Siti Norma Yaakob FCJ:

[1] The question of law that is posed to us in this appeal is couched in the following words.

Whether the "BolamTest" as enunciated in Bolam v. FriernHospital Management Committee [1957] 2 All ER 118 in the area of medical negligence should apply in relation to all aspects of medical negligence.

[2] To appreciate the "Bolam Test" which is the touchstone of liability for medical negligence in England, it is necessary that we first consider the facts of the case itself.

[3] The plaintiff in Bolam's case, one John Hector Bolam, a salesman, was admitted to Friern Hospital suffering from the after effects of a mental illness of the depressive type. He was examined by the consultant psychiatrist attached to the hospital and was advised to undergo electro-convulsive therapy which was carried out by placing electrodes on the head to allow an electric current from a machine to pass through the brain. One of the results of the treatment was to cause convulsion in the nature of a fit. The consultant psychiatrist did not warn Bolam of the risks involved, one of which was the risk of fracture.

[4] Bolam signed a form consenting to the treatment and nothing untoward happened to him when he received the treatment for the first time. However on the second occasion the treatment was administered by Dr. C. Allfrey, a senior registrar at the hospital. An initial shock was passed through Bolam's brain for approximately one second and was followed within approximately four seconds by a succession of five momentary shocks administered for the purpose of damping the amplitude of the jerking movements of Bolam's body. No further shocks were administered and the convulsion was not unusually violent. The voltage of the current was 150 volts, the frequency fifty cycles per second.

[5] During this treatment Bolam lay in a supine position with a pillow placed under his back and his lower jaw was supported by a mouth gag. Otherwise he was not restrained in any way, although a male nurse stood at each side of him in case he should fall from his bed. No relaxant drugs were administered to Bolam prior to the treatment.

[6] In the course of this treatment, Bolam sustained severe physical injuries consisting in the dislocation of both hip joints with fractures of the pelvis on each side which were caused by the head of the femur on each side being driven through the acetabulum or cup of the pelvis.

[7] In claiming damages for his injuries against the management of the Hospital, Bolam contended that the hospital was vicariously negligent in permitting Dr. Allfrey to administer electro-convulsive therapy without the previous administration of a relaxant drug which would have excluded the risk of fracture altogether or without restaining his convulsive movements by manual control and in failing to warn him of the risk he was taking in consenting to have the treatment.

[8] The medical evidence at the trial showed that competent doctors held divergent views on the desirability of using relaxant drugs and restraining the patient's body by manual control and also on the question of warning a patient of the risks of electro-convulsive therapy. The other medical evidence that was most significant was that the risk of fracture was 1 in 10,000.

[9] In the course of his summing up to the jury, the trial judge, McNair J, made the following remarks on the standard of proof in a medical negligence suit.

But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.

[10] Later when analyzing that standard of proof the learned judge made the following conclusive statement regarding a doctor's duty of care.

A doctor is not guilty of negligence if he has act