By Dr. Raphael Nyarkotey Obu, RND, PhD.
Shakoor v. Situ (t/a Eternal Health Co)  is a first instance case in English tort law on the standard of care appropriate for an alternative medicine practitioner. Its controversial ruling elaborates on the “responsible body of medical men” test from Bolam v. Friern Hospital Management Committee.
The Old Test (the “Bolam” Test)
According to the Bolam test, a Medical doctor would not be found negligent if he had acted in accordance with a practice accepted as proper by a responsible body of medical practitioners. Further, in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital  AC 871, it was decided that the Bolam test should be applied in deciding whether a doctor is negligent in relation to disclosure of information for the purpose of seeking consent from a patient. The “Bolam test” is no longer applicable in UK. In this article, I will explore the implications of Montgomery on the new standard for the duty of disclosure owed by doctors to their patients.
The New UK approach – Montgomery (2015)
In Montgomery, Mrs. Montgomery was a tiny woman with diabetes. Women who suffer from diabetes are likely to have larger babies. In particular, they have an increased risk of 9-10 per cent of shoulder dystocia, meaning that during vaginal delivery the baby’s shoulders would be too wide to pass through the birth canal. However, Mrs. Montgomery was not informed of the risk of shoulder dystocia. Sadly, during delivery, shoulder dystocia did occur and her baby was deprived of oxygen, resulting in severe brain injury.
Mrs. Montgomery brought a claim against Lanarkshire Health Board, alleging that she should have been advised of the risk of shoulder dystocia associated with vaginal delivery, and the alternative option of delivery by caesarean section ought to have been offered.
The UK Supreme Court’s decision in applying the Bolam test, the lower courts rejected Mrs. Montgomery’s claim. Mrs. Montgomery appealed to the UK Supreme Court, which eventually ruled that Mrs. Montgomery should have been warned of the risk of shoulder dystocia and provided with the alternative of a caesarean section.
The Supreme Court adopted a more “patient-centered” test. Instead of the idea of “doctors know the best”, leaving the medical profession to decide on what and how much should be disclosed to patients, the court acknowledged that a doctor has a duty to disclose to the patient any material risks involved in any recommended treatments, and any alternative treatments. In deciding what amounts to “material risks”, the appropriate consideration is not only from the doctor’s perspective, but also whether a reasonable person in the patient’s position would be likely to attach significance to the risk.
As a result, the long-standing application of the Bolam test no longer applies in UK for cases that involve negligence in disclosure of risk. However, the Bolam test will continue to apply in negligence cases of diagnosis, treatment and the other aspects of medical care.
Change in Hong Kong
In Hong Kong, following Sidaway, the Bolam test is applicable and therefore, only the views of the medical profession are considered in determining whether the medical practitioners are negligent in disclosure of risk.
In recent years, patients’ groups have advocated their demand for more thorough disclosure of information and proper communications between doctors and patients. To better reflect the change of values of society, the Medical Council of Hong Kong had revised its Code of Professional Conduct (the “Code”). In particular, section 2.10.2 of the Code has been amended to include the consideration of the individuality of each and every patient in the provision of medical service and communication between doctors and patients.
If the UK Supreme Court’s decision in Montgomery is followed in Hong Kong, the Bolam test will no longer apply in deciding whether the medical practitioners are negligent in disclosure of risk and consideration must be given from the perspective of the particular patient
The Case Apply to Herbal, homeopathy and Alternative Practitioners.
Thelocus classicus is Shakoor v. Situ (t/a Eternal Health Co) . In this case, the plaintiff, Mr Abdul Shakoor went to a Nottingham based Chinese herbalist, which traded as the “Eternal Health Co.” Mr Kang Situ, the herbalist had trained for five years in China, gaining both a traditional “medicine” and “modern” medical qualifications. His grade was “excellent”. He had no British professional medical qualifications. In November 1994, Mr Situ prescribed a course of Chinese herbal remedies for Mr Shakoor’s benign lipomata, a skin condition, which produces fatty tissue that lies just below the skin, but causes no risk to health. There is no treatment in the UK, except surgical removal. MrShakoor was given a mix of twelve herbs in ten sachets which were to be taken on alternate days after a meal. After nine doses Mr Shakoor got ill, nauseous, his eyes went yellow and he suffered heartburn. He vomited, and had abdominal pain. He went to hospital, and was diagnosed as having “probably hepatitis A”. His liver failed, he had hepatic necrosis. He had an operation, but he died in January 1995. In the post-mortem, his liver was found to contain Bai Xian Pi, or dictamnusdasycarpus, which some evidence suggested could be hepatotoxic.
Bernard Livesey QC found that there was no way to establish that the herbs could be known to contain toxic substances. Yet on the balance of probabilities, the herbal concoction was the cause of death. It was held that Mr Shakoor had an “idiosyncratic” reaction, a rare and unlucky allergic response to the herbal mix. He noted,
“unlike some alternative therapies, TCHM has a long and distinguished history; it has an oral tradition extending back some 4,000 years or more and a written tradition extending back some 2,000 years. It is practiced alongside modern medicine in China and accordingly, I am told, a larger proportion of the world’s population is treated by it than is treated by modern or western medicine. However, I learned little during the course of this trial as to the extent of current teaching, research, monitoring and verification of its practices in China or elsewhere.”
He considered the argument that an herbalist should be held to the same standard as a normal NHS doctor, but disagreed.
“The Chinese herbalist, for example, does not hold himself out as a practitioner of orthodox medicine. More particularly, the patient has usually had the choice of going to an orthodox practitioner but has rejected him in favour of the alternative practitioner for reasons personal and best known to himself and almost certainly at some personal financial cost. Those reasons may include a passionate belief in the superiority of the alternative therapy or a fear of surgery or of reliance (perhaps dependence) on orthodox chemical medications which may have known undesirable side effects either short- or long-term or both.
So long, said Livesey QC, as the herbalist complies with the UK’s laws, does not prescribe prohibited or regulated substances under the Pharmacy and Poisons Act 1933, the Medicines Act 1968 or the Abortion Act 1967, so long as the herbalist takes steps to keep abreast of pertinent information in the “orthodox” medical journals, it is appropriate to hold his standard of care to that of what a reasonable herbalist would do. In this case the prescription had not been inappropriate for a reasonable herbalist, and accordingly Mr Situ of the Eternal Health Co. was not liable for the death of Mr Shakoor.
DISCLAIMER : This post is for enlightenment purposes only and should not be used as a replacement for professional legal advice.
Dr. Raphael Nyarkotey Obu, PhD, Is an honorary Professor of Naturopathic Medicine with research interest in Naturopathic & Holistic Urology, Vinnytsia State Pedagogical University, Ukraine. President of Nyarkotey College of Holistic Medicine- Formulator of FDA approved Men’s Formula for Prostate Health, Women’s Formula for wellness & Nyarkotey Tea for cardiovascular Health. 0241083423 or 0541234556. The author also is currently pursing LLB Law/MBA concurrently and his interest is in medical Law & alternative medicine.