Introduction

Medicine is a science that is constantly evolving. Surgical procedures that were thought impossible decades ago today can be performed with as minimal invasion to the body as possible. Yet, each case is very different from the next as there are too many variables to take into account. 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.

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 then is, with medicine being so technical and specialised, who sets or determines these standards of care?

The Bolam Test

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. Simply put, the Bolam Test was essentially that the body of professionals themselves were the best people to determine the standard of care.

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 determination of the standard of care was placed in the hands of the medical profession of the same specialisation. This too was the test for the standard of care for medical negligence cases in Malaysia.

The Bolam Test vs the test in Rogers v Whitaker

However, in 1993, another case emerged from the Commonwealth, this time relating to the disclosure of risks. 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. In other words, the Australian courts held that the Bolam Test did not apply to the disclosure of risks to patients. 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.

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. 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. This further solidified the position of judicial determination of the standards of care instead of the Bolam Test. 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?

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 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. Such is the position of law today.

Conclusion

The disclosure of risks concerns the individual autonomy of a patient – that is to make an informed decision and give an informed consent. Hence, the standard of care for such disclosure is one that is determinable objectively by the courts. 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. 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.

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 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.

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. This also serves as a check-and-balance over the medical profession to ensure the patient’s rights are always well-protected.

Bryan Boo

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