Informed Consent Compared: Foo Fio Na, Montgomery and Hii Chii Kok

A patient who complains that a risk was never mentioned will have that complaint judged under differently worded tests in Kuala Lumpur, London and Singapore. Yet the three systems have ended up in much the same place, and Malaysia got there first. The Federal Court decided Foo Fio Na on 29 December 2006, nine years before the United Kingdom Supreme Court decided Montgomery and over a decade before the Singapore Court of Appeal decided Hii Chii Kok.

Malaysia: Foo Fio Na and the two-track rule

The traditional yardstick in medical negligence is the Bolam test: a doctor is not negligent if what was done is supported by a responsible body of medical opinion. In Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593, the Federal Court, following the Australian case of Rogers v Whitaker (1992) 175 CLR 479, held that this test does not govern disclosure. A doctor must warn a patient capable of understanding of the material risks inherent in the proposed treatment, and the court, not the profession alone, decides whether that was done.

In Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438, the Federal Court settled the division. Diagnosis and treatment remain subject to Bolam, as qualified by Bolitho, which requires the supporting opinion to withstand logical analysis. Advice about risks is governed by Rogers v Whitaker and Foo Fio Na.

United Kingdom: a diabetic mother and an unmentioned risk

In Montgomery v Lanarkshire Health Board [2015] UKSC 11, decided unanimously by seven justices on 11 March 2015, the claimant was a woman of small stature with insulin-dependent diabetes who gave birth in 1999. There was a 9 to 10 per cent risk of shoulder dystocia, where the baby’s shoulder becomes stuck during vaginal delivery. The obstetrician did not routinely mention that risk, believing that most women would then ask for a caesarean section. Shoulder dystocia occurred and the baby suffered severe disabilities.

The Scottish courts applied Bolam and dismissed the claim. The Supreme Court allowed the appeal: a doctor must take reasonable care to ensure that the patient is aware of any material risks of the recommended treatment and of any reasonable alternatives. A risk is material if a reasonable person in the patient’s position would be likely to attach significance to it, or if the doctor is or should be aware that the particular patient would. The exception allowing information to be withheld for the patient’s own protection is limited.

In McCulloch v Forth Valley Health Board [2023] UKSC 26, the court added that which alternatives are reasonable enough to mention is judged by the professional-practice test.

Singapore: a three-stage test, then a statute

In Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38, as described in academic commentary, scans suggested that a patient might have pancreatic tumours. After a Whipple procedure, a major pancreatic operation, pathology showed the nodules were benign, and he suffered serious complications. His claims, including one for negligent advice, failed at trial and on appeal.

The Court of Appeal kept Bolam and Bolitho for diagnosis and treatment but adopted a modified Montgomery approach for advice, in three stages. First, the patient identifies the information not given and shows it was material to a reasonable patient, or to this patient where the doctor knew or should have known of particular concerns. Second, the court asks whether the doctor possessed that information. Third, the court examines whether withholding it was justified, for example by emergency, waiver or therapeutic privilege (where disclosure would seriously harm the patient).

Singapore’s Parliament then stepped in. According to a Dentons Rodyk note of 15 October 2020, an amendment passed on 6 October 2020 inserted a new section 37 into the Civil Law Act, making peer professional opinion the benchmark for medical advice, after concern that doctors were left uncertain about what a patient would regard as material. The section has patient-specific qualifications and should be read in full. Malaysia has no statutory equivalent.

Analysis: what the comparison shows, and what it does not

All three jurisdictions run the two-track model of Zulhasnimar: a professional standard for diagnosis and treatment, and a court-determined standard for advice.

Research for this article found no Malaysian decision that cites or applies Montgomery or Hii Chii Kok. They are, at most, persuasive material. They may still help on questions not yet settled here: the scope of therapeutic privilege; how far the duty extends to alternatives (compare McCulloch with the Court of Appeal’s reported emphasis on an undisclosed conservative alternative in Dr Chandran a/l Gnanappah v Gan See Joe & Anor [2025] 5 MLJ 216); and causation where a patient cannot say the treatment would have been refused. Singapore’s legislative step shows that a patient-centred standard can raise concerns about defensive practice.

Practical takeaways on consent conversations

• Patients: you are entitled to be told the material risks of a proposed treatment; a signed form is not the end of the inquiry. Ask about alternatives, including no treatment.

• Doctors: disclosure is judged by the court, by what a reasonable patient, or this patient, would want to know, not by what colleagues customarily say.

• Aesthetic practitioners: in Adam bin Hamil v Dr Chiam Tee Kiang [2024] MLJU 3311 the High Court applied Foo Fio Na to an aesthetic procedure; not disclosing the limits of the doctor’s credentialing undermined informed choice.

• Hospitals: in Dr Chandran the Court of Appeal is reported to have held a private hospital responsible in its own right for valid consent.

Authorities and sources

• Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 (FC); Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 (FC)

• Dr Chandran a/l Gnanappah v Gan See Joe & Anor and another appeal [2025] 5 MLJ 216 (CA); Adam bin Hamil v Dr Chiam Tee Kiang [2024] MLJU 3311 (HC)

• Montgomery v Lanarkshire Health Board [2015] UKSC 11; McCulloch v Forth Valley Health Board [2023] UKSC 26 (12 July 2023); Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38

• Rogers v Whitaker (1992) 175 CLR 479; Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; Bolitho v City and Hackney Health Authority [1997] 4 All ER 771

• Singapore: Civil Law Act, s 37

• UK Supreme Court case page and press summary; Malaysian Bar website; Austin, (2019) 27(2) Medical Law Review 339; Dentons Rodyk, 15 October 2020; Clyde & Co, July 2023

This article is general legal information only and is current as at 19 September 2026. It is not legal advice and does not create a solicitor-client relationship. Court decisions may be appealed and the law may change; please seek advice on your own circumstances. — Chris & Partners, Advocates & Solicitors