In depth explanation of the case of Foo Fio Na. 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 … Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said. 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. JSTOR®, the JSTOR logo, JPASS®, Artstor®, Reveal Digital™ and ITHAKA® are registered trademarks of ITHAKA. Bolam v Friern Hospital Management Committee: QBD 1957. 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. 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. Submissions are subject to anonymous peer review by subject specialists within and beyond Singapore. Simply put, the Bolam Test was essentially that the body of professionals themselves were the best people to determine the standard of care. test in Malaysia, there is still room for . 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. Bolam was … 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. This too was the test for the standard of care for medical negligence cases in Malaysia. 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 doctor was entitled to inform the patient of all of the risks as any reasonable medical man would have done. 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. 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 also serves as a check-and-balance over the medical profession to ensure the patient’s rights are always well-protected. Yet, each case is very different from the next as there are too many variables to take into account. 19 The test is suited for these aspects as it recognises that doctors possess expert knowledge on medical matters. The Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. 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. Copyright © Richard Wee ChambersAll Rights Reserved. 13. In Foo Fio Na v. Dr. Soo Fook Mun [2007] 1 M.L.J. The Malaysian courts refer to an English case and an Australian case for different scenarios. quality of medical expert witness testimony. 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 Singapore Journal of Legal Studies has been in continuous publication since 1959 and is a faculty managed publication. This further solidified the position of judicial determination of the standards of care instead of the Bolam Test. ©2000-2020 ITHAKA. The doctor’s judgment is not to be questioned. 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 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. The Bolam Test alluded to earlier could well work against a well-meaning engineer who fails to keep abreast with changes in his profession. 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. This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. The medical profession has for a long time been a petri dish for paternalistic practices and attitudes. 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. Here, the patient is a passive participant that provides information and received treatment in accordance with the directions of the doctor. 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. 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. With a personal account, you can read up to 100 articles each month for free. 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. 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. 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 Bolam test became the applicable law in relation to medical negligence following Chin Keow v Government of the Federation of Malaya. 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 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. What ought to be done became, by default, what reasonable doctors would ordinarily do. 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. (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. 3)JUDICIAL APPROACH & TREND IN MALAYSIA. 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 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. 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. 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 ... Court rules on applicable test in medical negligence suits * - Malaysia. (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"). 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. T This has thus far attracted criticism as to the deference such a … The test is derived from the case of Bolam v. Friern Hospital Management Committee (1957) . Before going into the Bolam case though, there is a little thing called “standard of care” to talk about. 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 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 standard of care differs between an ordinary general practitioner and a lay man, as stated in … 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.’. Negligence was alleged against a doctor. 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. Plaintiff underwent operation and there was a risk. 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. On 29th December 2006, the test for medical negligence had been accepted by the Courts in Malaysia . 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) 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 … First, doctors need to be better educated . Simply put, the Bolam Test was essentially that the body of professionals themselves were the best people to determine the standard of care. improvement especially regarding the . The disclosure of risks concerns the individual autonomy of a patient – that is to make an informed decision and give an informed consent. 23. In Bolam v. Friern Hospital Management Committee, the test is originally used to determine medical negligence. SJLS is run by the Faculty of Law, National University of Singapore from which it draws its Editorial Committee. 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. Justice McNair in his directions to the jury in the case of Bolam v Friern Hospital … The standard of care expected of a doctor 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. 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 question then is, with medicine being so technical and specialised, who sets or determines these standards of care? 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 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. 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 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’. Nonetheless, both the body of medical professionals and the courts have their individual roles to play and work. This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. 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. Abstract. Swoboda has described ‘The deep ossification of the Bolam test in the common law’. 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." 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. THE MODIFIED MONTGOMERY TEST. The test requires doctors to conform to a 'responsible' body of medical opinion. In other words, the Australian courts held that the Bolam Test did not apply to the disclosure of risks to patients. 479 ('Rogers'). [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 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. 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. Reading Time: 9 minutes Introduction. 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. Assume for a moment that a significant number of engineers have migrated to a novel technique, leaving only a small … 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. 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 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. 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. 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 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 By Dato’ Mah Weng Kwai. 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. Singapore Journal of Legal Studies 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. 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. 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. b) Its can be refer to as patient-centric test, while Bolam test and Bolitho test can be referred to as doctor-centric test. It was a small risk but if it was materialised, could be severe in nature. It features topics with theoretical or practical appeal or a mixture of both. Medicine is a science that is constantly evolving. … 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. Don’t be afraid to seek help! The determination of the standard of care was placed in the hands of the medical profession of the same specialisation. 2)BOLAM TEST, BOLITHO TEST & WHITAKER TEST. 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. Relevant themes: montgomery v lanarkshire health board, informed consent, bolam test. 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’. Request Permissions.

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