The application of the professional practice standard as a disclosure rule in law has been criticised for many years prior to the decision of the Supreme Court in Montgomery. It had been questioned whether a customary standard of disclosure actually exists. 1

If the Bolam test is permitted to continue as part of the legal test for disclosure of information to patients would this not permit negligent care if relevant professionals genuinely offer the same inferior information to patients? 2

The principle objection to the use of the Bolam test in this area is that it undermines individual autonomy. Bolam may apply to medical judgements. Decisions for or against medical care being non medical should be reserved to the patient alone. 3

The medical practice standard assumes that doctors have sufficient expertise to know what information is in the best interests of their patients. What reliable data has ever existed to support this contention? 4

Many patients place a high value on the disclosure of information and support a disclosure standard requiring more detailed information than doctors typically give. What data supports the fact additional information is harmful to patients? 5

In Montgomery the Supreme Court at last recognised that disclosure of information to patients should not be judged by what the medical profession decides patients should be told. The filtering of information by the profession is no longer permissible. 6

Professor Kennedy in his article concluded that the professional standard of disclosure unreasonably subordinates the interest of the patient to the whim of the medical community. 6

The Australian courts recognised that it would be illogical to hold that the amount of information provided to patients could be determined by the medical profession alone or for that matter the medical profession as a body (Bolam test). Rogers v Whitaker