Author: Nartey Law Firm

1.INTRODUCTION.

Governments have traditionally held the responsibility for a broad range of functions including ensuring national defense, building and maintaining the national infrastructure, assessing and collecting taxes and revenues, promoting public health and well being, and providing education

The execution of these responsibilities requires the acquisition of goods, works, and services, thereby making public procurement a significant channel through which public funds are expended. Government agencies must therefore ensure that procurement processes are conducted in a fair, transparent, and accountable manner.  In addition, they are increasingly required to adopt modern tools including electronic procurement systems to enhance efficiency.[1]

To this end, Ghana took a significant step through a reform initiative on 25 October 2025 transitioning from manual to fully digital financial management systems.

Announced by the Deputy Finance Minister; Mr. Thomas Nyarko Ampem, this reform mandates that effective January 2026, all public expenditure be processed exclusively through the Ghana Integrated Financial Management Information System (GIFMIS). This reform was introduced to enhance efficiency, strengthen expenditure control and combat corruption within the financial management framework.[2]

The Organisation for Economic Co-operation and Development (OECD) defines Public Procurement as the purchase by governments and state-owned enterprises of goods, services and works. It accounts for a significant amount of total general government expenditure.[3] However, procurement is not merely an administrative purchasing activity; it is a legal and economic mechanism through which the State allocates resources within the economy.[4]

Policies and processes regarding procurement are often reflective of the economic system practiced. The crux of this article is to primarily focus on the three traditional economic systems, for the purpose of examining their structures, their advantages and disadvantages. It will also provide a concise overview of the public procurement law in Ghana and undertake a comparative analysis of how the three most prominent economic systems have shaped procurement policies, regulatory frameworks and laws in specific countries.

 

2. THE LEGAL FRAMEWORK OF PUBLIC PROCUREMENT.

In Ghana, Public procurement is governed by the Public Procurement Act, 2003 (Act 663). The Act established the Public Procurement Authority as the regulatory body responsible for the effective implementation of public procurement law in Ghana. [5]The Authority regulates, monitors and supervises public procurement processes to ensure transparency, accountability, efficiency and value for money in use of public funds.

For instance, when a road needs to be constructed the procurement agency would identify a need for a procurement plan, advertise the contract and invite bids from qualified contractors. The bids are then evaluated and the one which provides the most value for money is awarded with the contract.[6] All these activities are supervised and overseen by the Authority.

In OECD countries, public procurement accounts for approximately 13% of gross domestic product (GDP), while globally it ranges from an average of 13% to 20% of GDP.[7] In monetary terms, public procurement spending is estimated to amount to nearly USD 9.5 trillion worldwide.[8]

Given the significant impact of these figures on global GDP, procurement cannot be viewed in isolation from the systems that govern it. The next phase of this analysis explores the dominant economic models and the specific ways they inform and refine procurement frameworks across different jurisdictions.

3. CONCEPT AND CLASSIFICATION OF ECONOMIC SYSTEMS

According to the Corporate Finance Institute (CFI), Economic systems are the means by which societies or governments organize and distribute available resources, services, and goods across a geographic region or country[9]. Economic systems regulate the factors of production, including land, capital, labour and physical resources.[10] They also shape how resources are allocated, how prices are determined, and the extent to which government intervene in economic activity. The economic system adopted by a country significantly influences and determines the structure.

Among the most prominent systems are the market economy, the planned economy, and the mixed economy, each reflecting different balances between private enterprise and state control. Understanding the distinctions between these systems is essential, as they significantly influence public procurement processes, and overall economic development.

4. THE MARKET ECONOMY

A market economy is characterized by minimal state intervention, with economic decisions driven primarily by supply and demand. Resource allocation, pricing and production are determined through market interactions rather than centralized planning. It is also known as a free market economy or a capitalist economy[11] and is most notably practiced in Singapore and Hong Kong.

Beyond definition, what truly distinguishes market economies is the belief that when economic decisions are made independently by buyers and sellers rather than by the government, the allocation of resources tends to be more efficient. For example, in Ghana, the transition from cash transactions to digital and mobile money payment systems, reflects how network providers and banks have responded to its consumer demands following the introduction of Mobile Money by MTN in 2009. Although the initiative was introduced within a regulated framework with significant restrictions, its rapid expansion was driven largely by market demand rather than government compulsion.[12] The success of this initiative encouraged other telecommunications companies such as Vodafone and Airtel-Tigo to introduce similar mobile money services in order to remain competitive within the market.

This dynamic highlights the core strength of the market system: its ability to foster innovation through competition rather than central planning. However, the efficiency of such a decentralized model is often balanced against its inherent volatility. To understand how these market forces are managed in practice, it is necessary to examine the specific attributes, strengths, and systemic limitations that define the free market framework.

In a market economy, private ownership and competition sit at the centre of economic activity. Individuals and firms control resources and make independent decisions about production and consumption, rather than waiting for instructions from some distant bureaucratic office. In Ghana, this is visible in the formal sector, where banks, manufacturers, and service providers operate within legal frameworks but ultimately respond to consumer demand. The constant pressure to outperform rivals forces businesses to improve quality, reduce costs, and offer prices that consumers can actually tolerate.

Closely tied to this is the way prices are determined. Instead of being fixed by the state, prices emerge from the interaction between supply and demand. These price signals quietly coordinate the entire economy, telling producers what to make and consumers what they can afford. When scarcity hits, as seen during the COVID-19 period in Ghana, prices adjust quickly, sometimes uncomfortably so, reflecting the underlying imbalance between what is available and what is wanted.

The role of government in such a system is deliberately limited. Ideally, it focuses on maintaining law and order, enforcing property rights, and providing essential public goods, while leaving the market to handle the rest. The theory sounds clean and elegant. Reality, as usual, is messier, but the general idea remains that less interference allows the system to function more freely.

Advantages And Disadvantages of Market Economies

Market economies promote efficiency, innovation and consumer choice. Competition tends to improve consumer welfare by expanding choice and keeping prices relatively competitive.

However these systems are not without limitations. Market failures may occur particularly in the presence of monopolies. Inequality is also a persistent concern, as wealth and resources tend to concentrate among a limited segment of the population and which potentially undermines competition. Over time, wealth and productive resources can become concentrated in the hands of a few, reducing competition and making the “free” market feel suspiciously controlled, just by private actors instead of the state.

5. PLANNED ECONOMIES

In contrast a planned economy is an economic system characterized by centralized control where the state determines pricing, production and distribution. Examples of planned economies are communist and socialist systems where facets of economic productions are controlled by government.

Essentially, under planned economies, producers and sellers sell their products at prices predefined by the government. The overall objectives of such countries are to focus on the overall growth and development of the economy at large rather than focusing on benefitting private individuals. The former Soviet Union was a classic example of a planned economy, where the State owned all the means of production and all economic decisions between the years of 1922 to 1992.[13] However, it faced several challenges which led to its collapse. These challenges are addressed further in this article.  There are several characteristics of planned economies, below are some basic characteristic and key attributes of a planned economy.

• Under planned economies, the government owns most of the resources and businesses and controls directly the economic activity of the country.
• The prices of goods and services are set by the government by assessing the value and the importance of the products and services provided to it by the producers or the sellers
• The distribution, pricing and decisions relating to the goods and services to be provided are based on predefined goals and targets established by the government or government agencies
• The government is extensively involved in every aspect of the economic life which includes the production levels, resource allocation, distribution.

Advantages And Disadvantages Of Planned Economies.

A planned economy offers several advantages, particularly in terms of regulation and social welfare. One major advantage is that producers cannot engage in malpractices because the government determines production levels and closely supervises economic activities. Since the State controls what is produced and how it is distributed, opportunities for exploitation, artificial scarcity, and unfair business practices are significantly reduced.[14]

Another advantage is that consumers and buyers are protected from exorbitant prices. In a planned economy, prices are set by the government rather than by market forces. This helps to ensure affordability and prevents price manipulation that may arise from monopolies or excessive profit-seeking behaviour. As a result, essential goods and services are often made accessible to the general population.[15]

Additionally, resources are often distributed more equitably across different sections of the economy. The government allocates resources according to national priorities and social needs rather than individual wealth or purchasing power. This promotes social equality and aims to reduce disparities in income and access to essential services.

Despite these advantages, a planned economy also has notable disadvantages. One major drawback is that producers are unable to maximize profit due to the complete control of the government over production, pricing, and distribution of goods and services. The absence of profit incentives may reduce motivation, innovation, and entrepreneurial initiative.

Furthermore, due to the lack of competition among producers, efficiency and product quality may be adversely affected. Competition often drives businesses to improve services and innovate; however, in a planned economy, the absence of competitive pressure may lead to complacency, inefficiency, and lower standards of goods and services.

Another disadvantage is that consumers do not enjoy freedom of choice and variety. Since the government determines what is produced, consumers are often limited to certain products and services. In essence, their preferences may not be fully considered, resulting in limited options in the marketplace.[16]

6.MIXED ECONOMIES

A mixed economic system integrates elements of both market economy or capitalism and planned economy or socialism, balancing private property rights and economic freedom with government oversight to further social objectives. It benefits from the advantages of these economies whiles also experiencing some disadvantages.

Ghana is notably considered as a having a mixed economy. Ghana’s economy is largely market based but there is still a significant government intervention and interactions.  While private enterprises and market forces of demand and supply drive much of economic activity, the government plays an active role in regulating key sectors, providing essential public services and formulating policies aimed at promoting national economic development.[17]

Advantages And Disadvantages Of Mixed Economic System.

A mixed economy combines several of the desirable qualities of both a market (capitalist) economy and a planned (socialist) economy. By incorporating elements of private enterprise alongside government intervention, it seeks to balance efficiency with social welfare. This hybrid structure allows the private sector to drive innovation and competition while enabling the government to regulate economic activity in the public interest.

One major advantage of a mixed economy is increased efficiency and productivity due to market-based incentives. Since private businesses operate alongside public institutions, firms are motivated by profit incentives to innovate, reduce costs, and improve the quality of goods and services. This competitive environment promotes economic growth and allocative efficiency while still allowing for government oversight where necessary.[18]

Another significant advantage is the provision of welfare protections for the poorest members of the population. Unlike a purely market-based system, a mixed economy allows the government to implement social security programs, public healthcare, education, and other welfare policies. These interventions help reduce inequality, protect vulnerable groups, and promote a more equitable distribution of resources.

Despite these advantages, a mixed economy also has certain disadvantages. One key limitation is that funding welfare policies requires higher taxation. Increased taxes may reduce individuals’ disposable income and potentially discourage investment and entrepreneurship. Businesses may also face higher operational costs, which can affect economic growth.

Furthermore, government intervention may distort market forces, leading to inefficiencies and the misallocation of resources. Excessive regulation or poorly designed policies can reduce competition, slow innovation, and create bureaucratic obstacles that hinder economic performance.[19]

Additionally, mixed economies may be susceptible to regulations shaped by influential business interests. In some cases, regulatory policies may serve private interests rather than the broader public interest, leading to regulatory capture and reduced fairness within the economic system.[20]

7. THE INFLUENCE OF ECONOMIC SYSTEMS ON PROCUREMENT LAW

Comparative Case Studies: USSR, China, and India

In the modern world, capitalism, also known as a free market economy and the mixed economy system, are the most widely adopted economic system. This development is largely the result of significant historical events. A notable example is the former Union of Soviet Socialist Republics (USSR), which operated under a strict communist and centrally planned economic system during the twentieth century. The Soviet Union’s experiment with a highly centralized planned economy contributed to its economic stagnation and eventual collapse in 1991.

The system was characterized by extensive state control over production and distribution, limited market incentives, and minimal private enterprise. Over time, this led to inefficiency, shortages, declining productivity, and widespread poverty. In addition to economic difficulties, political instability and rising nationalist movements within various republics further weakened the Union. Ultimately, the Soviet Union was formally dissolved on 25 December 1991.[21]

Another useful example is the People’s Republic of China, which also operated under a planned economic system for much of the twentieth century. However, following economic challenges and limited growth under strict central planning, China introduced significant economic reforms in 1978. Rather than maintaining a rigid planned economy, China adopted a hybrid or mixed economic system that combines state ownership with private enterprise, foreign investment, and market-based incentives. These reforms were partly motivated by the desire to avoid the type of economic collapse experienced by the USSR. As a result of these changes, China has experienced rapid economic growth and is currently one of the largest economies in the world.[22]

Procurement in China is governed by the Government Procurement Law of the People’s Republic of China 2002 The law reflects both market-oriented principles and elements of planned economy which has an element of State control, consistent with China’s mixed/ hybrid economic system.

For example, Article 3 of the Act provides that ‘‘government procurement activities shall adhere to the principles of openness, transparency, fair competition, impartiality, and good faith. These principles clearly reflect characteristics of a market economy, particularly the emphasis on competition and transparency.’’[23]

However, the Law also retains features of a planned system. Article 7 states that ‘‘government procurement shall be conducted through both centralized and decentralized methods, and that items subject to centralized procurement shall be determined according to a centralized procurement catalogue published by people’s governments at or above the provincial level. This provision demonstrates continued government oversight and control over certain procurement activities.’’[24]

Similarly, after independence, India adopted a mixed economy to balance public and private sector roles. Early Five-Year Plans and the Industrial Policy of 1948 guided this transformation, though progress was slow due to limited private capital. The 1991 liberalization revitalized the mixed economy: foreign brands entered the market, foreign direct investment (FDI) rose significantly, and consumers gained access to a wider variety of products, improving living standards. India’s experience highlights how economic systems impact business, investment, and consumer welfare.[25]

Public Procurement in Ghana within a Mixed Economy Framework

Lastly, unlike purely state controlled economies or planned economies, Ghana operates a mixed economic system, which distinguishes it from purely state-controlled or centrally planned economies. In this system, public institutions, private enterprises, multinational corporations, small and medium-sized enterprises (SMEs), and informal traders all actively contribute to economic activity, reflecting a blend of market-driven and government-directed mechanisms. A key feature of this framework is the regulation of public procurement,

The Act mandates that procurement processes by public entities be conducted through competitive methods, including international competitive tendering, national competitive tendering, requests for quotation, and restricted tendering. [26]This allows competition between both government and private entities.

This structured approach ensures transparency, accountability, and efficiency, while simultaneously promoting both public oversight and market competition. Consequently, Ghana’s procurement system reflects the interplay between market principles and state regulation, demonstrating the country’s broader economic strategy of balancing efficiency with social and developmental objectives. Beyond procedural mechanisms, the Public Procurement Act 2003 (Act 663) also addresses ethical conduct in procurement. Section 93(1) criminalizes corruption, stipulating that “entities and participants in a procurement process shall, in undertaking procurement activities, abide by the provisions of article 284 of the Constitution.” [27]This provision reinforces integrity and fairness, ensuring that procurement decisions are not influenced by personal gain or malfeasance.

From the perspective of a mixed economy, Section 93 exemplifies how regulatory oversight can protect public resources while supporting private enterprise and competition. By enforcing anti-corruption measures, the state safeguards market confidence, encourages foreign and domestic investment, and ensures that SMEs and other market participants operate on a level playing field. In essence, the Act integrates market efficiency with social and ethical governance, which is a hallmark of mixed economies: combining the innovation and competitiveness of markets with the corrective oversight of government intervention.

8. LESSONS FOR REFORM AND POLICY DEVELOPMENT

The historical experiences of the Soviet Union, China and India provide valuable lessons for modern mixed economies such as Ghana. These countries highlight both the strengths and weaknesses of different economic systems and demonstrate how a balance between state control and market forces can promote sustainable development.

One important lesson is the fragility of central planning as seen in the collapse of the Union of Soviet Socialist Republics USSR. A system based on total state control over production and distribution limited innovation and resulted in persistent shortages of goods. The absence of market incentives reduced efficiency and weakened productivity over time. This illustrates that an economy without competitive pressures is unlikely to sustain growth or adaptability.

In contrast China’s economic reforms beginning in 1978 demonstrate the success of a mixed economic approach. By introducing market mechanisms such as private enterprise competition and foreign investment within a state guided framework China achieved rapid economic growth. The government maintained oversight while allowing market forces to improve efficiency. Its procurement approach shows that centralized coordination can exist alongside fair competition without undermining performance.

India’s economic liberalization in 1991 further reinforces the importance of market openness. Prior to these reforms heavy regulation restricted growth and limited consumer choice. The introduction of foreign direct investment and competition improved efficiency expanded the range of goods and services and raised living standards. This case shows that liberalization when carefully managed can significantly enhance economic welfare.

These lessons are directly relevant to Ghana’s procurement framework within its mixed economic system. The Public Procurement Act 2003 Act 663 provides a strong legal foundation aimed at balancing efficiency with accountability. The Act promotes competitive procurement methods such as International Competitive Tendering and National Competitive Tendering to ensure value for money while maintaining transparency. Section 93 (1) of the Act criminalizes corruption and is intended to protect market confidence and ensure fairness particularly for small and medium sized enterprises.

Despite this strong legal framework there is often a gap between theory and practice. One major issue is the frequent use of sole sourcing which undermines competition. Although intended for exceptional circumstances it is often applied more broadly thereby weakening market discipline. Efforts to address this challenge were highlighted in the State of the Nation Address on 27 February 2025 where the President announced plans to tighten procurement rules and restrict sole sourced contracts.[28]

Political interference also presents a significant challenge. While the law emphasizes impartiality procurement decisions are sometimes influenced by political considerations. This reduces trust in the system and discourages fair participation. Strengthening the independence of the Public Procurement Authority is necessary to ensure that procurement decisions are made based on merit rather than external pressure.

Another concern is bureaucratic delay. The combination of centralized and decentralized procurement processes can create inefficiencies and slow down project implementation. This can increase costs and discourage private sector involvement. The adoption of electronic procurement systems would improve efficiency by streamlining procedures increasing transparency and reducing opportunities for corruption. As stated above, Ghana has already initiated steps in this direction through ongoing digital financial management reforms including the transition to the Ghana Integrated Financial Management Information System GIFMIS which is expected to strengthen expenditure control and reduce manual inefficiencies.

Finally, enforcement of ethical standards remains weak. Although legal provisions against corruption exist prosecutions are limited which reduces their effectiveness as a deterrent. Establishing specialized procurement audit units within the Auditor General’s office would allow for continuous monitoring and ensure compliance in real time rather than after the fact.

Overall, the experiences of the Soviet Union China and India demonstrate that neither complete state control nor unrestricted markets are sufficient on their own. A balanced mixed economy is more effective when supported by strong institutions and consistent implementation of policies. For Ghana improving procurement practices through enhanced transparency reduced political interference and stronger enforcement will help bridge the gap between theory and reality and support long term economic development.

 

9.CONCLUSION

The design and the operation of public procurement law is fundamentally shaped by  the underlying economic system. Market economies emphasize efficiency and competition, planned economies prioritize control and equity while mixed economies seek to balance both.

Ghana’s mixed economic model provides a sound foundation for an effective procurement system. However achieving its full potential requires consistent implementation, strong institutions and a continued commitment to transparency and accountability.

Ultimately, effective procurement law must balance value for money, transparency and efficiency with broader socio-economic growth and promote the responsible management of public resources.

[1] Thai (ed), International Handbook of Public Procurement (Public Administration and Public Policy, CRC Press 2009) 35 Accessible from: https://api.pageplace.de/preview/DT0400.9781351562393_A30892272/preview-9781351562393_A30892272.pdf accessed 10 February 2026.

[2] Ghanaian Times, Public expenditure goes electronic effective Jan. 2026, Ghanaian Times (24 October 2025) Ghanaian Times Accessible from https://ghanaiantimes.com.gh/public-expenditure-goes-electronic-effective-jan-2026/ Accessed 4 March 2026

[3] Organisation for Economic Co-operation and Development (OECD), ‘Public procurement spending’ in Government at a Glance 2013 (OECD Publishing 2013).

[4] Thai (ed), International Handbook of Public Procurement (Public Administration and Public Policy, CRC Press 2009) 35 Accessible from: https://api.pageplace.de/preview/DT0400.9781351562393_A30892272/preview-9781351562393_A30892272.pdf accessed 10 February 2026.

 

[5] Public Procurement Act 2003 (Act 663) s 1(1)

[6] Public Procurement Act 2003 (Act 663) ss 21–23.

[7] World Bank, ‘Global Public Procurement Database: Share, Compare, Improve!’ (23 March 2020) World Bank https://www.worldbank.org/en/news/feature/2020/03/23/global-public-procurement-database-share-compare-improve accessed 16^th February 2026.

[8] Ibid

[9] Corporate Finance Institute, Economic System (Corporate Finance Institute, 16 February 2026) https://corporatefinanceinstitute.com/resources/economics/economic-system/ accessed 16 February 2026

[10] Ibid

[11] Market Economy vs Planned Economy (GripInvest, undated) https://www.gripinvest.in/blog/market-economy-vs-planned-economy accessed 16 February 2026.

[12] GSMA, MTN Mobile Money: Spotlight on Ghana (GSMA Mobile for Development, 2025) https://www.gsma.com/solutions-and-impact/connectivity-for-good/mobile-for-development/country/ghana/mtn-mobile-money-spotlight-on-ghana/ accessed 16 February 2026.

[13] How did the Soviet economy work and why did it fail? (Russia Beyond, 2019) https://www.rbth.com/history/330630-how-soviet-economy-work accessed 16 February 2026

[14] Market Economy vs Planned Economy (GripInvest, undated) https://www.gripinvest.in/blog/market-economy-vs-planned-economy accessed 16 February 2026.

[15] Ibid

[16] Market Economy vs Planned Economy (GripInvest, undated) https://www.gripinvest.in/blog/market-economy-vs-planned-economy accessed 16 February 2026.

[17] Tejvan Pettinger, Mixed Economy – Economics Help (EconomicsHelp.org, 2023) https://www.economicshelp.org/blog/glossary/mixed-economy/ accessed 20 February 2026.

[18] Greg Young, Mixed economy (Encyclopædia Britannica, online) https://www.britannica.com/money/mixed-economy accessed 18 February 2026.

[19] Tejvan Pettinger, Mixed Economy – Economics Help (EconomicsHelp.org, 2023) https://www.economicshelp.org/blog/glossary/mixed-economy/ accessed 20 February 2026.

[20] Mixed Economy (EBSCO Research Starters, 2023) https://www.ebsco.com/research-starters/political-science/mixed-economy accessed 16 February 2026

[21] Economy of the Soviet Union (Wikipedia, n.d.) https://en.wikipedia.org/wiki/Economy_of_the_Soviet_Union accessed 16 February 2026

[22] China’s Role in the Global Economy (EBSCO Research Starters, 2024)  https://www.ebsco.com/research-starters/economics/chinas-role-global-economy accessed 16 February 2026

[23] Government Procurement Law of the People’s Republic of China 2002, art 3.

[24] Government Procurement Law of the People’s Republic of China 2002, art 7.

[25] Market Economy vs Planned Economy (GripInvest, undated) https://www.gripinvest.in/blog/market-economy-vs-planned-economy accessed 20 February 2026.

[26] Public Procurement Act 2003 (Act 663) s 35.

[27] Public Procurement Act 2003 (Act 663) s93(1)

[28] The Fourth Estate. (2026, March). Disregard for President’s vow for prudence: Ministry awards 81 sole-sourced contracts worth over GHS73 billion in 7 months. The Fourth Estate. https://thefourthestategh.com/2026/03/disregard-for-presidents-vow-for-prudence-ministry-awards-81-sole-sourced-contracts-worth-over-ghs73-billion-in-7-months/

 

 

BY; Adriana Blankson, Esq.

 

Disclaimer: This publication is for information purposes only and is not intended to constitute legal advice. If you require information on any matter discussed in this article, kindly reach out to the firm directly.

 

Nartey Law Firm is a leading corporate and commercial law firm in Ghana providing legal services to individuals, domestic and international businesses. Ensuring the success of our clients’ objectives is at the core of what we do.  Comprised of a dedicated team of lawyers with extensive experience in corporate, commercial and international law and litigation, we pride ourselves with the diligent execution of all client matters, whilst guaranteeing an uncompromising standard with respect to excellence in service delivery. Some of our focus areas are Real Estate, Trade and Commerce, Banking and Finance, Regulatory Advisory, Capital Markets and Mergers and Acquisitions.

 

1. Introduction: The Paradox of Professional Protection

The average person goes to the hospital with one basic assumption: that the medical staff know what they are doing and will always act in their best interest. Where this assumption is not met, the law is meant to give patients accessible means to pursue accountability and compensation. In simple terms, the law of torts is designed to put a person back in the position they would have been in if the wrong had not happened. [1] Yet medical negligence exposes how difficult that idea becomes in practice. Unlike intentional wrongdoing, medical negligence arises in an environment shaped by uncertainty, competing risks, and split-second judgment calls. Courts therefore approach such claims cautiously, often prioritising the protection of medical professionals against frivolous litigation. However, this article argues that it often creates too high a bar for successful compensation. By examining systems around the world, we can propose a recalibration that prioritizes the patient without paralyzing the physician.

Medical negligence may attract criminal,[2] administrative,[3] or civil consequences. In civil law, such claims are generally brought under the tort of negligence.[4] Under this head of torts, a claimant must generally prove three things: that the defendant owed them a duty of care, that the defendant failed to meet the required standard, and that this failure caused harm. [5] Put more simply, the patient must show that the doctor had a responsibility to act carefully, did not meet that standard, and that this failure led to injury. Courts often assess this by asking what a reasonably competent professional would have done in the same situation. [6] In medical negligence, the “duty of care” is rarely the issue. The fight usually centres on whether that duty was breached.

1. The Bolam Standard and the Judicial Architecture of Medical Negligence

To determine this, courts apply the Bolam Test, born from the 1957 case of Bolam v Friern Hospital Management Committee. [7] In simple terms, a doctor is not negligent if he acts in a way that a responsible body of doctors in his position would have reasonably acted. [8] The logic behind the rule is straightforward. Medicine involves specialised knowledge that judges and ordinary laypersons do not possess. Courts therefore defer heavily to professional opinion when evaluating clinical decisions.

Ghanaian courts formally adopted the Bolam approach in Gyan v Ashanti Goldfields Corporation,[9]  where a child was paralyzed after receiving a chloroquine injection for a fever following an unsupervised misdiagnosis by the attending nurse. Expert evidence suggested that in the tropics, fever was most commonly malaria, and the nurse had followed standard medical practice for the time. Applying Bolam, the court concluded that the nurse acted in a manner consistent with what a responsible body of medical professionals would have done.

The test received further clarification in the recent case of Dr Sandys Arthur v Ghana Medical Association[10] where the Court of Appeal, per Ofoe JA, stated thus[11]:

“I will agree with the appellant when he contended that in diagnoses and treatments there are differences of opinion between medical officers. A medical officer is not negligent merely because his conclusion differed from the other professional or because he displayed less skill or knowledge than the other. As stated in the case of Hunter v. Hanley 1955 SC 200 and Whitehouse v. Jordan (1980) 1 ALL ER 650 cited by the appellant, the true test in establishing negligence in diagnosis or treatment on the part of a doctor is whether he had been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of acting with ordinary care. Fair and reasonable standard of care and competence are required…. The facts of each case should be the sole determinant whether a medical man should be found negligent for wrong diagnosis or not”

These cases, and others like them, show that the law sets a high bar for patients who wish to sue . It is not enough to show that they have suffered some injury or that  a better result could have been produced had the doctor acted differently, the patient must show that no reasonable body of medical professionals would have acted in the same way. This effectively means that the standard of care is defined largely by the medical profession itself.

While this protects doctors from being judged unfairly by non-experts, it also raises an important concern: if the profession sets its own standards, how easy is it for a patient to prove that those standards have been breached? This concern was pointed out by Ofori-Boateng J.A. (as he then was) through his dissenting opinion in the Gyan case mentioned above where the learned Justice stated thus:

… But if the common practice is fraught with negligence, as I think the practice of the defendants’ hospital is, even if truly it is the practice of all the hospitals in Ghana, then the practice is not the one “which a responsible body of skilled medical men would accept as proper.” … Indeed, if a hospital practice is negligent and breaches the duty hospitals owe to patients, the extensiveness of that negligence, because it is committed by many hospitals in general, cannot cure the practice of its negligent nature.” (Emphasis is mine)

• The Rationale and Reality of the High Threshold

Despite the criticisms of the existing system, it should be stated that the difficulty is not accidental; it exists with certain justifications. The system reflects the reality that medicine is complex, risky, and often involves making urgent decisions with imperfect information.

The first justification is the recognition that medicine by its very nature is incredibly precarious; even everyday steps can end in catastrophe. Medicine is inherently risky and a harmful result does not automatically mean that somebody was negligent. In The State v. Kwaku Nkyi,[12] a student nurse visited a home to treat a sick child, but injected arsenic instead of the intended drug, simply because he failed to check an unlabelled vial. With hindsight, the error looks glaring. Courts, however, resist that temptation. They judge a professional’s decision at the moment it was made, not after disaster has unfolded. That is the logic of the Bolam test: you measure conduct against what was reasonable then, not what feels obvious now.

Secondly, errors are an unavoidable part of medicine. A world of zero mistakes is utopian. Courts are very careful to separate error from negligent. The fact that a person made a mistake does not per se mean they have been negligent. The public will typically judge conduct based on the outcome; the death of an infant during childbirth will obviously feel like negligence and families would understandably search for a person to blame. The law, however, focuses on the reasonableness of the decision, not the size of the tragedy. Emotionally, it is hard to distinguish mistakes, even genuine ones, from negligence but legally, the law must create some separation. This gap can feel like a failure of justice. But if every adverse outcome triggered liability, the profession would become impossible to practise.

The third reason is that courts are very concerned about the practice of what is known as defensive medicine, where doctors order excessive tests, make unnecessary referrals, or avoid high-risk but beneficial procedures, not for the patient’s sake, but to build a legal shield. These methods inflate costs, put undue pressure on limited resources and can greatly compromise care. Courts are especially careful about creating a system where medical practitioners are unwilling to undertake medical procedures for fear of legal liability.

As former Supreme Court Justice Date-Bah JSC memorably framed this tension at a 2018 workshop:

“Medicine and the Law is a battle area and we need to bring the rule of law into that area. In Ghana, it is said that health professionals never testify against themselves and therefore there is a real hurdle to litigation of medical malpractice cases. It is important that health professionals should put the public interest first. On the other hand, we do not want to go the other way such as in America where doctors may fear to touch patients for fear of malpractice. There has to be a middle way somewhere”[13] (Emphasis is mine)

A quieter concern is that such critical enquiry might deter talented people from entering high-risk fields,[14] especially where working conditions are already sub-optimal. [15]

Notably, judges recognize their limitations. They are not clinicians and thus they will not casually dictate medical standards.  Multiple accepted methods can exist, and a practitioner should not be condemned with hindsight for choosing one.[16] Outcomes often turn on underlying health factors beyond a doctor’s control, and courts refuse to base liability on speculation.[17]

Finally, regard is often had to the resource constraints under which many hospitals operate, particularly in developing jurisdictions, where practitioners are required to deliver care despite limited facilities and equipment.[18]

1. Barriers to Justice: Asymmetry, Evidence, and Cost

While these justifications form a rational bulwark against the erosion of medical practice, they simultaneously construct a formidable landscape for the aggrieved patient to navigate. The very ‘middle way’ sought by Date-Bah JSC is often affected by the sheer weight of the legal and structural disadvantages inherent in the patient-provider relationship.

Chief among these, and perhaps the most fundamental hurdle facing claimants, is the structural problem of information asymmetry. According to the Ghana Statistical Service in 2021, only about 5 to 6 per cent of the population has attained a bachelor’s degree as their highest qualification,[19] with postgraduate qualifications accounting for less than 2 per cent.[20] At the same time, national figures for the end of 2021 estimated one doctor for every 11,295 patients and one nurse for every 378 patients.[21] This practically means that most people approach healthcare without advanced formal education, relying almost entirely on faith and trust.

While this is absolutely desirable, it creates a fiduciary relationship of sorts where one party is always vulnerable relative to the other. In other contexts of a fiduciary nature, courts routinely hold the stronger or less vulnerable party to a higher standard,[22] even when the vulnerable party contributed to the loss. [23] However, in the context of medical negligence, this protective instinct is diluted by the continued reliance on peer-defined standards. A claimant who is unaware of the processes to be undertaken and the available alternatives will naturally fail to identify when said process is not being followed. Even when they do, they will struggle to identify what counts as relevant evidence, and most critically, what the profession accepts as competent practice. The claimant is thus expected to essentially play a game where the opponent has the rulebook.

A second major obstacle concerns evidence and how it is obtained. Successfully arguing that a doctor was negligent quires the patient to first discover what actually happened and because medical records are held exclusively by institutions, these institutions sometimes refuse to release them. In Elizabeth Vaah v Lister Hospital and Fertility Centre,[24] a mother who suffered a stillbirth was denied her own records because she had spoken to the media. It took the intervention and reprimand of the High Court, holding that under Article 21(1)(f) of the 1992 Constitution, a patient possesses an unqualified right to access their medical records for any legitimate purpose, and that prior media engagement did not constitute a lawful basis for refusal. Similarly, in Jehu Appiah v Nyaho Healthcare Limited,[25] the patient had to sue just to force the hospital to release diagnostic notes regarding a life altering surgery after having been compelled to undergo life-saving surgery at another facility, allegedly as a result of the defendant’s acts and omissions which led to damage to her fallopian tube. In both of these cases, the demand for accountability started not even with the injury, but with the quest for the truth.

The third hurdle is access to experts willing to testify.  Under the Bolam Test, the court inevitably turns into a forum for peer review where the judge acts more as a facilitator than an independent arbiter of clinical quality.[26] While the court can appoint its own experts, the system often relies on a single voice to represent the entire profession.[27] The ideal situation would be that multiple experts would testify, giving the court a range of views regarding what constitutes accepted practice and where legitimate differences of opinion exist. This diversity of opinion is how the court can better identify where professional discretion ends and negligence begins.

The reliance on a singular voice introduces a profound tension regarding professional partiality. Camaraderie remains a significant influence over most people, a specialist may be unwittingly hesitant to describe conduct as irresponsible for fear of bringing the name of the profession into disrepute, particularly where the conduct is one that the said specialist can identify with or one where he can justify.[28] In the Gyan case[29] for example, a nurse’s mistaken diagnosis led to the permanent paralysis of a one year old child.

Rather than actually interrogating the prudence of such a practice without verification or supervision, the experts in the matter largely framed the conduct as a rational response to prevailing medical realities. It is quite striking that the conclusions reached from the witnesses effectively normalized a diagnostic approach rooted in probability rather than verification, and in doing so, shifted the focus from whether the process adopted was careful, to whether it was common. For a layperson without clinical vocabulary, reviewing these technical justifications is nearly impossible. This leaves them trapped in a system that often privileges professional convenience over patient safety.

The final and most significant hurdle is the financial burden involved in litigation. Financial constraints worsen the other hurdles. Medical negligence suits are inherently resource intensive. They demand hours of expert testimony, long court appearances, and specialized lawyers with expertise in both law and medicine (who often charge higher). Many claimants would consider the cost of suing as outweighing any benefit, leaving them discouraged. This reality fuels the common “Fa ma Nyame” (Leave it to God) philosophy. Many feel that litigation is a waste of time because it cannot undo an injury or bring back a deceased loved one.

Perhaps the most tragic hurdle is when a victim lacks the resources to seek help elsewhere and must depend on the very hospital that harmed them.  This disturbing paradox appeared in Darko v Korle-Bu Teaching Hospital.[30] A 14-year-old boy went in for surgery on a torn ligament in his right knee, but the surgical team operated on his left knee instead. While the court eventually cleared the hospital of negligence regarding the surgery itself due to a signed consent form,[31] it found a different, more chilling breach of duty.  The hospital’s breach rather arose when it refused to treat the boy after he sued. The refusal of care, apparently triggered by the lawsuit itself, exposed just how vulnerable medical negligence claimants can become. The implications are troubling. If a patient fears losing access to treatment by seeking accountability, many will simply remain silent.  That fear becomes even more significant where the institution involved is Korle-Bu Teaching Hospital, widely regarded as the country’s premier referral hospital.

The financial burden is made worse by the sheer unpredictability of these cases. beyond the difficulties associated with the Bolam test, claimants must still overcome hurdles involving consent, causation, and the “but for” test. Hospitals do not have to deal with this though. Hospitals, meanwhile, often have ready access to medical experts and legal teams, while patients may struggle even to obtain their own medical records without a court order or a formal RTI request, both of which carry additional costs.[32]

1. Comparative and Corrective Jurisprudence: Softening Bolam

While the Bolam Test has long favoured medical professionals, modern jurisprudence is shifting toward a more patient-centred approach, particularly where patient autonomy, obvious negligence, or unequal access to information is involved.

The biggest shift has occurred regarding what a doctor must tell a patient. In the past, if a body of doctors wouldn’t disclose a risk, the law wouldn’t require it. In the American case of Canterbury v Spence,[33] a patient who underwent spinal surgery was not warned about the risk of paralysis, which later occurred. The court rejected the idea that disclosure should be judged solely by medical custom. Instead, it held that the real question is what information a reasonable patient would need before making a decision. The same principle has been applied in the Canadian case of Reibl v Hughes.[34]

The English courts moved more slowly. In Sidaway v Board of Governors of the Bethlem Royal Hospital[35] the House of Lords  initially applied the Bolam Test to issues of disclosure, albeit with a strong dissent from Lord Scarman, who favoured a patient-oriented approach. That dissent eventually became the law in the 2015 case of Montgomery v Lanarkshire Health Board,[36] where the English Supreme Court refused to apply the Bolam Test in a matter where the claimant, a diabetic woman of small stature, was not informed of the risk of shoulder dystocia during vaginal delivery. The risk materialised, resulting in serious injury to the child. The Supreme Court held that the Bolam test does not apply to the issue of disclosure of risks. Instead, doctors are under a duty to take reasonable care to ensure that patients are aware of any material risks involved in a proposed treatment, and of reasonable alternatives. A risk is “material” if a reasonable person in the patient’s position would likely attach significance to it, or if the doctor is or should reasonably be aware that the particular patient would likely attach significance to it.

Similarly, while not related to consent per se, the Supreme Court of India, in the case of V. Kishan Rao v. Nikhil Super Speciality Hospital,[37] addressed a claim where the claimant’s wife was misdiagnosed with typhoid instead of malaria, leading to her death. Lower tribunal rejected the claim for lack of expert evidence. The Supreme Court reinstated liability, holding that expert testimony is not required in every case, particularly where negligence is apparent on the facts.

These decisions show that courts are increasingly willing to recognise that healthcare disputes cannot always be resolved by blindly deferring to professional opinion. One would hope that Ghanaian courts would be open to follow this approach and apply it to other parts of healthcare delivery where reasonable.

Another important limitation on Bolam emerged through the so-called Bolitho principle in Bolitho v City and Hackney Health Authority.[38] A child suffered respiratory failure after a doctor failed to attend despite being called, resulting in brain damage. The defence produced expert evidence that a responsible body of opinion would not have intubated. The House of Lords held that courts are not bound to accept expert opinion if it cannot withstand logical analysis.[39] As Ofoe JA observed  prior in the Dr. Sandys Arthur case , the fact that something is standard practice does not oblige a court to condone it when it is unreasonable. This logic appeared recently in the Ghanaian case of Chinbuah v. Attorney General (supra)[40] where a high-risk pregnant woman suffering from pregnancy-induced hypertension was subjected to a traumatic vaginal delivery without proper monitoring or informed consent. The defence insisted that the doctors, as experts, knew what was “best” for the patient. In response to this argument, the learned Justice stated:

“[85] Having heard the evidence and reviewed the testimony of the witnesses, I am of the respectful opinion that Defendant’s Counsel failed to address the issue under discussion. The issue is not whether vaginal birth was the best option than the caesarean section requested for by the deceased and the 2nd Plaintiff. The issue as I understand it is why the Caesarean section requested could not be carried out. I did not hear any reason from the defence as to why could not be done. “

The Court by this dictum indicated that it is not enough to just rely on expertise as authority without providing further basis. In fact, further in the judgment, the learned Justice stated:

[150] …. Dr. Barnor for instance testified that “the deceased went into spontaneous labour leading to a normal delivery in less than 24 hours after the induction process commenced”. In the opinion of the Court that testimony was not only unacceptable but it was an affront to common sense. I wonder how anyone can refer to a delivery that led to the death of the mother as “normal” …” (Emphasis is mine)

Without expressly mentioning Bolitho, the court effectively applied its logic: expertise cannot shield conclusions that are plainly unreasonable.

A further corrective is the doctrine of res ipsa loquitur[41] (“the thing speaks for itself”), long recognised in Ghanaian law. The doctrine allows negligence to be inferred where the circumstances strongly suggest that the injury could not ordinarily have happened without negligence. The burden then shifts to the defendant to show how it was not negligent.[42] Res ipsa will only lie where the causative facts of the injury are not known. Where these facts are known to the court, res ipsa will not apply since the details of how the Defendant was negligent are available.[43]

Ghanaian courts, following Scott v London & St Katherine Docks Co,[44] require three cumulative conditions: the thing causing the injury must have been under the defendant’s control, the accident must be one that ordinarily does not happen without negligence, and there must be no satisfactory explanation from the defendant.[45]

Importantly, Ghanaian courts have held that claimants need not specifically plead res ipsa before a court can apply it. Once the facts themselves strongly point toward negligence, the evidential burden may shift.[46] A classic example is  Asantekramo Alias Kumah v. Attorney-General[47] where the claimant underwent emergency surgery for an ectopic pregnancy but later lost her arm following complications from a blood transfusion administered during the procedure. Although she could not prove the specific particulars of negligence, the court held that the facts raised a strong likelihood of negligence.

As Taylor J. (as he then was) so tersely put it:

“It seems to me from the totality of the evidence that I must reject the suggestion of Dr. Poku, a medical man, that the bacteria got into the body of the plaintiff in a mysterious way. As a court of law and a tribunal dealing with facts, I am afraid, I must have no truck with the mysterious. The medical evidence adduced by the defendant shows in my view very clearly that there was nothing mysterious about how the bacteria entered the arm of the plaintiff.” (Emphasis is mine)

Similarly, in Asafo v. Catholic Hospital of Apam,[48] a case where a hospital lost a six-week-old baby. The court reasoned that such a young infant could not possibly have disappeared on its own, and in the absence of any satisfactory explanation from the hospital, negligence could properly be inferred. Res ipsa does not automatically establish liability. It merely shifts the burden of explanation. If the defendant provides a credible, logically coherent account consistent with the absence of negligence, the presumption is displaced and the claimant must still prove negligence on the balance of probabilities.

Some jurisdictions have gone even further.  South African courts have taken a further step, drawing adverse inferences against healthcare facilities when medical records are missing or incomplete, directly addressing the information asymmetry patients face.[49]

Elsewhere, reform has come through legislation rather than judicial innovation. New Zealand adopted a radically different model through the Accident Compensation Act 2001.[50] The Accident Compensation Act 2001 established a no-fault claims system administered by the Accident Compensation Corporation. Claimants need only show that their injury falls within the categories covered by the legislation. [51]

1. Conclusion: Institutional Reform and the Need for Recalibration

To bridge the gap between professional immunity and patient vulnerability, Ghana must move beyond the courtroom. The present system places too much weight on expensive, technical, and emotionally draining lawsuits, while ordinary patients often lack the resources to challenge hospitals and medical professionals effectively. The Medical and Dental Council (MDC), the primary regulatory body, remains underused by the average Ghanaian. Strengthening the MDC requires more than just increased funding; it necessitates a shift in its public identity from a professional fraternity to a transparent arbiter of public safety. Complaints procedures should be digitised and simplified, regional offices should be expanded beyond major urban centres, and disciplinary outcomes should be made publicly available. When people see that the regulator actively prunes poor practitioners, the culture of blind faith will naturally evolve into a culture of accountability.

Comparative experience also offers useful guidance. Ghana does not need to reinvent the wheel, but it must be careful not to simply copy other systems.  The various approaches mentioned represent different attempts to resolve the same underlying problem: how to protect patients without crippling medical practice.

Ultimately, medical negligence law is a negotiation between the need to compensate victims and the need to protect a profession that operates under constant uncertainty. Yet the current framework still tilts heavily in favour of institutional protection. Bolam, even when moderated by principles such as Bolitho and res ipsa loquitur, continues to create significant barriers for injured patients. Recalibration is not about lowering standards for clinicians. It is about ensuring that “professional judgment” does not become a procedural shield against scrutiny. The law should no longer resolve every ambiguity in favour of institutional authority. Instead, it must ensure that when a patient is harmed, the path to justice is clear, affordable, and fair.

[1] See the dictum of Ackah-Yensu, JA (as she then was) in the case of Edem Adinyira v. Scancom Limited & Anor (2017) JELR 107064 (CA)

[2] See Sections 12, 51, 72, 73,79 and 82 of the Criminal and Other Offences Act, 1960 (Act 29); See also the State v. Kwaku Nkyi [1962] 1 GLR 197-199

[3] Disciplinary action can be sought through making formal complaints to the relevant medical councils under the Health Professions Regulatory Bodies Act, 2013 (Act 857), to the Ghana Health Service under the Ghana Health Service and Teaching Hospitals Act, 1996 (Act 525) or to CHRAJ under the Commission on Human Rights and Administrative Justice Act, 1993 (ACT 456)

[4] A cause of action may also exist under the doctrine of res ipsa loquitor, but that is less often the case.

[5] Emily Finch and Stefan Fafinski, Tort Law (6th edn, Pearson 2017) 4.

[6] Other means do exist too. For example, if there are statutory regulations or customary procedures in the relevant industry or profession regarding what was to be done in the circumstances, then those procedures would apply.

[7] Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

[8] The test is also applied in other professional contexts. Thus, the standard of conduct for an architect, for example, would be determined by the reasonable conduct of other architects.

[9] Gyan v. Ashanti Goldfields Corporation [1991] 1 GLR  466-483

[10] Dr Sandys Arthur v Ghana Medical Association [2012] 52 GMJ 109 CA

[11] As quoted by Ackaah-Boafo J. (as he then was) in Dr. E.L.A. Chinbuah & Captain J.K. Nyamekye v. The Attorney General (2021) JELR 109048 (HC)

[12] The State v. Kwaku Nkyi [1962] 1 GLR 197-199

[13] ‘UKZN Academic Conducts Medical Law and Ethics Workshop in Ghana’ (reporting a workshop organised by the Ghana Institute of Advanced Legal Studies) Accessible from https://law.ukzn.ac.za/ukzn-academic-conducts-medical-law-and-ethics-workshop-in-ghana/, Accessed 18 April 2026.

[14] David M Studdert and others, ‘Defensive Medicine among High-Risk Specialist Physicians in a Volatile Malpractice Environment’ (2005) 293(21) JAMA 2609

[15] John Kwame Duodu and others, ‘Effect of Working Conditions on The Migration of Health Professionals from Ghana: Exploring How Salary, Job Security, and Working Conditions Motivate Ghanaian Health Workers to Seek Employment Abroad’ (ResearchGate, 23 April 2025) https://www.researchgate.net/publication/391050261 accessed 18 April 2026.

[16] Supra note 10

[17] Barnett v Chelsea & Kensington Hospital Management Committee [1968] 2 WLR 422

[18] See the dictum of Ackaah-Boafo J. (as he then was) in the Dr. E.L.A. Chinbuah & Captain J.K. Nyamekye v. The Attorney General case (supra) where the learned Justice observed that while negligence must be punished, doctors “face challenges each day in their work and deserve our commendation rather than condemnation generally”

[19] Ghana Statistical Service, 2021 Population and Housing Census: General Report Volume 3D – Literacy and Education (GSS 2022) Accessible from: https://statsghana.gov.gh Accessed 22nd March 2026.

[20] Ibid

[21] Ministry of Finance, ‘2023 Composite Budget for Ejisu Municipal Assembly’ (2023) https://www.mofep.gov.gh/sites/default/files/composite-budget/2023/AR/Ejisu.pdf accessed 22 March 2026.

[22] Boardman v Phipps [1967] 2 AC 46

[23] Pilmer v Duke Group Ltd (2001) 207 CLR 165.

[24] Elizabeth Vaah v Lister Hospital and Fertility Centre (Suit No HRCM 69/10| Unreported),

[25] Unfortunately, the author has been unable to obtain any concrete citation of this case, even an unreported citation but none exists amongst authors and researchers of the topic. Thus, reference will be made to secondary sources. See ‘Court Awards ¢2k Cost Against Nyaho Healthcare After Patient Sued Hospital for Medical Negligence’ MyJoyOnline (17 August 2021) https://www.myjoyonline.com/court-awards-%C2%A22k-cost-against-nyaho-healthcare-after-patient-sued-hospital-for-medical-negligence/ accessed 23 March 2026; Alhassan Aboagye, ‘Medical Records and Patient Rights: Lessons from Jehu Appiah v Nyaho Healthcare Ltd’ The High Street Journal https://thehighstreetjournal.com/medical-records-and-patient-rights-lessons-from-jehu-appiah-v-nyaho-healthcare-ltd/ accessed 23 March 2026.

[26] Note that Expert Evidence, while highly persuasive to the court, is not binding on the court. A court may refuse to apply expert opinion provided it provides reasonable justification. See the cases of Fenuku v. John-Teye [2001-2002] SCGLR 985, Hayford v. Tettey (substituted by) Larbi & Decker [2012] 1 SCGLR 417 and NDK Financial Services Ltd. V. Sakfos Farms Ltd., Michael Abu Sakara Foster, Mary-Lily Kafela Foster (2021) JELR 107023 (CA)

[27] See Section 58 of the Courts Act, 1993 (Act 459) as amended, Section 114 of the Evidence Act, 1975 (N.R.C.D. 323); Order 35, Rule 5 of The High Court Civil Procedure Rules, 2004 (C.I. 47).

[28] See further Ugochukwu Ehirim, ‘Escalating Medical Negligence in Commonwealth West Africa: Evaluating the Efficacy of Deterrence Mechanism’ (2025) 18 Jurnal Legalitas 94 | Accessible from: https://doi.org/10.33756/jelta.v18i1.30084 Accessed 23 March 2026.

[29] Gyan v. Ashanti Goldfields Corporation [1991] 1 GLR  466-483

[30] Frank Darko v Korle-Bu Teaching Hospital, Unreported Decision of 2008 Suit No. AHR 44/06

[31] The author feels the need to comment on this determination by stating that consent to surgical procedure implicitly assumes professional diligence and competence. Consent cannot and should not exculpate reckless conduct. It should however be stated in fairness that the court also pointed out the failure of the plaintiff’s lawyer to advance arguments on the scope of the consent given vis-à-vis the medical complaint reported by the boy.

[32] This refers to an application for the disclosure of information under the Right to Information Act, 2019, (Act 989)

[33] Canterbury v Spence 464 F 2d 772 (DC Cir 1972)

[34] Reibl v Hughes [1980] 2 SCR 880

[35] Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] UKHL 1

[36] Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430

[37] V. Kishan Rao v. Nikhil Super Speciality Hospital (2010) 5 SCC 513

[38] Bolitho v City and Hackney Health Authority [1998] AC 232

[39] See also Penny v East Kent Health Authority [2000] Lloyd’s Rep Med 41 (CA).

[40] Note 11

[41] Stephen Offei, The Law of Torts in Ghana: Texts, Cases & Materials (Stephen Offei 2014) 125

[42] Gee v Metropolitan Railway Co. (1873) LR 8 QB 161.

[43] Barkway v South Wales Transport Co Ltd [1950] 1 All ER 392.

[44] Scott v London & St Katherine Docks Co [1865] 3 H&C 596

[45] See the cases of Aboaku v. Tetteh [1962] 2 G.L.R. 165f S.C.; Yirenkyi v. Tarzan International Transport [1962] 1 G.L.R. 75; Nelson v. Klutse, Court of Appeal (full bench), 8 September 1969, unreported; digested in (1969) C.C. 142; Agogro v. Ago [1973] 1 G.L.R. 45; Dumgya v. Sports Council of Ghana [1974] 1 G.L.R. 429, C.A. and Kru v. Soaud Bros. & Sons [1975] 1 G.L.R. 46 at p. 49, C.A

[46] Kesiwah v. Jaja [1976] 2 GLR 280-288

[47] Asantekramo Alias Kumah v. Attorney-General [1975] 1 GLR 319-357

[48] Asafo v. Catholic Hospital of Apam [1973] 1 GLR 282-289

[49] See Goliath v Member of the Executive Council for Health, Eastern Cape (2015 (2) SA 97 (SCA)) and MEC for Health and Social Development Gauteng v DZ (2017 (12) BCLR 1528 (CC))

[50] Accident Compensation Act 2001 (NZ)

[51] Ibid, Section 20

 

 

 

BY; Kekeli Dzeketey, Esq.

 

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