Nonetheless, both the body of medical professionals and the courts have their individual roles to play and work. In medical negligence litigation, the 'Bolam' test is cited as the starting point. In depth explanation of the case of Foo Fio Na. 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. The disclosure of risks concerns the individual autonomy of a patient – that is to make an informed decision and give an informed consent. In depth explanation of the case of Foo Fio Na. 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. 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. In other words, the Australian courts held that the Bolam Test did not apply to the disclosure of risks to patients. 1)INTRODUCTION, THE QUESTION & THE ISSUES. Such is the position of law today. 13. 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’. Relevant themes: montgomery v lanarkshire health board, informed consent, bolam test. 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. 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. This item is part of JSTOR collection The test requires doctors to conform to a 'responsible' body of medical opinion. [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 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 medical profession has for a long time been a petri dish for paternalistic practices and attitudes. The test is derived from the case of Bolam v. Friern Hospital Management Committee (1957) . It takes a cross-jurisdictional approach to examine the corresponding legal development in the United Kingdom, Singapore and the Australian states. In this case, the High Court of Australia rejected the Bolam test. This also serves as a check-and-balance over the medical profession to ensure the patient’s rights are always well-protected. 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. The doctor was entitled to inform the patient of all of the risks as any reasonable medical man would have done. never probed before prescribing a penicillin injection.” ‘ Sidaway v Bethlem Royal Hospital Governors 1985. 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. 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 standard of care differs between an ordinary general practitioner and a lay man, as stated in … In a landmark decision, the Court of Appeal has adopted a new legal test to determine whether a doctor has been negligent while dispensing medical advice. However, in 1993, another case emerged from the Commonwealth, this time relating to the disclosure of risks. JSTOR®, the JSTOR logo, JPASS®, Artstor®, Reveal Digital™ and ITHAKA® are registered trademarks of ITHAKA. Mr. Bolam, a voluntary …show more content… The doctor’s … 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. 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. The doctor’s judgment is not to be questioned. This rule is known as the Bolam test, and states that if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent. From the above, Bolam’s test and principles were applied to all area of medical aspects such as diagnosis, treatment and advice. Ong J’s judgment was overturned by the Federal Court but was subsequently upheld by the Privy Council in Chin Keow v Government of Malaysia & Anor [1967] 2 MLJ 45 (by then the Federation of Malaya had become … 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 standard of care was placed in the hands of the medical profession of the same specialisation. On 29th December 2006, the test for medical negligence had been accepted by the Courts in Malaysia . Nonetheless, both the body of medical professionals and the courts have their individual roles to play and work in tandem with each other in order to ensure the best quality of medical care afforded by medical practitioners. The Malaysian courts refer to an English case and an Australian case for different scenarios. This thesis traces the historical development of the law in Malaysia, from the 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. 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. Don’t be afraid to seek help! This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. 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. Medicine is a science that is constantly evolving. The Journal continues to interest lawyers, academics and observers in and outside the common law world. That year, a remarkable milestone was achieved in the area of Medical Negligence in Malaysia where the Federal Court in the landmark decision in Foo Fio Na v Dr. Soo Fook Mun & Anor [2007] 1 MLJ 593 (“Foo Fio Na”) ruled that the Bolam Test in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 is no longer a good law and further made two important rulings as … 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. The Journal covers both domestic and international legal developments. This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. Before going into the Bolam case though, there is a little thing called “standard of care” to talk about. 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. Bolam v Friern Hospital Management Committee: QBD 1957. 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. 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. The Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. Plaintiff underwent operation and there was a risk. All Rights Reserved. 2)BOLAM TEST, BOLITHO TEST & WHITAKER TEST. In Bolam v. Friern Hospital Management Committee, the test is originally used to determine medical negligence. 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. 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. Abstract. 3)JUDICIAL APPROACH & TREND IN MALAYSIA. The Court held the Bolam Test would apply to the former whereas judicial determination applies to the disclosure of risks, as was the test in Rogers v Whitaker. … This further solidified the position of judicial determination of the standards of care instead of the Bolam Test. The HC rejected the Bolam test. Reading Time: 9 minutes Introduction. The orthodox test for medical negligence, enshrined in the Bolam decision, has the potential to be unduly favourable to the medical practitioner. 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 … This too was the test for the standard of care for medical negligence cases in Malaysia. By Dato’ Mah Weng Kwai. 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 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 . 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. 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. Published By: National University of Singapore (Faculty of Law), Read Online (Free) relies on page scans, which are not currently available to screen readers. The Bolam test 1 was endorsed by the Privy Council in the case of Chiu Keow v Government of Malaysia 2 and has since been entrenched in Singapore law pertaining to medical negligence. Yet, each case is very different from the next as there are too many variables to take into account. 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. 4)IMPLICATION TO HEALTH CARE IN MALAYSIA & PROPOSAL FOR REFORM. SJLS is run by the Faculty of Law, National University of Singapore from which it draws its Editorial Committee. This test was applied to determine the doctor's standard of care in relation to the treatment and information given to the patient. Using the words of McNair J, conveniently referred to as the Bolam Test, "The test is the standard of the ordinarily skilled man exercising and professing to have that special skill." This principle was derived from the case of Bolam v Friern Hospital Management Committee . 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. For terms and use, please refer to our Terms and Conditions The Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. 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. In Foo Fio Na v. Dr. Soo Fook Mun [2007] 1 M.L.J. 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 Bolam Test alluded to earlier could well work against a well-meaning engineer who fails to keep abreast with changes in his profession. 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’. The Bolam Test in Malaysia 48. b) Its can be refer to as patient-centric test, while Bolam test and Bolitho test can be referred to as doctor-centric test. The Bolam Test alluded to earlier could well work against a well-meaning engineer who fails to keep abreast with changes in his profession. 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 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. Notwithstanding that, there has been much jurisprudence surrounding medical law – one of which is the standard of care to which we hold a medical practitioner to. 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. Singapore Journal of Legal Studies This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. 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. 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, the plaintiff, John Bolam, was a psychiatric patient suffering depressive illness. 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 . 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. (McNair J.) 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. 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. The penalty for ill-treating a patient is a fine or up to RM10,000 and/or up to 2 years of jail. quality of medical expert witness testimony. Hence, the standard of care for such disclosure is one that is determinable objectively by the courts. Copyright © Richard Wee ChambersAll Rights Reserved. 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 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. Submissions are subject to anonymous peer review by subject specialists within and beyond Singapore. 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.’. Justice McNair in his directions to the jury in the case of Bolam v Friern Hospital … First, doctors need to be better educated . ©2000-2020 ITHAKA. 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. 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. It was a small risk but if it was materialised, could be severe in nature. 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