make informed decisions about their treatment [33]. However, Singaporean courts have acknowledged the “seismic shift [34]"to a more patient-centric approach in recent years as “the nature of the doctor-patient relationship has evolved together with the level of education and access to knowledge of the ordinary Singaporean [35]”. It was emphasised that there must be a balance between “the doctor’s perspective and the patient’s perspective [36]” and that it should be “a collaborative process involving the doctor and the patient [37]”. The Bolam test was highlighted to give “insufficient regard” to patient autonomy, as it fails to provide them with the “information he reasonably requires in order to make a proper decision as to whether to proceed with the proposed treatment [38]”. Nonetheless, a purely autonomy-driven approach would disregard the inherent information asymmetry between a doctor and a patient. The doctor, with their medical expertise and objectivity, holds a significant informational advantage over the patient, who may be emotionally vulnerable and struggle to fully grasp the medical risks [39]. This necessitates a standard of care that “strikes a balance between the interests of the doctor and the patient [40]”.

Singapore strikes this balance by retaining the Bolam test for “the medical functions of diagnosis and treatment”, but applying the modified 3-stage Montgomery test when “providing advice and information to the patient [41]”. 

The first stage should be approached from the patient’s perspective, as their autonomy requires them to have adequate information to make an informed, consensual decision about their treatment [42]. The standard of materiality must be contextualised considering “the personal circumstances of the patient” and “what a reasonable person in the position of the patient in question would consider material [43]”. This is because what may seem insignificant when assessed by its impact on most people could be significant for individuals in certain circumstances [44]. This approach is similar to Australia’s in Rogers, where the subjective limb only applies when a patient communicates specific information, often through questioning, that alerts the doctor to what is material to their care [45]. While the inquiry may seem "subjective" in considering what the patient deems important, it remains objectively grounded in assessing whether the patient's concerns reasonably led the doctor to conclude the information was “material” to the patient [46]. However, Singapore takes a more subjective approach as it emphasises the context, as the doctor is required to consider the patient's specific circumstances when deciding what information should be disclosed.

Moreover, while Singapore also recognises that ensuring that a patient has “sufficient information” is crucial, the effectiveness of this information depends on the “quality of communication”, as the effectiveness of the information provided depends on whether it is communicated to the patient in a manner understandable to them [47]. This contrasts with Australia’s approach, which focuses on the volume of information disclosed without necessarily considering whether the patient is adequately equipped to process or fully understand it.

However, Singapore’s approach shifts back to considering the doctor’s perspective in relation to the third stage of the test. The court will look for “any reasonable justification why the information, though material and in the doctor’s possession, was nevertheless withheld.” and whether it was sound considering the standards of a “reasonable and competent doctor [48]”. This ensures “an element of professional judgment” plays a role in how information is disclosed [49]. Hii reaffirmed that non-disclosure of material medical information could be justified in three non-exhaustive specific circumstances, including waiver, emergency treatment, and therapeutic privilege. 

First, a patient has the right to waive receiving further information about their treatment, but such a waiver should be expressly stated or clearly inferred, and doctors must ensure the patient fully understands the “seriousness” of their decision [50]. 

Second, in emergency situations where a person faces a threat of death or serious harm, lacks decision-making capacity, and has no suitable substitute decision-maker, the duty to obtain informed consent is suspended under the principle of necessity [51]. In such cases, the urgency of treatment is assessed from a medical perspective, and the Bolam test remains applicable. 

Lastly, therapeutic privilege applies when a doctor reasonably believes that disclosing certain information would cause serious harm to a patient, extending to those with mental capacity but have impaired decision-making, such as patients with anxiety disorders or certain geriatric individuals who may be unduly distressed by medical risks [52]. Although the court should not find a doctor negligent in exceptional cases where withholding information is justified, Montgomery emphasised that therapeutic privilege must not be misused to override a competent patient’s choice solely because the doctor believes it is not in the patient’s best interests [53]. The inquiry remains objective, focusing on whether the patient was genuinely at risk of harm from disclosure or suffered an impairment affecting decision-making, rather than relying on whether some doctors would have invoked the privilege under the Bolam test. This approach contrasts with Australia’s strict duty for doctors to disclose all ‘material risks’ as Singapore adopts a more flexible framework by letting medical professionals have some discretion in managing patient autonomy, especially when patient decision-making may be impaired or when disclosure could lead to serious harm. 

Furthermore, by incorporating a more refined application of therapeutic privilege, Singapore’s approach contrasts with McCulloch in the UK, where doctors have greater ability to exercise discretion without considering patient autonomy to the same extent. The UK’s threshold for withholding information is also higher, as the Bolam test remains applicable to disclosure decisions, which may lead to a more paternalistic approach in certain cases. Here, Singapore, instead introduces an objective inquiry that examines whether a doctor’s decision to withhold information is justified, thus ensuring that patient autonomy is respected.

Singapore has now formally codified the legal test for determining the standard of care in the provision of medical advice through the introduction of Section 37 of the Civil Law Act (Chapter 43). The new statutory test addresses concerns about the uncertainty posed by the prior patient-centric approach by instead adopting a peer professional opinion standard, replacing the previous modified test established in Hii.

Under the new statutory test, a healthcare professional meets the standard of care if

1. Their approach is supported by a respectable body of medical opinion (peer professional opinion), and

2. That opinion is logical, meaning it is reasoned, internally consistent, and supported by the facts.

Information may only be withheld in limited situations, such as emergencies or where the patient waives their right to receive it. The Bolam-Bolitho test continues to apply for diagnosis and treatment decisions.

Policy Implications

The United Kingdom

The landscape of clinical practice has remained largely unchanged following Montgomery, closely mirroring the pre-Montgomery approach in practical terms. However, Montgomery has significantly altered the legal and professional landscape by formalising the patient-centric standard of disclosure, rather than leaving it implied [54].

While similar pre-existing patent-oriented professional duties of disclosure existed under the General Medical Council (GMC) guidelines, Montgomery has elevated their status and enforcement, shifting shared decision-making from a mere professional expectation to a legal necessity for valid consent [55]. Unlike the GMC’s previous advisory stance, where deviations were not necessarily sanctioned, Montgomery ensures that failure to adhere to shared decision-making principles may now have legal consequences.

One challenge that may arise, as noted by the Supreme Court in its decision, is the increase in defensive medical practices. Montgomery may cause doctors to become less concerned with genuine understanding and consent from the patient and more concerned with mitigating the opportunities for litigation. 

Additional burden may also be placed on doctors in the form of longer counselling times [56] with patients and other resources to facilitate the consent process, which may result in low levels of professional morale and high levels of stress in the medical industry.

Australia

The strict disclosure obligations set out in Rogers v Whitaker (1992), requiring medical practitioners to inform patients of all material risks associated with a treatment regardless of whether the risk is commonly disclosed in medical practice, reflect the country’s commitment to ensuring patients are fully informed before making medical decisions.

This obligation may result in higher administrative burdens on doctors. In discharging this duty, doctors may have to document medical consultations more extensively and provide more detailed written materials to ensure comprehensive disclosure.

In response to greater litigation risk resulting from the broadened scope of required disclosure, doctors might over-disclose risks or recommend unnecessary treatments, tests or procedures in order to mitigate their potential liability. This increased risk of defensive medicine may lead to overall higher healthcare costs.

However, Rogers also provides for an exception due to therapeutic privilege [57], where disclosure may be withheld if providing the information would cause significant harm to the patient’s physical or mental well-being, or if the doctor can demonstrate that the patient would have been incapable of making a reasonable decision based on such disclosure. 

Singapore

In Hii, the Court of Appeal emphasised that merely providing information to a patient is insufficient, stating that the information must be conveyed in a manner that aligns with the patient’s ability to comprehend it [58] and make an informed medical decision. Administratively, this entails the duty to account for the individual patient’s unique circumstances and needs when deciding what information to disclose and how to disclose it.

In considering the extent of patient understanding and the degree of sufficiency, doctors will have to take into account a patient’s queries and concerns during a consultation, and tailor their discussions according to the requisite issues, including any additional risks, possible complications or any other information. Hii also emphasises the importance of documenting a doctor’s discussion with their patients diligently.

Although Hii provides for a less stringent test than Montgomery by not imposing an absolute duty of disclosure, which in turn avoids the excessive administrative burden that Australia may face, doctors in Singapore are still obligated to take reasonable steps in enabling the patient to understand the information [59].

Hii has also acknowledged situations when the non-disclosure of material information may be justified under the Therapeutic Privilege Exception. Such exceptions are contingent on the court’s assessment of the doctor’s reasons for non-disclosure, with one example being a patient’s choice not to be informed. However, due to the absence of cases on the subject, the practicality of such an exemption remains uncertain.

Conclusion

While Australia and Singapore have presently moved past a strict application of the Bolam test, the UK, marked by Montgomery’s initial patient-centric stance, subsequently leaned back towards the Bolam test in McCulloch. This highlights the ongoing tension in the UK between respecting patient autonomy and allowing for medical discretion, within a legal framework primarily shaped by case law rather than statute. In contrast, Australia has firmly embraced patient autonomy following Rogers v Whitaker, imposing a strong duty to disclose material risks based on a ‘reasonable patient’ standard. On the other hand, Singapore has adopted a hybrid model through Hii, retaining the Bolam test for diagnosis and treatment while employing a patient-centric approach for advice. This uniquely focuses on patient understanding and justified limitations on disclosure, thus seeking a balance between autonomy and discretion. 

The differing approaches to informed consent in the UK, Australia and Singapore show the dynamic evolution in medical law, with each country shaping its legal framework based on local values and judicial interpretations. As they adapt to new medical and societal changes, perhaps the future of informed consent law will shift towards patient understanding and autonomy being central to the decision-making process, while also accounting for the evolution of medicine.

Bibliography

[1] Bolam v Friern Hospital Management Committee [1957] WLR 582

[2] Ibid, [587] McNair J

[3] Bolitho v City and Hackney Health Authority [1998] AC 232

[4] Ibid, Lord Browne-Wilkinson

[5] Montgomery v Lanarkshire Health Board [2015] AC 1430

[6] McCulloch v Forth Valley Health Board [2023] UKSC 26

[7] Rogers v Whitaker (1992) 67 ALJR 47 

[8] Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38

[9] Civil Law Act 1909 

[10] Montgomery v Lanarkshire Health Board [2015] AC 1430

[11] Ibid, [82]

[12] Ibid, [88]

[13] Ibid

[14] McCulloch v Forth Valley Health Board [2023] UKSC 26

[15] Hunter v Hanley 1955 SC 200

[16] Ibid (n. 13) [56]

[17] Duce v Worcestershire Acute Hospitals NHS Trust [2014] EWCA Civ 249

[18] Kirby M. ‘Patients' rights--why the Australian courts have rejected 'Bolam'’. Journal of Medical Ethics. (1995)

[19] Ibid, 4

[20] Ibid

[21] Ibid

[22] Ibid (n. 7), [16]

[23] Ibid

[24] Irene Lawson, ‘Case Notes: Naxakis v Western General Hospital’ (1999) 3

[25] Ibid (n. 8), [99]

[26] Paul Kinnersley et al., ‘Interventions to Promote Informed Consent for Patients Undergoing Surgical and Other Invasive Healthcare Procedures’ (2013) Cochrane Database of Systematic Reviews. 39-42

[27] ‘Commentary 1: Wolters Kluwer, Australian Torts - Medical negligence and health Commentary’ (20 August 2024) 17-250

[28] Ibid

[29] Ibid (n. 7), [16]

[30] Wrongs Act 1958 (Vic), s 51(1)(a) 

[31] Strong v Woolworths Ltd [2012] HCA 5

[32] Wallace v Kam [2013] HCA 19

[33] Ibid (n. 8), [114]

[34] Ibid (n. 8), [120]

[35] Ibid (n. 8), [119]

[36] Ibid (n. 8), [120]

[37] Ibid (n. 34)

[38] Ibid (n. 8), [122]

[39] Ibid (n. 8), [113]

[40] Ibid (n. 8), [4]

[41] Ibid (n. 8), [99]

[42] Ibid (n. 8), [132]

[43] Ibid (n. 8), [144]

[44] Rob Heywood, ‘Subjectivity in risk disclosure: considering the position of the particular patient’ (2009) Professional Negligence 25(1) 3. 7

[45] Miola v Newhouse (1934) Civ. 8710. [103]

[46] Ibid (n. 8), [105]

[47] Ibid (n. 8), [155]

[48] Ibid (n. 8), [148]

[49] Ibid

[50] Ibid (n. 8), [150]

[51] Ibid (n. 8), [151]

[52] Ibid (n. 8), [152]

[53] Ibid (n. 5), [91]

[54] Holden ACL, ‘The future of failure to warn in dentistry after Montgomery: reflections from Australia.’ British Dental Journal. (2018) 224(1) 13-17

[55] Adshead G, Crepaz-Keay D, Deshpande M, Fulford KWM, Richards V. ‘Montgomery and shared decision-making: implications for good psychiatric practice. Br J Psychiatry.’ (2018) 213(5) 630-632

[56] Harrison N, Hewitt H, Pandya P, Reisel D. ‘How Montgomery is reconfiguring consent in the UK’. Lancet. (2018) 392(10142) 102-104.

[57] Ibid (n. 7), [490]

[58] Ibid (n. 8), [155]

[59] Ibid (n. 8), [154]