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. 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. Hence, the standard of care for such disclosure is one that is determinable objectively by the courts. 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. 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. It takes a cross-jurisdictional approach to examine the corresponding legal development in the United Kingdom, Singapore and the Australian states. 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. The Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. In Bolam, the plaintiff, John Bolam, was a psychiatric patient suffering depressive illness. 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. 23. 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. 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? 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. 4)IMPLICATION TO HEALTH CARE IN MALAYSIA & PROPOSAL FOR REFORM. This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. Bolam was … Negligence was alleged against a doctor. This item is part of JSTOR collection The Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. 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. 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. The Journal continues to interest lawyers, academics and observers in and outside the common law world. Request Permissions. [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 Bolam-Bolitho test was retained for diagnosis and treatment. Assume for a moment that a significant number of engineers have migrated to a novel technique, leaving only a small … (McNair J.) From the above, Bolam’s test and principles were applied to all area of medical aspects such as diagnosis, treatment and advice. Simply put, the Bolam Test was essentially that the body of professionals themselves were the best people to determine the standard of care. Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said. The doctor knows best. Singapore Journal of Legal Studies 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. Relevant themes: montgomery v lanarkshire health board, informed consent, bolam test. 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. 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 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. Before going into the Bolam case though, there is a little thing called “standard of care” to talk about. Don’t be afraid to seek help! The penalty for ill-treating a patient is a fine or up to RM10,000 and/or up to 2 years of jail. 479 ('Rogers'). CONTENTS 24. In medical negligence litigation, the 'Bolam' test is cited as the starting point. 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. However, in 1993, another case emerged from the Commonwealth, this time relating to the disclosure of risks. 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) 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. 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. improvement especially regarding the . The standard of care expected of a doctor 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. 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. 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. Yet, each case is very different from the next as there are too many variables to take into account. The Malaysian courts refer to an English case and an Australian case for different scenarios. Submissions are subject to anonymous peer review by subject specialists within and beyond Singapore. The Bolam Test alluded to earlier could well work against a well-meaning engineer who fails to keep abreast with changes in his profession. By Dato’ Mah Weng Kwai. Mr. Bolam, a voluntary …show more content… The doctor’s … This further solidified the position of judicial determination of the standards of care instead of the Bolam Test. 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 … 13. 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. It was a small risk but if it was materialised, could be severe in nature. The test requires doctors to conform to a 'responsible' body of medical opinion. The doctor’s judgment is not to be questioned. The standard of care differs between an ordinary general practitioner and a lay man, as stated in … T This has thus far attracted criticism as to the deference such a … 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 Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. The Journal covers both domestic and international legal developments. 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. 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. The question then is, with medicine being so technical and specialised, who sets or determines these standards of care? 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. 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. Medicine is a science that is constantly evolving. 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 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 1)INTRODUCTION, THE QUESTION & THE ISSUES. 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. This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. Bolam v Friern Hospital Management Committee: QBD 1957. First, doctors need to be better educated . 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. 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. In depth explanation of the case of Foo Fio Na. 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. 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 … This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. Nonetheless, both the body of medical professionals and the courts have their individual roles to play and work. 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. For terms and use, please refer to our Terms and Conditions This test was applied to determine the doctor's standard of care in relation to the treatment and information given to the patient. Surgeon did not specifically inform her of this risk. b) Its can be refer to as patient-centric test, while Bolam test and Bolitho test can be referred to as doctor-centric test. 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. 3)JUDICIAL APPROACH & TREND IN MALAYSIA. 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 MODIFIED MONTGOMERY TEST. 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. Professional to use Skilled Persons Ordinary Care . 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’. This principle was derived from the case of Bolam v Friern Hospital Management Committee . III. What ought to be done became, by default, what reasonable doctors would ordinarily do. 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. 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. 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 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. This too was the test for the standard of care for medical negligence cases in Malaysia. quality of medical expert witness testimony. 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. 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. Reading Time: 9 minutes Introduction. 2)BOLAM TEST, BOLITHO TEST & WHITAKER TEST. 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. Plaintiff underwent operation and there was a risk. ©2000-2020 ITHAKA. 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. 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