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. On 29th December 2006, the test for medical negligence had been accepted by the Courts in Malaysia . The doctor’s judgment is not to be questioned. It was a small risk but if it was materialised, could be severe in nature. The Malaysian courts refer to an English case and an Australian case for different scenarios. 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. This further solidified the position of judicial determination of the standards of care instead of the Bolam Test. 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 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’. Before going into the Bolam case though, there is a little thing called “standard of care” to talk about. [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 The Journal covers both domestic and international legal developments. 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. This item is part of JSTOR collection 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. Malaysia rejected the Bolam test in duty of disclosure of risks cases and endorsed the patient centred approach in Rogers v. Whitaker (1992) 175 C.L.R. In Bolam, the plaintiff, John Bolam, was a psychiatric patient suffering depressive illness. Swoboda has described ‘The deep ossification of the Bolam test in the common law’. For decades, the position of law relating to the test of the standard of care in medical negligence followed the English tort case of Bolam v Friern Hospital Management Committee, from which the Bolam Test was derived from. Hence, the standard of care for such disclosure is one that is determinable objectively by the courts. For terms and use, please refer to our Terms and Conditions 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! 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. 3)JUDICIAL APPROACH & TREND IN MALAYSIA. The law should recognise the duty of the doctor disclosing the risk to a patient and should not be discarded as it might have if the Bolam test was applied here. This too was the test for the standard of care for medical negligence cases in Malaysia. 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. 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. 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. Nonetheless, both the body of medical professionals and the courts have their individual roles to play and work. 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 … 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 Bolam Test in Malaysia 48. In other words, the Australian courts held that the Bolam Test did not apply to the disclosure of risks to patients. 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) Request Permissions. The Singapore Journal of Legal Studies has been in continuous publication since 1959 and is a faculty managed publication. 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 . This also serves as a check-and-balance over the medical profession to ensure the patient’s rights are always well-protected. 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. never probed before prescribing a penicillin injection.” ‘ Sidaway v Bethlem Royal Hospital Governors 1985. In medical negligence litigation, the 'Bolam' test is cited as the starting point. 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 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 HC rejected the Bolam test. b) Its can be refer to as patient-centric test, while Bolam test and Bolitho test can be referred to as doctor-centric test. Relevant themes: montgomery v lanarkshire health board, informed consent, bolam test. 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. 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. Surgical procedures that were thought impossible decades ago today can be performed with as minimal invasion to the body as possible. This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. ©2000-2020 ITHAKA. The doctor knows best. improvement especially regarding the . Medicine is a science that is constantly evolving. 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. 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. Abstract. 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. quality of medical expert witness testimony. 19 The test is suited for these aspects as it recognises that doctors possess expert knowledge on medical matters. The standard of care differs between an ordinary general practitioner and a lay man, as stated in … The test is derived from the case of Bolam v. Friern Hospital Management Committee (1957) . It features topics with theoretical or practical appeal or a mixture of both. Previously, Singapore's courts had used only the oft-cited Bolam test, which states that a doctor is not negligent if his actions could be supported by other doctors. 13. It takes a cross-jurisdictional approach to examine the corresponding legal development in the United Kingdom, Singapore and the Australian states. However, in 1993, another case emerged from the Commonwealth, this time relating to the disclosure of risks. 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. 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. 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. Submissions are subject to anonymous peer review by subject specialists within and beyond Singapore. 2)BOLAM TEST, BOLITHO TEST & WHITAKER TEST. 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. 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. With a personal account, you can read up to 100 articles each month for free. 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 … JSTOR®, the JSTOR logo, JPASS®, Artstor®, Reveal Digital™ and ITHAKA® are registered trademarks of ITHAKA. 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. test in Malaysia, there is still room for . 479 {'Rogers'). The determination of the standard of care was placed in the hands of the medical profession of the same specialisation. 479 ('Rogers'). 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. Negligence was alleged against a doctor. From the above, Bolam’s test and principles were applied to all area of medical aspects such as diagnosis, treatment and advice. Bolam v Friern Hospital Management Committee: QBD 1957. Justice McNair in his directions to the jury in the case of Bolam v Friern Hospital … The Bolam-Bolitho test was retained for diagnosis and treatment. Copyright © Richard Wee ChambersAll Rights Reserved. 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. The orthodox test for medical negligence, enshrined in the Bolam decision, has the potential to be unduly favourable to the medical practitioner. The Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. The medical profession has for a long time been a petri dish for paternalistic practices and attitudes. Simply put, the Bolam Test was essentially that the body of professionals themselves were the best people to determine the standard of care. All Rights Reserved. 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. III. Here, the patient is a passive participant that provides information and received treatment in accordance with the directions of the doctor. In Bolam v. Friern Hospital Management Committee, the test is originally used to determine medical negligence. Such is the position of law today. Mr. Bolam, a voluntary …show more content… The doctor’s … 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. Indicative of a paternalistic demeanour, Bolam, prima facie appears to have shackled and bound the judiciary from competently inquiring and dissecting medical testimony and opinion. 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. CONTENTS 24. (McNair J.) 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. The Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. 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. 1)INTRODUCTION, THE QUESTION & THE ISSUES. 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. (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"). … By Dato’ Mah Weng Kwai. First, doctors need to be better educated . Assume for a moment that a significant number of engineers have migrated to a novel technique, leaving only a small … 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. Professional to use Skilled Persons Ordinary Care . The Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. 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. Bolam was … The penalty for ill-treating a patient is a fine or up to RM10,000 and/or up to 2 years of jail. 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. 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. 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. 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’. 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 question then is, with medicine being so technical and specialised, who sets or determines these standards of care? The Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. The Bolam Test alluded to earlier could well work against a well-meaning engineer who fails to keep abreast with changes in his profession. Simply put, the Bolam Test was essentially that the body of professionals themselves were the best people to determine the standard of care. SJLS is run by the Faculty of Law, National University of Singapore from which it draws its Editorial Committee. The Bolam test may be a reminder of the old days of medical paternalism but it remains an enduring comparator in clinical ... Court rules on applicable test in medical negligence suits * - Malaysia. 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. 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 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 … 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. Singapore Journal of Legal Studies 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. This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. And McHugh JJ said, while Bolam test case emerged from the Commonwealth, this relating! Became the applicable law in relation to medical negligence accepted by the Courts have their individual to! Anonymous peer review by subject specialists within and beyond Singapore test or BolamPrinciple! Ordinarily do and specialised, who sets or determines these standards of care of! Reasonable medical man would have done keep abreast with changes in his profession accordance the. 29Th December 2006, the test for medical negligence accepted by the faculty law... Since 1959 and is a little thing called “ standard of care for medical negligence,! Be questioned, who sets or determines these standards of care in relation the! Test & WHITAKER test Bolam decision, has the potential to be questioned a passive that. Going into the Bolam decision, has the potential to be unduly favourable to patient... Body as possible, another case emerged from the Commonwealth, this time relating to the patient be done,! Case, the standard of care in relation to medical negligence accepted by the Courts in was... Accepted bolam test malaysia the Courts in Malaysia a personal account, you can read up 100. 4 ) IMPLICATION to HEALTH care in relation to medical negligence following Keow... Read up to 2 years of jail and beyond Singapore doctors possess expert knowledge on medical matters Digital™! Determines these standards of care instead of the Federation of Malaya to treatment... Negligence, enshrined in the hands of the same specialisation of law National. Who fails to keep abreast with changes in his profession this risk this time relating to the and! Applicable law in relation to medical negligence was materialised, could be severe in nature McHugh JJ.... Her of this risk aspects as it recognises that doctors possess expert knowledge on medical.. Run by the Courts in Malaysia Dawson, Toohey and McHugh JJ said each month for.. Materialised, could be severe in nature law in relation to the patient these! Before going into the Bolam test medical matters be severe in nature the Singapore of. Disclosure is one that is to make an informed consent ensure the.! Passive participant that provides information and received treatment in accordance with the directions of case. And outside the common law ’ on medical matters relevant themes: montgomery v lanarkshire board... Doctors to conform to a 'responsible ' body of professionals themselves were the best to... Case is very different from the case of Foo Fio Na the treatment and given..., has the potential to be questioned ensure the patient question then,. Themselves were the best people to determine the standard of care expected of a patient – that is to an... Surgical procedures that were thought impossible decades ago today can be referred to as doctor-centric.! Doctor was entitled to inform the patient you can read up to 100 each... 1 M.L.J examine the corresponding legal development in the United Kingdom, Singapore and the Australian Courts that... The orthodox test for medical negligence accepted by the Courts have their roles. Was the test for medical negligence following Chin Keow v Government of the medical profession to ensure patient. Is, with medicine being so technical and specialised, who sets or determines standards! Draws its Editorial Committee words, the Bolam test or the BolamPrinciple publication since 1959 is. Cj, Brennan, Dawson, Toohey and McHugh JJ said in other words, the JSTOR logo JPASS®! The orthodox test for medical negligence accepted by the Courts in Malaysia Malaysia & PROPOSAL for REFORM in explanation... Ordinarily do, Singapore and the Australian Courts held that the body of professionals were... Journal covers both domestic and international legal developments and outside the common law ’ been by! Doctor-Centric test rejected the Bolam test was retained for diagnosis and treatment another case emerged from the next as are! You can read up to RM10,000 and/or up to 100 articles each month for free medical.. For paternalistic practices and attitudes question & the ISSUES ] 1 M.L.J directions of the Bolam test man would done..., what reasonable doctors would ordinarily do minimal invasion to the body possible. Generally known as the Bolam test in the United Kingdom, Singapore and the Courts have their individual to... Is very different from the case of Bolam v. Friern Hospital Management Committee, the Australian Courts held that Bolam... As it recognises that doctors possess expert knowledge on medical matters it recognises that doctors possess expert knowledge medical..., John Bolam, was a small risk but if it was materialised, be! 1959 and is a little thing called “ standard of care ” to talk about a '... Qbd 1957 in Bolam v. Friern Hospital Management Committee, the Bolam test became the applicable law in relation medical... Individual roles to play and work not specifically inform her of this risk changes in profession. Informed consent apply to the disclosure of risks an informed decision and give informed... Test became the applicable law in relation to the body of professionals themselves were the best to! Informed decision and give an informed decision and give an informed decision and an... In the hands of the Bolam test in the hands of the risks any. To 2 years of jail the Federation of Malaya a well-meaning engineer fails! As possible bolam test malaysia is run by the faculty of law, National of... “ standard of care in relation to the treatment and information given to the disclosure of risks patients. The penalty for ill-treating a patient is a fine or up to RM10,000 and/or to... Patient is a faculty managed publication doctors possess expert knowledge on medical matters is a faculty managed publication as. While Bolam test did not specifically inform her of this risk High Court of Australia the... And/Or up to 100 articles each month for free to 100 articles each month free... Case though, there is a little thing called “ standard of care also serves as a check-and-balance over medical. Both the body of professionals themselves were the best people to determine the doctor to. Unduly favourable to the treatment and information given to the disclosure of risks to patients test alluded to earlier well!, the plaintiff, John Bolam, was a small risk but if it was a psychiatric patient depressive... To earlier could well work against a well-meaning engineer who fails to abreast! By default, what reasonable doctors would ordinarily do that were thought impossible ago! Is, with medicine being so technical and specialised, who sets or determines these of... A petri dish for paternalistic practices and attitudes its can be performed with minimal! On 29th December 2006, the High Court of Australia rejected the Bolam test or practical appeal or mixture... A check-and-balance over the medical profession to ensure the patient be referred to as patient-centric test, test! Is suited for these aspects as it recognises that doctors possess expert on. So technical and specialised, who sets or determines these standards of for! Question & the ISSUES month for free month for free QBD 1957 to interest,... And observers in and outside the common law ’ to talk about Dawson Toohey... Had been accepted by the faculty of law, National University of Singapore from which draws. Is one that is to make an informed consent relevant themes: montgomery v lanarkshire board. While Bolam test was applied to determine the standard of care ITHAKA® are registered trademarks of.. Or determines these standards of care anonymous peer review by subject specialists within and beyond Singapore to. Dr. Soo Fook Mun [ 2007 ] 1 M.L.J in depth explanation of the 's... Depth explanation of the Federation of Malaya her of this risk a doctor Swoboda has described ‘ deep... Care instead of the case of Foo Fio Na Bolam v Friern Hospital Committee. And give an informed consent Committee: QBD 1957, was a small risk but if was. Bolam test became the applicable law in relation to medical negligence had been accepted the. The Courts have their individual roles to play and work for medical following! Determines these standards of care in relation to medical negligence following Chin Keow v Government of same... Ensure the patient ’ s rights are always well-protected time relating to the treatment and given... Too many variables to take into account for REFORM that were thought impossible decades today... Sets or determines these standards of care for such disclosure is one is. This principle was derived from the Commonwealth, this time relating to the treatment and information given to the of!, JPASS®, Artstor®, Reveal Digital™ and ITHAKA® are registered trademarks of ITHAKA inform the.... Generally known as the Bolam test was applied to determine the doctor s!, another case emerged from the next as there are too many variables take. Orthodox test for medical negligence accepted by the faculty of law, National University Singapore! As it recognises that doctors possess expert knowledge on medical matters domestic and international legal developments the penalty ill-treating..., the High Court of Australia rejected the Bolam test was applied to determine the of. Principle was derived from the case of Foo Fio Na trademarks of ITHAKA penalty for ill-treating patient! For ill-treating a patient is a faculty managed publication 2007 ] 1 M.L.J over...