The standard of care in medical negligence within Malaysian jurisprudence has been significantly shaped by English common law, most notably by the principle established in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. In Bolam, the court set the standard that, ‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.’ This principle, often referred to as the Bolam test, was for many years the definitive measure for all aspects of a doctor’s duty in Malaysia. This document will discuss the importation of the Bolam test into Malaysia and explain its application in the distinct areas of diagnosis and treatment, and the provision of medical advice, with reference to foundational cases such as Chin Keow v Government of Malaysia [1967] 2 MLJ 45 and Kow Nan Seng v Nagamah [1982] 1 MLJ 128, before outlining the subsequent modifications to this standard in modern Malaysian law.
The Reception of the Bolam Test in Malaysia
Following its establishment in England, the Bolam test was adopted by the Malaysian courts, reflecting the nation’s common law heritage. The principle was seen as an appropriate way to balance the protection of patients with the need to avoid holding medical professionals liable for matters of clinical judgment where there could be differing professional opinions. The Federal Court’s decision in Chin Keow v Government of Malaysia [1967] 2 MLJ 45 is a key early example of the Malaysian judiciary applying this standard.
In Chin Keow, a woman died after being given a penicillin injection to which she was allergic. Crucially, the doctor administering the injection had not made any inquiry about the patient’s potential allergies. The court, applying the Bolam standard, considered what a reasonably competent doctor would have done in the circumstances. It was held that a doctor following ordinary, proper practice would have made such an inquiry before administering the injection. The failure to do so was a breach of the duty of care. Thus, negligence was established because the doctor’s conduct fell below the standard accepted by the medical profession. This case did not challenge the Bolam principle itself; rather, it affirmed its application by using it as the benchmark to find the defendant doctor liable.
The Bolam Test in Diagnosis and Treatment
The Bolam test became the entrenched standard for assessing the standard of care owed by a medical professional in the context of diagnosis and treatment. This application gave significant deference to the medical profession, effectively allowing doctors to set their own standards of care, provided their conduct was supported by a responsible body of medical opinion. This approach was consolidated in cases like Kow Nan Seng v Nagamah [1982] 1 MLJ 128.
In Kow Nan Seng, the plaintiff suffered from gangrene in his leg following an operation, which eventually led to amputation. The plaintiff alleged that the doctor was negligent in the post-operative care provided. The Federal Court applied the Bolam test directly to the question of treatment. It considered the expert evidence presented by both sides. Since the defendant’s actions were found to be consistent with a method of post-operative care accepted by a responsible body of medical professionals, the court held that negligence had not been established. The court emphasised that it was not its role to choose one medical opinion over another. As long as the doctor's conduct was supported by a respectable school of thought within the profession, it would not be deemed negligent. This decision cemented a paternalistic approach where the judgment of the medical profession was paramount in matters of clinical practice.
The Bolam Test and the Duty to Advise
For a significant period, the Bolam test was also applied to the duty of a doctor to advise and warn patients of the risks associated with a proposed treatment. Under this approach, the extent of information a doctor had to disclose was determined by what a responsible body of medical practitioners would have disclosed in the same circumstances. The focus was on the standards of the medical profession, not on the informational needs of the individual patient. This meant that if a body of medical opinion supported the non-disclosure of a particular risk, a doctor who failed to disclose it would not be found negligent.
However, this application of the Bolam test to the provision of advice began to attract criticism for undermining patient autonomy. The landmark Federal Court case of Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593 marked the beginning of a significant shift. The appellant in this case was paralysed after an operation on her spine and had not been warned of the risk of paralysis. The Federal Court departed from a wholesale application of the Bolam test, stating that it should not be treated as the sole determinant for all cases of medical negligence. The court expressed dissatisfaction with a test that allowed doctors to be the exclusive arbiters of the standard of care. Although the judgment in Foo Fio Na created some uncertainty as to the precise test that should replace Bolam in advice cases, it clearly signalled a move towards a more patient-centric approach.
This judicial shift was later clarified and confirmed by the Federal Court in Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438. The court explicitly held that the Bolam test should be confined to matters of diagnosis and treatment. For the duty to advise patients of risks, the court adopted the standard laid down in the Australian case of Rogers v Whitaker (1992) 175 CLR 479. This test requires the court to consider what risks a reasonable patient, in the patient’s specific position, would likely attach significance to. The focus thus moved from what the doctor thinks ought to be disclosed to what the patient needs to know to make an informed decision. This development mirrors the move away from Bolam in the UK, as seen in Montgomery v Lanarkshire Health Board [2015] UKSC 11. As noted by legal commentators like Puteri Nemie Jahn Kassim, this evolution in Malaysian law reflects a growing international trend towards recognising and protecting the principle of patient autonomy in medical decision-making (Kassim, 2017).
Conclusion
In summary, the Bolam test was received into Malaysian law from its English common law origins and became the governing principle for medical negligence. Cases like Chin Keow demonstrated its initial application, while Kow Nan Seng solidified its role in matters of diagnosis and treatment, creating a standard deferential to medical professional opinion. However, the dominance of the Bolam test has been deliberately curtailed by the judiciary. The Federal Court in Foo Fio Na and later, more decisively, in Zulhasnimar bt Hasan Basri has restricted the test’s application. Today in Malaysia, the Bolam test remains the relevant standard for assessing the standard of care in diagnosis and treatment. By contrast, in cases involving the disclosure of risks and medical advice, the courts now apply a patient-centric test that prioritises the patient’s right to self-determination and informed consent. Malaysian law has therefore evolved from a position of medical paternalism to one that seeks to strike a more even balance between the expertise of the doctor and the autonomy of the patient.
References
Kassim, P. N. J. (2017) Medical Negligence Law in Malaysia. Sweet & Maxwell.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
Chin Keow v Government of Malaysia [1967] 2 MLJ 45.
Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593.
Kow Nan Seng v Nagamah [1982] 1 MLJ 128.
Montgomery v Lanarkshire Health Board [2015] UKSC 11.
Rogers v Whitaker (1992) 175 CLR 479.
Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438.
