Guía de Evaluación del Módulo Representación simbólica y angular del entorno

TEST IN MALAYSIA PRIOR TO 2006

Several reasons had been given by judges for adopting and maintaining the English characteristics of the Bolam test in Malaysia, although the occasions in which these justifications were given were rare. One of the earliest statements recorded within the court process is found in the judgment of Barakbah LP in Swamy. Drawing on the reasoning of Denning LJ in Hatcher,79 Barakbah LP expressed the fear that a legal standard that is higher than that of an ordinary competent doctor would lead to the following consequence:

‘It would mean that a doctor examining a patient or a surgeon operating at the table, instead of getting on with his work, would be forever looking over his shoulder to see if someone was coming up with a dagger; for an action for negligence against a doctor was like unto a dagger; his professional reputation was as dear to him as his body – perhaps more so. And an action for negligence could wound his reputation as severely as a dagger could his body...’.80

78 _{For instance Goode v Nash (1979) 21 SASR 419 (diagnosis) and Albrighton v Royal Prince Alfred}

Hospital [1980] 2 NSWLR 542 (surgical treatment). Both cases were examined in Sections 3.2.1 and 3.2.2 of Chapter 3 respectively.

79

The justification for applying the Bolam test was stated by Denning LJ in Hatcher [1954] CLY 2289 as

follows:

‘... In a hospital when a person was ill and came in for treatment, no matter what care was used there was always a risk; and it would be wrong and bad law to say that simply because a mishap occurred the hospital and doctors were liable. Indeed, it would be disastrous to the community...’.

122 From this passage, it was clear that the adoption of the Bolam test in Malaysia aimed to achieve two main purposes: protecting the doctors, and preventing them from placing their interests before that of the patients so as to avoid medical negligence claims.81

Even in the early 2000s, the Malaysian judiciary continued to defend the retention of the Bolam test in the name of safeguarding the interests of the doctors and the patients. This was so even though jurisdictions such as the United Kingdom and Australia had respectively qualified and rejected the Bolam test in the areas of diagnosis and treatment on the grounds that the test was too protective of the medical profession.82 This judicial policy was affirmed by Gopal Sri Ram JCA,83 albeit extra-curially. At the Second National Medico-Legal Conference in the capacity of a Court of Appeal judge in Kuala Lumpur in 2000, Gopal Sri Ram JCA noted that uniformity in the application of legal principles among the English Commonwealth jurisdictions is only appropriate in the commercial context, where there is a need to treat business transactions the same way across borders.84 In the area of medical negligence disputes, Gopal Sri Ram JCA took the view that the applicable legal principle should bring about benefits to the doctors and the patients.85 According to his Honour, giving the medical profession the final say on the legal standard of care, as the Bolam test does, could safeguard against the reluctance of the doctors to venture into new medicine at the expense of hampering the future advancement of medical science.86

The rationale for supporting the Bolam test in its original form in Malaysia arguably lacked a well-balanced analysis of its adverse implications. For instance, there were concerns that the Bolam test could potentially allow medical practices that were flawed, convenient to the medical profession and unjustifiable to patients to set the legal standard of care. There

81 _{This is the interpretation given by Yeo to this passage of Barakbah LP in Swamy. See Stanley Yeo}

Meng Heong, ‘The Standard of Care in Medical Negligence Cases’, (1983) 25 Malaya Law Review 32,

34.

82 _{See Section 2.6 of Chapter 2 and Section 3.2.6 of Chapter 3 for an analysis of the common law}

positions on the standard of care in diagnosis and treatment in the United Kingdom and Australia respectively.

83 _{Gopal Sri Ram JCA was also one of the sitting judges in the Court of Appeal decision in Chin Yoon}

Hiap. His Honour was elevated to the Federal Court in April 2010 and retired in February 2011.

84 _{The edited version of this paper was published as Justice of Appeal Gopal Sri Ram, ‘The Standard of}

Care: Is the Bolam Principle Still The Law?’, [2000] 3 Malayan Law Journal lxxxi, lxxxviii.

85 _{In support of this contention, Gopal Sri Ram JCA cited the judgment of Lord Lloyd in the Privy}

Council decision in Invercargill City Council v Hamlin [1996] 1 All ER 756, 764.

86 _{Justice of Appeal Gopal Sri Ram, above n 84, lxxxviii-lxxxix. The advantages of the Bolam test in}

safeguarding against the spectre of defensive medicine and ensuring the proper development of medical

science had also been advocated by Denning LJ in Roe [1954] 2 QB 66, 83. These policy

123 were also the fears that the absence of judicial intervention in the application of the test might encourage insularity and complacency in the medical profession at the expense of long-term improvement in the quality of medical service.87 These matters should have been addressed in the judicial reasoning for retaining the Bolam test in Malaysia.

A preferable approach to applying the Bolam test in Malaysia may have been to confer upon judges limited authority to reject the standard practice of the medical profession as unreasonable, such as in cases like Elizabeth Choo and Kow Nam Seng. In this regard, the following statements of Raja Azlan Shah J in Elizabeth Choo should have been decisive in determining the standard of care in cases concerning medical diagnosis and treatment. His Honour stated that the practice of the medical profession:

‘... cannot be free from restraint; where they are wrongfully exercised by commission or default, it becomes the duty of the courts to intervene’.88

In the light of this passage, the main issue would have been to what extent the courts should be allowed to reject the accepted practice of the medical profession. Both Elizabeth Choo and

Kow Nam Seng have provided instances in which judges may be able to do so. However, both cases, particularly Kow Nam Seng, should have provided clearer guidance on the situations in which the courts might be allowed to intervene, so that arbitrary standards would not have been imposed on the medical profession.

6.6 CONCLUSION

This chapter analysed the development of the Bolam test in Malaysia during the period between the 1960s and 2006. It examined the manner in which the internal bases of this English common law principle were treated in medical negligence cases concerning issues of diagnosis and treatment in Malaysia. The analysis demonstrated that there were essentially three discernible ways in which the Bolam test was applied in Malaysia. In a small number of precedents, the test had been subjected to some ‘cutting away of its offshoots’, with certain qualifications to enable the courts to make findings of negligence. In a minority of lower

87 _{These criticisms were expressed by the Law Council of Australia in pursuant to the review of the law}

on the standard of care in medical negligence cases by the Ipp Review Committee. They were elaborated in Section 5.2.2 of Chapter 5.

124 court decisions, the Bolam test was ‘discarded’, in which trial judges refused to apply it.

However, the majority of Malaysian court decisions during the period of analysis simply did not change its English characteristics. This state of the law is unsatisfactory as there was a lack of consistency and certainty in the application of the Bolam test.

The analysis revealed that the cases that rejected the Bolam test, notably the Malaysian High Court decisions in Kamalam and Foo Fio Na, began to appear in the late 1990s. Legal trends of a similar nature were also recorded in other common law jurisdictions during the same period. In 1997, the English House of Lords in Bolitho v City and Hackney Health Authority89 qualified the Bolam test to enable the courts to reject expert medical opinion concerning issues of diagnosis and treatment if they are satisfied that the opinion does not have a ‘logical basis’.90

Two years later, the Australian High Court in Naxakis v Western General Hospital91 held that the Bolam test should no longer be applied in cases that dealt with issues of diagnosis and treatment.92

In view of these developments, the real issue for Malaysia is whether the Bolam test should be retained in the twenty-first century. This question was addressed in late 2006 when the Federal Court in Foo Fio Na v Dr Soo Fook Mun93 was asked to consider whether the

Bolam test should be applied in ‘all aspects of medical negligence cases’.94 This important decision is examined in the next chapter of this thesis. The analysis shows that the Federal Court failed to provide a clear legal principle for deciding the standard of care in medical negligence cases concerning issues of diagnosis and treatment.

89 _{[1998] AC 232 (Bolitho).}

90

See Section 2.6 of Chapter 2 for an analysis of the English Bolitho principle.

91 _{(1999) 197 CLR 269.}

92 _{The decision in Naxakis was examined in Section 3.2.6 of Chapter 3.}

93 _{[2007] 1 MLJ 593.}

94

This was the legal question posed to the Federal Court for seeking special leave to appeal. A more detailed analysis of this legal question is given in Section 7.2.3 of Chapter 7.

125