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Bolam test principle through phases towards a confirmation of the position that a degree of regulation must be retained by profession. In Bolam v Friern Hospital Mangement Committee,19 The question of whether to advise of risk was stated in terms of “a failure to act in accordance with the standards of reasonably competent medical men at the time”. We can found that disclosure of risks was not imposed as a separate legal duty but rather depended upon usual medical practice. Early case law indicated that the question of disclosure of risk was stared to be “not one of law, but one of reasonable medical judgment”.20
The Court drew a clear distinction between the test to be applied as to whether the operation has been done with the necessary skill (the "Bolam" principle applies here)21 and the duty to warn a patient of material risks. What may seem immaterial to skilled medical practitioners because of the unlikelihood of the problem arising (1 in 14,000 is, a very low risk numerically)22 may be material because of the nature of the risk. So The High Court did not follow "Bolam" principle.
6. Analyze Sections 5 O and 5P of the Civil Liability Act 2002 (NSW) change the principles of law set out in the case.
5o of Civil Liability Act is that Standard of care for professionals. A medical practitioner is not negligent if the treatment provided was in accordance with an opinion widely held by a significant number of respected practitioners in the field, unless the court considers that the opinion was irrational. Really, section 5O restores a modified version of the Bolam test to medical negligence law in Australia.23
But in Rogers v Whitaker, 24 the High Court is to determine the appropriate standard of care for the medical profession. The High Court also stressed that a doctor has a duty to warn respondent of a material risk of the proposed treatment. The Civil Liability Act does not completely restore the Bolam principle as section 5P precludes the application of the standard of care in section 5O to the duty to warn of risk.25 Accordingly, the standard of care to be applied when warning of risk is to be determined by the courts rather than peer professional opinion, thus preserving the rule in Rogers v Whitaker. 26 However, section 5O applies the standard of care to all professionals, not just those in the medical field.
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