Written by: Nickolas Tan
Introduction
Recent amendments to the Laws in Singapore relating to the conduct of medical professionals reflect an attempt to clarify the necessary steps medical practitioners must take when obtaining informed consent and determining the standards of care reasonably expected of them. These changes, introduced through The Civil Law (Amendment) Bill,[1] were passed by Parliament on the 6th of October 2020 in response to a growing uncertainty amongst medical professionals regarding what they should and should not be expected to do when interacting with patients. The Bill, introduced a new subsection in Chapter 43 of the Civil Laws Act[2] specifically laying out the standard of care required in relation to medical advice. Thus, we will explore how these amendments have come about, and most importantly, the effects they will have on clarifying the laws which dictate doctor-patient relationships when seeking medical advice.
History of Medical Negligence in Singapore
The tort of negligence arose out of the English common law in order to compensate deserving victims for any damage suffered from breach of a duty owed to them. In order for a successful claim to be brought, claimants must establish four key elements, namely that a duty of care is owed, this duty has been breached, the damage caused resulted from the breach of this duty, and the damage was too remote.[3]
With regards to specialised professionals such as doctors, the courts have focused particular attention around the element of breach, setting out specific standards of conduct expected of individuals with specialised skills and how to determine if these standards have not been met.
In the context of medical negligence in Singapore, an objective test for standards of conduct was originally set out in Bolam v Friern Hospital Management Committee.[4] Judge Mcnair held that the defendant would not be found liable of negligence if a “responsible body of medical men skilled in that particular art”[5] agreed with the defendants conduct even if “there was a body of competent professional opinion which might adopt a different technique.”[6] This standard was later refined in Bolitho,[7] which imposed a two stage logical test for determining whether the sanctioned medical conduct was in fact reasonable and logical. The Bolam-Bolitho test therefore set out the locus classicus for the standard expected by medical professionals in all three of their main practise areas: diagnosis, treatment, and advice.[8]
Despite the UK-based criticisms of this test by some in the UK, most notably by Lord Scarman in his dissent in Sidway v Bethlem Royal Hospital Governors[9] [Sidway] where he favoured a “prudent patient” test, the courts in Singapore were unwilling to dismiss the application of the Bolam-Bolitho test in determining whether the standard of care had been breached. The decision in Dr Khoo James & Anor v Gunapathy d/o Muniandy [10] [Gunapathy] demonstrates their strict adherence to this doctrine owing to the belief that the discretion of the judiciary could at times be inadequate with regards to specialist areas such as medicine[11]. This was despite courts in Australia[12] and Malaysia[13] favouring the approach taken by Lord Scarman.
This position however was altered with respect to the provision of medical advice due to the decision of the UK Supreme Court in Montgomery,[14] which established a new test for the disclosure of medical advice. The Montgomery test established the need for doctors to ensure patients are aware of any material risks involved in a procedure, setting out the test for materiality in the following terms:
‘in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’[15]
Although the courts in Singapore did not immediately adopt this approach, the shift to the Montgomery test for medical advice was eventually confirmed in 2017 in the case of Hii Chii Kok v Ooi Peng Jin London Lucien and another.[16] This case clarified that a modified version of the Montgomery test would govern the standards in Singapore as regards the conduct of doctors providing medical advice, the modifications made with the aim of improving patient autonomy. CJ Sundaresh Menon formulated the following 3-stage test:[17]
“Was the information material from the perspective of a reasonable patient in a particular patient’s position? Alternatively, was it information which would have been considered relevant and material by that particular patient for individual-specific reasons of which the doctor knew or should have known?
Second, was this information which the doctor was aware of at the material time, and if not, was the doctor negligent (under his duty of diagnosis, not advice) in not obtaining or having this information?
Third, if the information was material and within the doctor’s knowledge, was the doctor reasonably justified in withholding the information?” [Possible scenarios where withholding information might be justified included cases of emergency or cases where giving the patient the information could cause him significant harm].
However, the modified and patient-focused Montgomery test was followed by a slew of litigation and warnings from medical professionals who claimed they would resort to defensive medicine when providing patients with information. In response, Parliament passed the Civil Laws (Amendment) Bill[18] to provide greater clarity regarding the standards required of medical professionals in the provision of medical advice.
Reasons for Change
The amendment to the law stemmed not only from growing apprehension within the medical community, but also from a need to provide greater clarity with regards to the standards expected for medical advice and thus prevent a floodgate of litigation from arsing. This danger was recently illustrated by the case of Singapore Medical Council v Lim Lian Arn,[19]where the Supreme Court set aside the decision of the High Court that the defendant had fallen below the expected standards of a medical professional due to his failure to inform his patient of the possible risk involved in a procedure which involved a steroid injection.
The initial decision by the High Court had led to ‘More than 4,000 members of the medical community’ signing a petition asking Health Minister Gan Kim Yong for the ruling to be examined.[20] With numerous members of the medical community desiring greater clarity on terms of what was expected of them, and many contemplating resorting to litigation-shielding defensive medicine.
These fears were echoed by Second Minister for Law Edwin Tong in his address to Parliament on the 6th of October, where he spelled out the reasons for the tabled amendment bill, and highlighted the rising costs and lower quality of healthcare that could result from defensive medicine.[21] Mr Tong also focused on the need to provide greater clarity in order to ensure that the relationship between doctors and patients, which had been called into question in recent years, would not be eroded on account of its heavy reliance on trust.
Effects of Amendment
The amendment which inserts a new section into Chapter 43 of the Civil Law Act[22] effectively creates a statutory explanation of the standards required with regards to the provision of medical advice. It provides clear yardsticks for medical professionals to rely on, to ensure that they are meeting the acceptable standards through legislation as opposed to common law judgements.
The amendment effectively merges the principles of the Bolam-Bolitho and Montgomery tests, requiring medical professionals to:
1. Act in a manner ‘accepted by a respectable body of medical opinion (called in this section the peer professional opinion) as reasonable professional practice in the circumstances’[23] as long as this opinion is logical.
2. Provide the patient with information that ‘a person in the same circumstances as the patient … would reasonably require’[24] and information that a ‘healthcare professional knows or ought to reasonably know (in accordance with subsection (3)) is material to the patient’[25] given the patient’s medical history in order for the patient to make an informed decision to continue with the procedure or follow the advice.
3. Provide any information relating to any questions and concerns posed by the patient during consultation.[26]
This achieves a balancing of protection for medical professionals from unwarranted litigation, with maintaining patient autonomy by placing equal responsibility on both parties to ensure that the patient is sufficiently informed.
Implications for the Future
Although some might argue that the new amendment which relies on a body of competent medical opinion as in Bolam-Bolitho is a return to medical paternalism,[27] the clearer standards set out by the new amendment would in fact place a joint responsibility on medical practitioners and patients to ensure that the best medical advice is provided. Not only will the amendment deter doctors from resorting to defensive medicine out of the fear of litigation, it would also alleviate the pressure on the Singapore Medical Council (SMC) disciplinary tribunal by reducing the ambiguity in what constitutes a breach of standards and in turn reduce the number of cases brought before the tribunal in the long run.
However, despite the greater transparency which the amendment brings, the heavy reliance on opinions which although shared might not be the most appropriate, and the inherent ambiguity associated with relying objectively on what doctors and patients ought to see as “reasonably require(d)” and “material”,[28] will continue to place the pressure on the judiciary to develop the law further through case judgements. This might inadvertently lead to greater ambiguity in the future as judges are left to interpret for themselves the importance of specific information. Despite this, judges will likely be able to draw from the knowledge of those in the medical community to make informed decisions with regards to these matters.
Conclusion
The new amendment brings with it a welcomed clarity to an area of medical law that in recent years has come under heavy scrutiny. It takes the rules relating to the standards required of medical professionals with regards to the provision of advice out of the hands of the common law and provides them in the form of legislation in order to reduce the ambiguity surrounding them. Although the reliance of the new rules on opinions and limited judicial discretion might lead to a continued degree of ambiguity, the amendment has effectively refined the ideas in Bolam-Bolitho and Montgomery in order to create a firm middle ground between the two. Therefore, despite the possibility of further alterations in the future, there is little doubt that the new amendment will be beneficial to the development of the clearer standards expected of those in the medical profession.
Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.
[1] The Civil Law (Amendment) Bill (2020) 33/2020 [2] Civil Laws Act 1999, s 43. [3] Kirsty Horsey & Erika Rackley, Tort Law (6th edn, OUP 2019) p.41-42 [4] Bolam v Friern Hospital Management Committee (1957) 1 WLR 582 [5] Ibid [586] [6] Kasiviswanathan Shanmugam, ‘Testing the Bolam Test: Consequences of Recent Developments’, Singapore Medical Journal (2002) 43(1)7-11 [7] Bolitho v City & Hackney Health Authority (1997) ALL ER 71 [8] Keith Jieren Thirumaran, ‘The Disclosure of Medical Risks in Singapore and the case of Montgomery’, Singapore Law Review Juris Illuminae (2015/16) 7 [9] Sidaway v Bethlem Royal Hospital Governors, [1985] AC 871 [10] Dr Khoo James & Anor v Gunapathy d/o Muniandy, [2002] 2 SLR 414 [11] Ibid [144] [12] Rogers v Whitaker, (1992) 175 CLR 479 [10] [13] Foo Fio Na v Dr Soo Fook Mun & Anor, [2007] 1 MLJ 593 [14] Montgomery v Lanarkshire Health Board [2015] UKSC 11 [15] Ibid [87] [16] Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38 [17] Supreme Court Media Room, ‘Case Summaries: Hii Chii Kok v Ooi Peng Jin London Lucien and another’ (gov.sg website, 2017) <https://www.supremecourt.gov.sg/news/case-summaries/hii-chii-kok-v-ooi-peng-jin-london-lucien-and-another> accessed 15 November 2020 [18] See (n 1) [19] Singapore Medical Council v Lim Lian Arn [2019] SGHC 172 [20] Rei Kurohi, ‘Case of no alert on side effects’ (Straits Times Article, 2019) <https://www.straitstimes.com/singapore/health/case-of-no-alert-on-side-effects> accessed 15 November 2020 [21] Singapore Parliamentary Debates Official Report Vol 95 (6 October 2020) [22] See (n 2) [23] See (n 1) s.37 (1)(a) [24] Ibid s.37 (2)(a)(i) [25] Ibid s.37 (2)(a)(ii) [26] Ibid s.37 (3)(a) [27] Albert Lee, ‘Bolam’ to ‘Montgomery’ is result of evolutionary change of medical practice towards ‘patient-centred care ’, BMJ Postgraduate Medical Journal (2017) 93(1095) 46-50 [28] See (n 22 & 23)
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