Singapore: Medical Malpractice - Singapore Court Adopts New Standard Of Care Test

Last Updated: 22 May 2017
Article by Ian Roberts and Siobain Creaney

In a landmark decision, the Singapore Court of Appeal has adopted a new legal test to determine the standard of care in relation to the provision of medical advice.

Introduction

Until now, the position in Singapore was as set out in Khoo James and another v Gunapathy d/o Muniandy and another appeal [2002] 1 SLR(R) 1024  ("Gunapathy") which followed  the principles established in the English decisions of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and Bolitho v City and Hackney Health Authority [1998] AC 232.  Put simply, the Bolam and Bolitho tests (as they are commonly known) provide that a doctor will meet the requisite standard of care if he has acted in accordance with the practices and opinions of a responsible body of medical practitioners skilled in that particular area (provided such practices and opinions are logically defensible).

The application of Bolam has, however, been under attack in key common law jurisdictions around the world, particularly in relation to the provision of medical advice, and the English Supreme Court decided in Montgomery v Lanarkshire Health Board [2015] UKSC 11 that Bolam has no impact on what a doctor or medical practitioner should advise a patient. Instead, the court in Montgomery formulated a different test, favouring a more patient-centric approach, and emphasising the right of the patient to have sufficient information to make an informed decision. 

It is this very issue which came before the Singapore Court of Appeal in Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38.

The facts

Clement Hii Chii Kok (the "Patient") had pancreatic lesions which were diagnosed as possible neuroendocrine tumours and various treatment options (including surgery and the option to wait and have a further scan in six months' time) were presented to him.  In the end, the Patient opted to surgically remove the lesions.  The post-operative histopathology indicated that the Patient's pancreas had hyperplasia and not possible neuroendocrine tumours after all.  In any event, the patient appeared to be recovering well after surgery and was, at his request, discharged from hospital.  Subsequently, the Patient developed complications and had to undergo further operations.

The Patient alleged, amongst other things, negligent diagnosis and negligent advice and brought proceedings against his surgeon and the National Cancer Centre of Singapore Pte Ltd.  The High Court Judge dismissed the claim in its entirety and the Patient then appealed to the Court of Appeal.  He submitted, amongst other things, that the advice he was given was inadequate to enable a reasonable patient to make an informed decision and submitted that the test that ought to be applied is that as set out in Montgomery

The decision of the Court of Appeal

The Court of Appeal agreed with the High Court and did not consider that negligence had been made out.  However, it also took the opportunity to provide a degree of certainty and clarity to the law and to reach a firm conclusion on what the legal test should be in respect of the duty to advise.  In short, the Court of Appeal decided that, whilst Gunapathy still applies in the context of diagnosis and treatment, it is appropriate to move towards a somewhat more patient-centric approach in respect of the information and advice that doctors provide to patients.  Applying the Bolam test to determine what and how much information to impart to the patient would allow a doctor to withhold whatever he wishes so long as some of his peers would have done the same.  Such an outcome is incompatible with modern principles of patient autonomy.

The Court considered that the three aspects of medical care, diagnosis, advice and treatment, should not be treated as monolithic and capable of being assessed with reference to a single test.  There is a material difference in the dynamics of the doctor-patient relationship in the giving of advice and, unlike diagnosis and treatment, the patient is not (or need not be) a passive recipient.  The patient ultimately retains the power to decide which course to pursue.  Further, the level of education and access to knowledge of the ordinary Singaporean has evolved over time.    

The Court therefore considered that the legal test should reflect the principle of patient autonomy (which had much less emphasis placed upon it at the time Bolam was developed) and the principle of beneficence.  There must be a balance between both principles (as well as a balance between the doctor's perspective and the patient's perspective) and neither should dominate the other.

As a result, the Court considered that the standard of care should be a modified version of the test set out in Montgomery

The modified Montgomery test

The Court formulated a three-stage test:

Stage 1: At the first stage, the patient must identify the exact nature of the information that he alleges was not given to him and establish why it would be regarded as relevant and material.  The information which doctors ought to disclose is (a) information that would be relevant and material to a reasonable patient situated in the particular patient's position; or (b) information that a doctor knows is important to the particular patient in question.

A doctor is not under a duty to provide his patient with an encyclopaedic range of information and it should not be a mere "information dump".  Instead, a doctor's duty to advise only covers that which would enable the patient in question to make an informed decision including information relating to:

  1. The doctor's diagnosis of the patient's conditions;
  2. The prognosis of that condition with and without medical treatment;
  3. The nature of the proposed medical treatment;
  4. The risks associated with the proposed medical treatment; and
  5. The alternatives to the proposed medical treatment, and the advantages and risks of those alternatives.

Stage 2: The second stage is to determine whether the doctor was in possession of that information.

Stage 3: The third stage is to examine the reasons why the doctor chose to withhold the information from the patient and whether the doctor is justified in doing so having regard to the standards of a reasonable and competent doctor (albeit this should not necessarily be assessed using the Bolam test depending on what those reasons are).  Examples of reasons as to why a doctor could chose to withhold information include waiver, emergency treatment and therapeutic privilege.

The test is intended to recognise that the patient has a prima facie right to the information reasonably required to enable him to make a decision and the ultimate question therefore seems to be whether the doctor was justified in withholding that information. 

Comment

This is a considered decision which sets out in great detail the new test for determining the standard of care in relation to the provision of medical advice and one which strikes a balance between the interests of the doctor and the patient. 

Concerns have been raised that a departure from Bolam will lead to an increase in the cost of healthcare, the frequency of litigation and the practice of defensive medicine.  However, the Court saw no reason to believe that a "carefully calibrated shift in the standard of care" is likely to lead to such drastic increases and concerns in relation to defensive medicine are more relevant to allegations of diagnosis and treatment. 

Medical Malpractice - Singapore Court Adopts New Standard Of Care Test

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions