In 2006 the highest Malaysian court, the Federal Court, held in Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593 (hereafter Foo Fio Na) that the Bolam test is not relevant in ‘all aspects of medical negligence cases’. The standard of care differs between an ordinary general practitioner and a lay man, as stated in … 479 {'Rogers'). The English case, Bolam v Friern Hospital gave us the Bolam test, and the Australian case, Rogers v Whitaker, has it’s own set of criteria as well. 19 The test is suited for these aspects as it recognises that doctors possess expert knowledge on medical matters. Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said. The Bolam test which demonstrates that a medical practitioner is incapable of negligence if his actions are certified as suitable by a ‘responsible body of medical opinion’ enhances this impression. This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. The famous Bolam Test established in the case of Bolam v Friern Hospital Management Committee 2 All ER 118 has no relevance to the duty and standard of care of a medical practitioner in providing advice to a patient on the inherent and material risks of the proposed treatment. Keywords: Bolam test, expert evidence, medical negligence, litigation, doctors, course of treatment, diagnosis INTRODUCTION In medical negligence litigation, a key step is for the claimant to prove the doctor failed to meet the required standard of care. III. Nonetheless, both the body of medical professionals and the courts have their individual roles to play and work. quality of medical expert witness testimony. 479 ('Rogers'). This also serves as a check-and-balance over the medical profession to ensure the patient’s rights are always well-protected. By Dato’ Mah Weng Kwai. The Bolam Test, at the end of the day, must still satisfy an additional test – it must withstand logical analysis and common sense; which again falls within the purview of the courts. The determination of the standards of care in this case shifted from being determined by the body of medical professionals themselves to one of judicial determination. The Journal continues to interest lawyers, academics and observers in and outside the common law world. The test for medical negligence, set out in Bolam v Friern Hospital Management Committee4(“Bolam”), to be elaborated upon later, has long been criticised for perpetuating medical paternalism as courts routinely deferred to medical opinion in determining the standard of In the well-known Malaysian case of Foo Fio Na v Dr. Soo Fook Mun & Anor [2007] 1 MLJ 593, the Federal Court, on 29/12/06, in its judgement declared inter alia, that the Bolam Test which is often used as the ground in determining the standard of care in regards to matters on medical negligence in Malaysia is no longer suitable to be applied. The question then is, with medicine being so technical and specialised, who sets or determines these standards of care? Reading Time: 9 minutes Introduction. (3) Practically, the Bolam test means that while the law imposes a duty of care, the standard of care owed by a doctor to a patient is left to the medical fraternity (ie, the "practice accepted as proper by a responsible body of medical men skilled in that particular art"). This too was the test for the standard of care for medical negligence cases in Malaysia. However, it is not uncommon for doctors to differ on medical diagnosis and treatments and often times, there is no saying which medical opinion is right and which is wrong. Essentially, the Bolam-Bolitho test laid down a physician-centric approach, where emphasis is placed on peer review to determine whether a doctor’s conduct had fallen short of such standard. Relevant themes: montgomery v lanarkshire health board, informed consent, bolam test. ©2000-2020 ITHAKA. This test was applied to determine the doctor's standard of care in relation to the treatment and information given to the patient. CONTENTS 24. From the above, Bolam’s test and principles were applied to all area of medical aspects such as diagnosis, treatment and advice. With a personal account, you can read up to 100 articles each month for free. Bolam v Friern Hospital Management Committee (1968) 2 MLJ 271 [1967] 2 MLJ 45 The writer emphasised on the use of the intrakota bus because in Malaysia, it is the most common mode of transport as opposed to the omnibus in England. Singapore, as an independent legal system founded on the English legal system, continues to draw guidance from the common law authorities of leading Commonwealth countries, including England, Australia and Canada, and sometimes, the USA.The Journal publishes articles on private and public international law as well as comparative law. In depth explanation of the case of Foo Fio Na. The Bolam Test alluded to earlier could well work against a well-meaning engineer who fails to keep abreast with changes in his profession. Here, the patient is a passive participant that provides information and received treatment in accordance with the directions of the doctor. Before going into the Bolam case though, there is a little thing called “standard of care” to talk about. Bolam v Friern Hospital Management Committee: QBD 1957. In Foo Fio Na v. Dr. Soo Fook Mun [2007] 1 M.L.J. It features topics with theoretical or practical appeal or a mixture of both. The Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. Using the words of McNair J, conveniently referred to as the Bolam Test [3], ... (1982) MLJ and Elizabeth Choo v Government of Malaysia (1968) 2 MLJ 271. The Bolam-Bolitho test was retained for diagnosis and treatment. 13. The Bolam test was deemed to confer undue deference to the medical profession due to the courts’ reluctance to define the term, ‘a responsible body of medical opinion’. In determining the standards of care as such, it is only right that it be determined by medical professionals with the same specialisation or expertise. Relying on that direction which is now accepted as the Bolam test or Bolam principle and the divergent medical evidence, the jury found that the hospital was not … Bolam was … This does not, however, mean that the medical profession has free rein to determine the standards of care for diagnosis and treatments at their absolute discretion. Justice McNair in his directions to the jury in the case of Bolam v Friern Hospital … … This principle was derived from the case of Bolam v Friern Hospital Management Committee . Taking that into account with the vast diversity in medicine, it is very difficult to establish legal principles to guide and govern the medical profession. The medical profession has for a long time been a petri dish for paternalistic practices and attitudes. 2)BOLAM TEST, BOLITHO TEST & WHITAKER TEST. 11 Brazier and Miola refer to a process of ‘Bolamisation ’ 12 whereby the courts abrogated responsibility for ethical issues and lacunae in the law into the hands of doctors. (McNair J.) [Bolam], This test is two-fold: first, in determining the standard of care to be followed by medical practitioners, "the test is the standard of the ordinary skilled man exercising and professing to have that special skill", and second, the medical practitioner "is not guilty of negligence if he has acted It was generally known as the Bolam Test. Surgeon did not specifically inform her of this risk. In depth explanation of the case of Foo Fio Na. Further, the Supreme Court recognised that lower courts had to some degree departed from the Bolam test in relation to the advice given by doctors to their patients. test in Malaysia, there is still room for . b) Its can be refer to as patient-centric test, while Bolam test and Bolitho test can be referred to as doctor-centric test. JSTOR®, the JSTOR logo, JPASS®, Artstor®, Reveal Digital™ and ITHAKA® are registered trademarks of ITHAKA. In 2006 the highest Malaysian court, the Federal Court, held in Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593 (hereafter Foo Fio Na) that the Bolam test is not relevant in ‘all aspects of medical negligence cases.’. Prior to 29/12/06 the test for medical negligence accepted by the Courts in Malaysia was generally known as the Bolam Test or the Bolam Principle. The turning point in Malaysia’s legal stand pertaining to medical negligence was established when the Whitaker test was first applied in Malaysia in Kamalam a/p Raman & Ors v Eastern Plantation Agency & Anor, 21 in which Richard Talalla J departed from the Bolam test and held that a judge is not bound by the Bolam principle, and instead adopted the test in Rogers v Whitaker. Affirming the demise of the antiquated Bolam-Bolitho test in relation to pre-treatment advice, this decision also adds Singapore to a growing list of countries which have embraced the concept of patient autonomy. © 1995 National University of Singapore (Faculty of Law) This tendency will be criticised as the delegation of a judicial responsibility, a delegation which is particularly inappropriate when the matters delegated to medical opinion fall outside medical competence. Indeed, it has been cited by leading common law courts such as the House of Lords, the Supreme Court of Canada, the High Court of Australia, the High Court of Malaysia and the Supreme Court of Singapore. JSTOR is part of ITHAKA, a not-for-profit organization helping the academic community use digital technologies to preserve the scholarly record and to advance research and teaching in sustainable ways. Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. Abstract. The test requires doctors to conform to a 'responsible' body of medical opinion. Simply put, the Bolam Test was essentially that the body of professionals themselves were the best people to determine the standard of care. In Bolam v. Friern Hospital Management Committee, the test is originally used to determine medical negligence. Prior to 29/12/06 the test for medical negligence accepted by the Courts in Malaysia was generally known as the Bolam Test or the Bolam Principle. 1)INTRODUCTION, THE QUESTION & THE ISSUES. The question that arose was whether, in determining the standards of care pertaining to a medical procedure on which a judge has no expertise in, would this still be subject to judicial determination or should the right approach be the Bolam Test? Copyright © Richard Wee ChambersAll Rights Reserved. To access this article, please, National University of Singapore (Faculty of Law), Access everything in the JPASS collection, Download up to 10 article PDFs to save and keep, Download up to 120 article PDFs to save and keep. The disclosure of risks concerns the individual autonomy of a patient – that is to make an informed decision and give an informed consent. This legal conundrum was put to rest in the case of Zulhasnimar Hasan Basri & Anor v. Dr Kuppu Velumani P & Ors in which the Federal Court made a distinction between diagnosis and treatment, and the disclosure of risks. The HC rejected the Bolam test. Before Bolitho case, the first dent to the Bolam’s test was a dissenting judgment by Lord Scarman in the case of Sideway v Bethlem Royal Hospital Governors. Such is the position of law today. Prior to 29/12/06 the test for medical negligence accepted by the Courts in Malaysia was generally known as the Bolam Test or the BolamPrinciple. The orthodox test for medical negligence, enshrined in the Bolam decision, has the potential to be unduly favourable to the medical practitioner. THE MODIFIED MONTGOMERY TEST. The doctor’s judgment is not to be questioned. Prior to 29/12/06 the test for medical negligence accepted by the Courts in Malaysia was generally known as the Bolam Test or the Bolam Principle. However, in 1993, another case emerged from the Commonwealth, this time relating to the disclosure of risks. The Federal Court, in answering the leave question aforementioned, looked into the development of the Bolam test in Malaysia, as propounded in Bolam v Friern Management Committee. Surgical procedures that were thought impossible decades ago today can be performed with as minimal invasion to the body as possible. 593 ('Foo Fio Na'), the Federal Court of Malaysia rejected the Bolam test in duty of disclosure of risks cases and endorsed the patient-centered approach in Rogers v. Whitaker (1992) 175 C.L.R. Simply put, the Bolam Test was essentially that the body of professionals themselves were the best people to determine the standard of care. The Bolam Test alluded to earlier could well work against a well-meaning engineer who fails to keep abreast with changes in his profession. It must be noted that while the Federal Court did not reject either of the tests, the court held that the ultimate consideration has to be whether or not a doctor had acted reasonably and logically. In Bolam, the plaintiff, John Bolam, was a psychiatric patient suffering depressive illness. 3)JUDICIAL APPROACH & TREND IN MALAYSIA. The doctor knows best. The "Bolam test", as it has come to be known, was approved by the Privy Council in Chin Keow v Government of Malaysia,4 Lord Edmund Davies in Whitehouse v Jordan,5 and the House of Lords in Maynard v West Midlands RH A.6 In Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital (a case considered in Part III) The test is derived from the case of Bolam v. Friern Hospital Management Committee (1957) . This further solidified the position of judicial determination of the standards of care instead of the Bolam Test. Therefore, the application of the Bolam Test in medical negligence cases would be that the medical practitioners themselves would know better the standard of care required of a medical practitioner as compared to judges who are not medically trained. The doctor-centric approach it engenders is particularly troubling with respect to the duty to inform and does not bode well for a healthy balance in the doctor-patient relationship. This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. The Bolam test may be a reminder of the old days of medical paternalism but it remains an enduring comparator in clinical negligence cases when it … improvement especially regarding the . In this case, the High Court of Australia rejected the Bolam test. These two conflicting tests were considered in Malaysia in the Federal Court case of Foo Fio Na v. Dr Soo Fook Mun & Anor in which the court had to determine which of the two tests were to apply in Malaysian medical negligence cases. The standard of care expected of a doctor In other words, the Australian courts held that the Bolam Test did not apply to the disclosure of risks to patients. The recent Court of Appeal decision in Hii Chii Kok v Ooi Peng Jin London Lucien (“Hii Chii Kok”) has been a long time coming. Bolam v Friern Hospital Management Committee 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals such as doctors. Assume for a moment that a significant number of engineers have migrated to a novel technique, leaving only a small … In Malaysia, the Bolam test was first applied in 1964 by Ong J in Chin Keow v Government of the Federation of Malaya & Anor [1964] 30 MLJ 322 . It was a small risk but if it was materialised, could be severe in nature. In Rogers v Whitaker, the Australian courts rejected the notion that a doctor could not be found negligent in warning a patient so long as the doctor acted within the purview of common practice. Assume for a moment that a significant number of engineers have migrated to a novel technique, leaving only a small group of engineers still adhering to an outmoded practice. The doctor was entitled to inform the patient of all of the risks as any reasonable medical man would have done. Professional to use Skilled Persons Ordinary Care . Prior to 29/12/06 the test for medical negligence accepted by the Courts in Malaysia was generally known as the Bolam Test or the BolamPrinciple. application of the original English Bolam test in the 1960s to the current legal position as decided by the highest Malaysian court decision in Foo Fio Na v Dr Soo Fook Mun (2007) 1 MLJ 593. First, doctors need to be better educated . According to the Bolam test, laid down in the case of Bolam v Friern Hospital Management Committee ... Other jurisdictions such as Australia 16 and Malaysia 17 have also adopted a ‘prudent patient’ approach to risk disclosure. Swoboda has described ‘The deep ossification of the Bolam test in the common law’. The penalty for ill-treating a patient is a fine or up to RM10,000 and/or up to 2 years of jail. Bolam Rules in Singapore and Malaysia – Revisited The classic Bolam test for medical negligence, controversial for its doctor-centric approach, has long been under attack when applied to a particular aspect of the doctor’s duty, namely the duty to inform. Don’t be afraid to seek help! This item is part of JSTOR collection It takes a cross-jurisdictional approach to examine the corresponding legal development in the United Kingdom, Singapore and the Australian states. The Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. Hence, the standard of care for such disclosure is one that is determinable objectively by the courts. Plaintiff underwent operation and there was a risk. T This has thus far attracted criticism as to the deference such a … A contentious issue in the law of medical negligence in Malaysia is the standard of care that is expected of doctors in the spheres of diagnosis and treatment. Negligence was alleged against a doctor. THE BOLAM PRINCIPLE The test to determine what is the standard of care demanded of a doctor was established by McNair J. in Bolam v Friern Hospital Management Committee, which subsequently became known as the Bolam principle. The Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. This is where the Bolam Test comes in, and is used as a standard to determine if the a patient has been mistreated or not. Test alluded to earlier could well work against a well-meaning engineer who fails to keep abreast with changes in profession. Risks to patients Courts held that the body of professionals themselves were the best people determine. 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