Abstract
The standard of care to which doctors are held in medical practice is based on the peer professional standard in most common law jurisdictions. However, when it comes to the duty to inform the patient of risks in proposed treatment, courts across the common law world have adopted a prudent patient standard to strike a better balance between beneficence and autonomy. Instead of allowing doctors to control the information provided, courts assess what risks are material to a reasonable patient. Singapore is the most recent jurisdiction to follow suit, but the common law development may be short-lived following legislative intervention. This article critically analyses the law on the standard of care in medical negligence, arguing that the legislative reform was based on a misconception of the law. It highlights some of the potential difficulties in implementing the legislative framework.
Introduction
The standard of care in medical negligence litigation has long been a subject of concern among medico-legal professionals and has also been the subject of considerable academic debate.
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On the one hand, there is fear of defensive medicine, rising medical costs, and undermining of professional medical judgement if doctors are too easily found negligent. On the other, there is concern that doctors have too much power over patients, especially when it comes to the duty to inform and advise patients to enable them to exercise some degree of autonomy and be actively involved in their own healthcare decisions. The classic test for the standard of care in medical negligence is found in the jury direction of a trial judge in Bolam v Friern Hospital Management Committee,
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in which McNair J stated: I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
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Thus, whether doctors are negligent depends on whether they have adhered to accepted custom in the profession (the ‘custom test’) 4 or whether they are supported by peer professional opinion (the ‘peer professional’ test). 5 In effect, the profession regulates itself and sets its own standards. 6
The Bolam test has been criticized for encouraging medical paternalism and diminishing patient autonomy when it comes to exercising choice and consenting to treatments. 7 Courts around the common law world, acknowledging the infelicity of applying Bolam to the doctors’ duty to advise, have rejected the peer professional test when determining negligence with respect to the duty to advise. 8 Instead of enquiring what information or advice a responsible body of peer professionals would give, the enquiry is turned to what information or advice a reasonable patient would find material. This test may be described as the ‘reasonable patient’ test or ‘prudent patient’ test. 9 Instead of peer professionals setting the standard of disclosure, doctors must inform patients of material risks, the materiality of which is assessed from the perspective of prudent patients. Underlying this shift from the peer professional to the prudent patient test is an increasing awareness and emphasis on patient autonomy. 10
This prudent patient test was first applied in Singapore by the Court of Appeal in 2017 in Hii Chii Kok v Ong Peng Jin London Lucien and another. 11 Soon after that decision, the test became a lightning rod for reform following a medical complaints case in 2019 in which a doctor was sanctioned for not informing a patient of a minor risk in a routine procedure. 12 The medical profession was understandably concerned by the harshness of the judgement in that particular misconduct case, 13 but the concerns engulfed the broader principles governing the medical duty to advise and the prudent patient test. Following strong public comments by doctors and extensive media coverage, the Government established a Workgroup to review the law urgently. The Workgroup recommended that the standard of care for the medical duty to advise be legislated with a view to balance the interests of doctors and patients by maintaining elements of the peer professional test. Subsequently, the Civil Law Act (Cap 43, 1999 Rev Ed) was amended to include a new s37. 14
The rush to legislate has resulted in a statutory regime that is far from being a panacea. It raises legal and philosophical objections as it purports to roll back the prudent patient test and tilt the balance in favour of doctors when it comes to the duty to advise. 15 This does not sit comfortably in an age where the doctor–patient relationship is undergoing significant transformation to foster a more equal relationship and a collaborative approach to healthcare. The legislation also raises some challenges in interpretation and application due to the internal inconsistencies born out of the attempt to square the circle on the duty to advise.
There is deep-seated suspicion among the medical profession in Singapore of the concept of the reasonable person, or more specifically, the reasonable patient, as a benchmark for the standard of care. There is a strong preference to leave the standard of care to the medical profession. This article begins by setting out and defending the reasonable person test, explaining how the concept of reasonableness is ubiquitous and indispensable in law. Legislation aims for uniformity and certainty. These are desirable goals in general, but the standard of care involves applying universal standards to particular circumstances. That necessitates flexibility and intelligible differentiation. The article then reviews the key medical negligence and medical complaints cases in Singapore that gave rise to the impetus for reform before critically analysing the new section 37 of the Civil Law Act.
Standard of care
The standard of care by which a defendant is judged in negligence is that of a reasonable person in the defendant’s position. 16 The reasonable person allegedly was born in the cradle of negligence, 17 but has become ubiquitous across the spectrum of law when judges have to determine expected standards of behaviour, whether in tort law, contract law, trust law, administrative law, or criminal law. 18 The reasonable person test defies precise definition, remaining sufficiently malleable for judges to balance the scales of justice in individual cases and to develop the law in step with evolving standards. 19
The reasonable person test has aptly been described as ‘little more than the anthropomorphic conception of justice as perceived by judges or juries’. 20 This is problematic for three reasons. First and foremost, anthropomorphic justice dispensed by an ethnocentric judiciary is not ideal. The historical lack of diversity among judges risks justice being dispensed according to the personal values of the judge, which may not reflect broader conceptions or expectations of justice. Critical legal scholars have demonstrated that apparently neutral concepts such as the reasonable person may discriminate against certain groups, based on race, culture, class, or gender. 21 Historically, most judges and lawyers were male, came from the majority race or culture, and generally belonged to the upper social class. 22 Their worldview, shaped by their lived realities, frequently did not match that of other segments of society. The UK Judiciary has acknowledged this, noting, ‘In many courts and tribunals there has been a wide gulf in social background and life experience between the parties and the judges making decisions’. 23
Second, the inherent flexibility in the standard of care allows activist judges to shape the law according to their individual values and policy objectives. The development of medical negligence law in post-War England is a case in point. In an insightful article, three anaesthesiologists analysing Roe v Ministry of Health
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demonstrated how McNair J, who was the trial judge in both Roe and Bolam, as well as Lord Denning, who was on the Court of Appeal between 1948 and 1957, steered the law in favour of doctors.
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The authors of the article observed, ‘A reluctance to find against doctors in negligence cases became a Denning characteristic’.
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In upholding McNair J’s judgement, Lord Denning concluded his opinion in Roe with this caution: But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.
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Third, the tort of negligence today has expanded considerably since the nineteenth century when the reasonable person was born. Many claims today involve complex financial transactions, technical matters, professional judgement, and policy considerations. Judges do not possess the necessary knowledge to judge whether the defendant has acted reasonably in designing the algorithms for a magnetic resonance imaging scanner to identify abnormalities in images; to assess risks in cryptocurrency trading; or to determine which complex medical treatment is optimal for a patient. Forget the man on the Clapham Omnibus. 28 Expert evidence is required both to help judges understand the particular issue on which they are adjudicating and to inform the judges of reasonable standards within the industry or profession. However, it is crucial that the experts stay within their domain of expertise, remain impartial, and refrain from usurping the court’s role in determining the ultimate issue. 29
There are two interconnected questions that a court must consider when assessing whether there has been a breach of duty. They are the standard of care by which the defendant is to be judged and the reasonableness of the defendant’s response to the particular risk. The standard of care at the abstract level is a matter of law; once determined, it sets a precedent. For example, courts have held that the standard of care of a practitioner of Traditional Chinese Medicine is that of practitioners in that field; 30 that inexperience does not lower the standard; 31 that children are judged by a standard appropriate to their age; 32 that an ordinary person who carries out certain household repairs may be held to the standard of a reasonably competent tradesperson. 33
Whether there has been a breach of duty is a fact-sensitive enquiry into whether the defendant had acted reasonably in the face of a reasonably foreseeable risk. What may be a reasonable response in one case may not be so in another case due to the vagaries of the unique circumstances of each case. In coming to its judgement on breach, courts engage in a comparative risk–benefit analysis, balancing, among other factors, the probability of harm, the gravity of harm, the practicability of avoiding the harm, the justifiability of taking the risk, and the social utility of the activity. 34 Each case is unique, and a finding of negligence in one case does not mean that there must be a finding of negligence in another similar case.
What is perhaps unusual about medical negligence is that the standard of care and breach of duty enquiries are often fused, or at least are seen to be so by doctors. Medical negligence is nearly always about whether the doctor has failed to achieve a certain level of competence in diagnosis and treatment or has made the wrong decision, whether with respect to treatment options or advice. Doctors fear that once a court finds a medical act or decision to be negligent, they will have to act according to that legal prescription in the future instead of relying on their own medical judgement; in other words, they will practise defensive medicine. 35
This fear, while understandable, is arguably misplaced, as breach of duty is a question of fact. 36 Just because a doctor is found negligent in one instance does not mean that another doctor will be found negligent for doing something similar so long as the facts justify the doctor’s actions. Equally, and perhaps more importantly, just because a doctor is not found negligent in one instance does not mean that another will be similarly absolved for something similar. Thus, legislating the standard of care will not provide the ex ante certainty that doctors seek.
The Bolam test has been the subject of considerable criticism, which will not be repeated here. 37 However, there is one philosophical problem with Bolam that merits close examination as it is especially pertinent to the duty to inform. Applying the Bolam test to the fused enquiry of standard and breach results in the reasonableness of the doctor’s conduct being judged sociologically or positively, rather than ethically or normatively. The question is simply whether the doctor’s conduct accords with acceptable practice. This hands judgement of medical negligence to the expert because judges are not allowed to question whether acceptable practice itself is adequate. 38
There is a respectable lineage of debate on whether the reasonable person test should be assessed ethically or sociologically. 39 The ethical enquiry asks what a reasonable person ought to do, while the sociological enquiry asks what the reasonable person would do. Montrose, commenting in the wake of the Bolam judgement, pithily observed that ‘it is important to distinguish between average practices and average standards, between what the ordinary man does and what the ordinary man thinks ought to be done’. 40 This distinction is apposite to professional negligence. Montrose again: ‘Experts may blind themselves by expertise. The courts should protect the citizen against risks which professional men and others may ignore’. 41 In the period following Donoghue v Stevenson, 42 English law had clearly adopted the ethical standard to assess negligence. 43
This necessarily involves extra-legal considerations, raising key questions of methodology and content in incorporating such considerations. Dunn et al. put it pithily: The challenge for the court then becomes one of determining precisely what extra-legal anchoring work ought to be achieved when this legal fiction is invoked within the legal reasoning process. For our purposes, this gives rise to two key questions that need to be settled in any thorough analysis of the Montgomery case: (1) what legal approach is being adopted in this formulation of the standard in the law of consent to treatment, and (2) what substantive justification, if any, could underpin and defend a criterion that is formulated in this way?
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As noted above, extra-legal considerations were influential in the development of medical negligence in the post-War period. Leaving aside such political considerations, it remains necessary to identify the underlying normative value or values in applying ethical standards. Miller and Perry offer three ethical principles that may be relied on to assess reasonableness in negligence: ‘welfare maximization, equal freedom, and the feminist ethic of care’. 45 It is beyond the scope of this article to delve into these principles. However, some brief observations are made to explain the existing tensions on the standard of care as well as why there has been a judicial shift on the medical duty to advise, emphasizing patient autonomy and dignity. The feminist ethic resonates with this shift even if it has not been relied on explicitly in the cases. Welfare maximization is based on the economic analysis of law and is utilitarian in nature. This philosophy has a strong hold on the tort of negligence in the United States, 46 tracing back to the calculus of negligence introduced by Learned Hand J, balancing the probability and gravity of harm against the burden of avoiding the risk. 47 However, the economic analysis approach diminishes the human element in medical negligence cases where choices involve more than purely utilitarian considerations.
By contrast, the feminist ethic of care reconceptualizes negligence, reorienting it from a negative standard of reason and caution to a positive standard of caring and concern.
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Bender, one of the leading feminist theorists on tort law, draws on an earlier work by Gilligan who had demonstrated through empirical research that women’s moral compass prioritized ‘responsibility and contextuality’, while men prioritized ‘rights and abstract justice’.
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According to Bender, Tort law needs to be more of a system of response and caring than it is now. Its focus should be on interdependence and collective responsibility rather than on individuality, and on safety and help for the injured rather than on ‘reasonableness’ and economic efficiency.
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The feminist approach recognizes the interconnectedness of the doctor and patient, respecting the inherent moral value of medical beneficence and patient autonomy.
The doctor–patient relationship should be one of trust and partnership. 51 The contemporary reality, however, is often different. In a world of managed healthcare and limited resources, doctors struggle to develop strong relationships with their patients as they simply do not have the time and resources. 52 Patients today have much greater access to information, and thus are more sceptical of medical advice. They are also more aware of their rights, seeking more advice to make informed decisions. This leads to friction between doctor and patient, and in some cases, results in defensive medical practice as doctors fear complaints or litigation against them by dissatisfied patients. At the same time, there is growing emphasis on patient autonomy and developing a collaborative approach to patient care and shared decision-making. The medical duty to advise is at the epicentre of this storm.
Medical negligence
The Bolam test leaves the determination of negligence in the hands of the professionals. The problem is exacerbated because McNair J reduced the reasonable person test to an ordinary person test: 53 a doctor will not be found negligent ‘if he exercises the ordinary skill of an ordinary competent man exercising that particular art’. 54 The ethical standard is reduced to a sociological standard, allowing medical professionals not only to judge themselves, but also to judge themselves not on the basis of how they should act but on how some of them actually act. Courts abandoned their judicial function of adjudication by deferring unstintingly to the defendants’ medical experts. 55
Recognizing this risk, the House of Lords in Bolitho v City & Hackney Health Authority, 56 emphasized that judges should not ignore the requirement in Bolam that the expert medical opinion must be respectable, reasonable, and responsible. Bolitho did not go so far as to hold that judges may prefer one body of medical opinion over another. However, they could ‘hold that the body of opinion is not reasonable or responsible’ if it were ‘demonstrated that the professional opinion is not capable of withstanding logical analysis’. 57 This logical defensibility addendum to Bolam was applied in Singapore in Dr Khoo James v Gunapathy d/o Muniandy, 58 in which the Court of Appeal explained that the courts could only scrutinize the process and not the conclusion of medical experts. It articulated a two-stage test. First, judges must be satisfied that the medical experts had considered ‘the comparative risks and benefits related to the matter’ and reached a ‘defensible conclusion’. 59 Second, for the conclusion to be defensible, it must be ‘internally consistent’ and ‘not fly in the face of proven extrinsic facts relevant to the matter’. 60
Despite its shortcomings, the Bolam/Bolitho test, judiciously applied, is an appropriate ‘heuristic’ 61 to determine whether a doctor has acted negligently, except with respect to the doctor’s duty to inform patients of risks inherent in any procedure or alternative option. Bolam/Bolitho is justified on two grounds. The judge is not competent to adjudicate on medical matters without expert guidance and it is accepted that there may be several legitimate schools of thought on treatment methods and alternative options. Thus, it would be unfair to find negligent a doctor who conforms to an accepted practice.
These arguments do not apply to the duty to inform. The information required by a patient does not turn solely on medical expertise but also on what a patient would reasonably require. There is no way of applying a comparative risk/benefit analysis without undermining patient autonomy. As the court in Hii Chii Kok pithily observed, the Bolam/Bolitho test is incompatible with any notion of informed consent. 62 It is also absurd to speak of different schools of thought on what information is material to the patient. There is only one perspective that matters – information that is material to the reasonable patient.
Not surprisingly, none of the major common law jurisdictions apply Bolam to the duty to inform, instead applying variations of a prudent patient test.
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The UK Supreme Court in Montgomery v Lanarkshire Health Board set it out thus: The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, 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.
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Montgomery was adopted in Singapore in Hii Chii Kok v Ong Peng Jin London Lucien and another, 65 with some modification. 66 Hii Chii Kok offers a carefully reasoned framework that balances beneficence and autonomy. The court sets out three sequential questions. 67 First, was the information objectively material? This is answered based on the prudent patient test. Second, did the doctor know of the risks and alternatives, and if not, ought the doctor have known? Here, the court reverts to the Bolam/Bolitho test to determine whether the doctor ought to have known of the risks and alternatives. A doctor who is not aware or has no reason to be aware of the risks and alternatives judged by peer professionals is not negligent. Third, if the first two stages are satisfied, the doctor is obliged to disclose the information unless there is reasonable justification, which includes necessity, express waiver of the right to be informed by the patient, and a limited therapeutic privilege.
The court takes pain to highlight that a commonsense approach must prevail, reassuring doctors that remote risks of severe adverse outcomes, including death, may not always be material information that needs to be disclosed as reasonable patients would always be aware of the remote possibility of death in any procedure.
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Similarly, the court notes that obvious risks that laypersons should be aware of need not be disclosed.
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Peer professional standards remain relevant: all the court has done is to adapt the professional negligence test for the purpose of the duty to inform and advise. Menon CJ stated, It bears reiterating that in applying this three-step test in the context of advice, we are not departing from the general professional standard. Rather, the test outlined above is intended merely to reflect – in the form of a more specific test tailored to the context of advice – what an ordinary and reasonable doctor would have done in the circumstances. We prefer this approach over applying the Bolam test and Bolitho addendum as the default approach in this particular context in order to give recognition to the fact, previously overlooked, that the patient has a prima facie right to the information reasonably required to enable him to make a decision. The ultimate question therefore is whether the doctor was justified not to furnish that information. To the extent the defendant doctor, in withholding that information, acted in accordance with what the court finds an ordinary and reasonable doctor would and should have done, he would not be considered to have been negligent in advising the patient.
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The ‘particular patient’ limb of the material risk test has given rise to an ill-informed concern that a subjective test applies. The provenance of this test lies in the landmark Australian High Court decision of Rogers v Whitaker, 71 whose approach was adopted in Montgomery. The claimant in Rogers was partially blind in one eye. Prior to the surgery, she repeatedly asked whether the surgery posed any risk to her good eye as she did not want to risk losing her eyesight completely. She was adamant that if there was any risk at all to her good eye, she would not proceed with the surgery. There was a small risk, assessed by the court as 1 in 14,000 of sympathetic ophthalmia, which was not disclosed to the patient. The risk materialized and the claimant lost her sight in both eyes. It was in that context that the court referred to the ‘particular patient’ as the particular risk in that case was relevant and material to the claimant.
However, in either case, the test remains objective. For example, a risk of a negligible tremor in one’s little finger is unlikely to be a material risk to a reasonable patient, but it would objectively be material to a concert pianist. That both limbs are objective is acknowledged in Hii Chii Kok. 72 Even when the court explored the relevance of ‘idiosyncratic reasons’ of certain patients, which may give a subjective gloss to the test, it reiterated that the test ‘is ultimately still objective’. 73 The over-emphasis of the particular patient limb of the prudent patient test has distorted what is essentially an objective test based on commonsense reasonableness.
Hii Chii Kok departs from Montgomery in one significant respect. Unlike Montgomery, which refers to the duty to inform of risks in recommended procedures and alternatives, Hii Chii Kok extends the material information test to the doctor’s general duty to advise: Unlike the court in Montgomery, we do not confine the scope of the information in question to material risks concerning the recommended treatment and any reasonable alternatives or variant treatment. In our judgment, 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.
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If Hii Chii Kok is interpreted broadly, this potentially encroaches on an area of the doctor’s duty that should be resolved according to Bolam. Montgomery has been interpreted recently in the United Kingdom as being confined to risks only. The court in Malik v St George’s University Hospitals NHS Foundation Trust applied the Bolam/Bolitho test to the surgeon’s duty to advise the patient of alternatives: Whilst the leading case of Montgomery identifies that there is a duty to take reasonable care to ensure a patient is aware of any reasonable alternative treatments . . . in the circumstances of this case I consider that a responsible, competent and respectable body of skilled spinal surgeons would have reasonably concluded that there were no reasonable alternative treatments available in the context of the parameters and discussion that the claimant had with Mr Minhas.
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Malik thus distinguishes between material risks, which are to be judged by the standard of the reasonable patient, and reasonable alternatives, which are to be judged by medical professionals. While the distinction appears illusive, it has significant consequences. It is axiomatic that for patients to make an informed decision about a proposed treatment, they must be informed of reasonable alternatives. 76 The crux is that while what constitutes a material risk in any proposed treatment or alternative is based on a reasonable patient’s perception, the determination of whether an alternative treatment is reasonable is for the doctor to decide. Thus, a doctor may lawfully decide not to inform the patient of an existing alternative if it is considered unreasonable based on peer professional standards. If the doctor decides that the alternative treatment is reasonable and advises the patient of it, he or she now has to disclose any material risks inherent in that alternative treatment based on the Hii Chii Kok test.
Medical complaints
In the two years following Hii Chii Kok, several controversial professional misconduct cases were decided by the Singapore Medical Council (SMC) Disciplinary Tribunal, holding doctors to what many considered to be an unreasonably high standard. Three significant decisions were appealed to the Court of Three Judges, 77 with the court reiterating that assessment of reasonableness was always context specific. 78 The doctor in the controversial case of Singapore Medical Council v Lim Lian Arn 79 was charged for breaching Guideline 4.2.2 of the SMC’s Ethical Code and Ethical Guidelines (ECEG) (2002 edition) for failing to obtain informed consent from his patient. He allegedly had failed to advise the patient of minor risks and complications arising from a routine steroid injection in the patient’s hand. 80 Although the doctor pleaded guilty, the decision along with the severe penalty caused public outcry.
It bears emphasizing that the charge in Lim Lian Arn was based on the SMC’s ECEG (2002 edition), which was updated in 2016. The Guidelines set out the patient’s right to be informed in terms that reflect a strong commitment to individual autonomy: C5. Patients’ right to information and self-determination Patient autonomy is a fundamental principle in medical ethics and must be respected. Patients are entitled to have accurate and sufficient information to be able to make their own decisions about their medical management. Respecting patients’ autonomy means: (1) You must provide adequate information in a manner that patients can understand so as to allow them to make informed choices. (2) You must accept patients’ decisions whether to accept any of the management options you offer even if you disagree with them, but you must ensure that patients have sufficient information to understand the consequences of their decisions. (3) You must not deliberately deceive patients on any aspect of their diagnosis or management, but you must ensure that the information you give is presented in terms and at a pace that allows patients to assimilate, thereby enabling them to make informed decisions about their management. (4) If family members request withholding of information from patients, you must not do so unless you assess that the patients will react in an extreme way which would cause them serious harm. You must explain to the family members your obligation not to deceive patients while being sympathetic to their concerns and assuring them of your sensitivity in how you divulge information.
The Court of Three Judges not only reversed the penalty but went on to acquit Dr Lim. 81 Menon CJ, who gave the court’s judgement (and coincidentally the Hii Chii Kok judgement), was especially critical of the approach to informed consent, which apparently required Dr Lim to disclose all known risks of the procedure, regardless of whether they were material. Menon CJ reiterated that it ‘was made clear by the Court of Appeal in Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] 2 SLR 492 (‘Hii Chii Kok’) that a doctor is not under a duty to convey to his patient every conceivable risk’. 82 Based on the totality of the evidence, the court found that Dr Lim had not failed properly to inform the patient despite the absence of clinical notes documenting the provision of information.
Reform
Despite the High Court’s judgement overturning Dr Lim’s conviction and explaining how the reasonable standard of care applies, many in the medical profession remained concerned and public debate continued. The matter eventually was raised in Parliament, following which the Ministry of Health took the unprecedented step of instructing the SMC to review the Disciplinary Tribunal’s decision. 83 In March 2019, the Ministry of Health appointed a Workgroup to review and make recommendations on ‘(a) the taking of informed consent by a medical practitioner from a patient and (b) the Singapore Medical Council (“SMC”) disciplinary process’. 84 In November 2019, the Workgroup presented its report containing 29 recommendations, three of which were on informed consent:
Provide a clear legal standard for medical professionals’ duty to advise which is one that is patient-centric, but ultimately based on the opinion of a responsible body of doctors
Revise the SMC’s ECEG provisions on informed consent down to basic irreducible principles with helpful illustrations to guide doctor on how these principles apply.
Develop nationally agreed specialty-specific and situational guidelines to deal with standard commonplace procedures in each specialty.
Three preliminary observations are made here. First, there is an apparent conflation of two distinct issues, namely the taking of informed consent, on the one hand, and the duty to advise the patient of material risks and alternatives, on the other. Second, there is an underlying assumption that the Hii Chii Kok decision was responsible for the unwarranted outcome in Lim Lian Arn at the Disciplinary Tribunal level. Third, there is a misinformed claim based on cultural relativism.
There are two ways in which consent is relevant to medical malpractice – consent to the treatment and consent to the risk. Consent to the treatment is required to give the doctor lawful authority to treat the patient, absent which the doctor would commit battery and be liable in the tort of trespass. Under English law, it is well established that the patient only needs to be ‘informed in broad terms of the nature of the procedure which is intended’.
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There is no requirement to provide information that will satisfy the Montgomery/Hii Chii Kok test.
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Consent to the risk, however, is to secure the cooperation and confidence of the patient, factors that are important in establishing trust and ‘contributing to the treatment’s success’.
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However, if the doctor negligently fails to inform the patient of a material risk, which materializes and results in damage to the patient, the doctor may be liable in negligence. Tan Keng Feng put it succinctly: There are two aspects to the patient’s participation in medical decision-making: one pertaining to the patient’s exclusive non-clinical right to self-determination, and the other pertaining to the patient’s right, shared with the doctor, to participate in clinical matters in the medical treatment process.
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This distinction between these two forms of consent is crucial because trespass is actionable per se, that is, the patient may sue even if the patient does not suffer any damage. Failing to distinguish between taking informed consent (trespass) and the duty to inform the patient of material risks/information (negligence) risks inadvertently importing the Montgomery/Hii Chii Kok test into trespass, which would be catastrophic for doctors. The lines are already becoming blurred, 89 and the cautionary words of the Canadian Supreme Court in Reibl v Hughes 90 to expunge the term ‘informed consent’ from medical negligence discourse should be heeded.
The informed consent standard for trespass is rightly set at a level that is relatively easily satisfied by medical practitioners. The more demanding Montgomery/Hii Chii Kok test is appropriate for negligence because here, even though the standard demands more of doctors, they will only be liable if the patient suffers some damage. Furthermore, even when damage is suffered, the patient must still prove that it was the negligent failure to inform that caused the damage. This will require the patient to prove that he or she would have avoided the risk by refusing consent and foregoing treatment or opting for an alternative, not an easy task for serious, non-elective procedures. 91
On the second preliminary point, it was unfortunate that the Disciplinary Tribunal decision in Lim Lian Arn, roundly criticized on appeal, was used to launch a collateral attack on Hii Chii Kok, a carefully reasoned Court of Appeal decision by a full bench of five experienced judges, which brought the law in Singapore into line with the law in the major common law jurisdictions. The Workgroup rightly acknowledged that the Hii Chii Kok test was ‘nuanced and well balanced’ and that it did ‘not require doctors to disclose all risks to the point of blanketing patients with the minutiae of various treatment options’. 92 Regrettably, some doctors and lawyers misunderstood the reference to the ‘particular patient’ in Hii Chii Kok, mistakenly believing that they had to satisfy the informational desires of the most unreasonable, idiosyncratic patient. 93 Hii Chii Kok does not require this. 94
The Workgroup’s assumption that Singapore is not ready for the Montgomery/Hii Chii Kok approach because ‘the jurisdictions that have earlier departed from the Bolam-Bolitho test are advanced Western societies’ 95 is disputable factually and normatively. For example, Malaysia, Hong Kong, Indonesia, South Korea, and China all have laws requiring doctors to provide material information to patients to enable informed decision-making. 96 The Indian Supreme Court has recently referred with approval to Montgomery while noting the problems with Bolam, 97 especially in light of Article 21 of the Indian Constitution ‘which encompasses within its guarantee, a right to medical treatment and medical care’. 98 Perhaps, most significantly, the SMC’s ECEG enshrines a Western-centric model of patient’s right to information based on individual autonomy.
Before proceeding to the analysis section, the key parts of the section are reproduced here for convenience.
Section 37 –
A healthcare professional meets the standard of care in relation to the provision of medical advice to a patient if – (a) subject to subsection (2), the manner in which the healthcare professional acts in the matter (at the time the medical advice is provided) is accepted by a respectable body of medical opinion (called in this section the peer professional opinion) as reasonable professional practice in the circumstances; and (b) the peer professional opinion is logical.
In order for the peer professional opinion mentioned in subsection (1) to be relied on for the purposes of that subsection, the peer professional opinion must – (a) require the healthcare professional to have given (or caused to be given) to the patient – (i) information that a person in the same circumstances as the patient (which circumstances the healthcare professional knows or ought reasonably to know) would reasonably require to make an informed decision about whether to undergo a treatment or follow a medical advice; and (ii) information that the healthcare professional knows or ought reasonably to know (in accordance with subsection (3)) is material to the patient for the purpose of making an informed decision about whether to undergo the treatment or follow the medical advice; and
Explanation. – Sub-paragraph (ii) refers to information which a person in the same circumstances as the patient would not reasonably require to make an informed decision (about whether to undergo a treatment or follow a medical advice), but which is important to the patient, for the patient’s own reason (including an idiosyncratic reason), for the purpose of making an informed decision. (b) support the non-provision of any information mentioned in paragraph (a)(i) or (ii) to the patient only where there is reasonable justification for that.
In subsection (2)(a)(ii), an assessment as to whether any information is material to the patient for the purpose of making an informed decision about whether to undergo a treatment or follow a medical advice must be based on any specific concern or query the patient has in relation to the treatment or medical advice – (a) which the patient expressly communicates to the healthcare professional; or (b) which the patient does not expressly communicate to the healthcare professional but which ought to be apparent to the healthcare professional from the patient’s medical records that the healthcare professional has reasonable access to and ought reasonably to review.
Paradoxically, while the Workgroup’s stated aim was to restore trust in the doctor–patient relationship,
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the reforms are likely to result in a less trustful and less collaborative doctor–patient relationship as patients can no longer trust that doctors will voluntarily provide information that a reasonable patient would require if peer professional opinion can be relied on to protect doctors who do not provide such information. Section 37(3)(a) shifts the burden to the patient to ask endless questions to protect their interests. Increased friction will be inevitable, with more disgruntled patients making complaints if doctors do not entertain all of their questions. Commenting on section 37(3)(a) during the Second Reading Speech of the Bill, the Second Minister for Law gave this assurance: In short, in that scenario, the patient can be assured that when he walks into a clinic and sees the doctor, there really are no ‘stupid questions’. Every question that this patient raises with this doctor is a valid, relevant question that has to be addressed.
100
Legislating the standard of care
The Australian experience in legislating negligence is instructive as there are some similarities with the Singaporean experience. The immediate trigger for the reform process there was an unprecedented healthcare insurance crisis. Instead of addressing the insurance crisis directly, medical negligence law became a scapegoat, blamed for encouraging litigation and increasing costs. The medical profession, insurers, and Government demanded reform, which was carried out in record time. The legislative history of the various Acts shows that there are challenges to legislating the standard of care for medical professionals, challenges which section 37 may also encounter.
Reforms were introduced following a health insurance crisis when Australia’s biggest medical insurer, HIH Insurance Group, collapsed in 2001, followed soon after by United Medical Protection, in 2002. Medical litigation and the demise of the Bolam test in Australia were blamed for the crisis, which was allegedly responsible for the withdrawal of healthcare services and lack of access to affordable healthcare. However, no empirical evidence was provided and the available evidence did not support the claims.
101
The Federal Government promptly established an Expert Panel in July 2002 with instructions to prepare a report within three months; the final report was submitted in November 2002, recommending a modification of the Bolam test. Given the short timeframe, the Panel did not challenge the underlying assumptions on which the call for reform was made, but recorded them in the report: The Ministerial communiqué, the Terms of Reference, and the breadth and range of the responses the Panel received in submissions and consultations, indicate that there is a widely held view in the Australian community that there are problems with the law stemming from perceptions that: (a) The law of negligence as it is applied in the courts is unclear and unpredictable. (b) In recent times it has become too easy for plaintiffs in personal injury cases to establish liability for negligence on the part of the defendants. (c) Damages in personal injuries cases are too frequently too high.
Writing extra-judicially, Underwood J of the Supreme Court of Tasmania expressed bemusement that decades of careful deliberation by generations of lawyers and judges could be ignored because ‘some unidentified persons can neither understand nor predict the common law of negligence’.
102
Furthermore, far from litigation being the main cause of the crisis (for which no credible evidence was produced), there was evidence that the insurance crisis was due to a range of factors including poor industry regulation, chronic underfunding, deliberate underpricing by insurers to gain market share, risky bets in the capital markets, and the September 11 terrorist attacks which had a catastrophic effect on global markets and insurance companies in particular.
103
The crisis was an opportunity for insurance companies and a conservative government to rush through ill-informed tort law reform. The Law Council of Australia noted, The changes to personal injury laws implemented in several jurisdictions in response to the insurance crisis has lead [sic] to a patchwork of laws which have invariably weakened the common law rights of people injured due to the carelessness of others. The reforms have also enabled insurers to reap a massive windfall of profits in public liability, motor accidents and workers compensation insurance, due to the dramatic reduction in the number of compensable claims caused by changes to personal injury laws.
104
The aim of the reform exercise was to have uniformity in the law of negligence across Australia. However, each State enacted legislation with slight variations, creating a fractured national regime. 105 The legislative reform was also intended to deliver clarity and certainty. Instead, the statutory regimes have been the subject of litigation for almost 20 years as courts work on interpreting the various provisions. Some of the developments were unanticipated, suggesting that there may have been a disjunct between what the Expert Panel intended, what the Government accepted, and what the legislative drafters produced. However, while extrinsic material is relevant to statutory interpretation, the law is to be found in the statutory text, not in the minds of the reformers.
In an appeal involving the interpretation of section 5PB of the Civil Liability Act 2002 (WA), on the standard of care of medical practitioners, the Western Australian Court of Appeal had this to say: It would be a mistake, therefore, to reduce the task of interpreting s 5PB to a matter of identifying ‘what does Bolam require?’ or ‘what did the Ipp Report propose?’ The task of construing s 5PB must begin, and end, with the statutory text. Indeed, insofar as the Ipp Report is concerned, it is apparent that the text of s 5PB of the Civil Liability Act departs quite markedly from the recommendation in that report.
106
In some ways, the Australian legislation was uncontroversial as it merely reintroduced a watered down Bolam test for the medical duty to diagnose and treat. The duty to inform was not affected as the various Acts codified the material risk test set out in Rogers. Conceptually, the statutes work. Section 37, however, in attempting to fuse the Montgomery/Hii Chii Kok test with the Bolam/Bolitho test, has tried to fit a square peg in a round hole. Beyond this conceptual dilemma, there are several aspects of the legislation which are ambiguous and which may potentially expose healthcare professionals to greater liability than the common law.
The philosophical problem
The aim of the reform exercise was to revive the Bolam/Bolitho test with respect to the medical duty to inform and advise. That much is clear from the Workgroup Report and the Parliamentary Debates. 107 However, the legislation also attempts to give a nod to patient autonomy by including the Montgomery/Hii Chii Kok test. There are two difficulties here, one philosophical and the other legal. Philosophically, the Bolam/Bolitho test and the Montgomery/Hii Chii Kok test are mutually exclusive. Bolam/Bolitho approaches material risk from a medical perspective: this is something that peer professional opinion can shine a light on. Experts can make a comparative risk/benefit analysis and offer an opinion on what risks are medically material. Montgomery/Hii Chii Kok approaches it from the patient’s perspective. Subjecting the patient’s decision to be vetted by peer professional opinion is anathema to patient autonomy.
To help the patient make an informed choice is the hallmark of collaborative autonomy and shared decision-making. This is a middle ground between medical paternalism and isolated autonomy. 108 Collaborative autonomy is especially relevant to the duty to inform and the tort of negligence. Unlike the taking of consent for treatment, which typically occurs at a finite moment, the duty to inform is continuous as the doctor–patient relationship develops, the patient’s condition and circumstances evolve, and new treatment options either present themselves or are eliminated. This dynamic requires a partnership of trust, but as the Workgroup acknowledged, ‘The choice is ultimately the patient’s, and the doctor’s duty is to help the patient make an informed choice’. 109
The practical challenge is that patients often are not confident to make the decision on their own and prefer to be advised on what to do or to leave it to the doctor to decide. 110 However, this is not necessarily evidence that patients do not want to exercise autonomy. In some cases, patients are consciously outsourcing the professional decision-making to a trusted professional, but retaining the right to ask further questions, and ultimately to have the right to make an informed decision. This is described in the literature as a form of ‘conscientious autonomy’ or ‘intellectual outsourcing’. 111
‘Autonomous choice-making requires two essential psychological elements: an internal locus of control and a sense of competent self-efficacy’. 112 Persons with an internal locus of control believe that they have control over their lives while those with an external locus of control do not, believing that others or circumstances have control over them. Self-efficacy refers to ‘a sense of having the ability to successfully carry out a task and achieve a result’. 113 This provides a better understanding of the type of patients who are capable of exercising autonomy, the type who need assistance to achieve autonomy, and the type for whom decisions have to be made. This taxonomy may be represented by this grid.
Patients in Grid 1 are fully capable of exercising autonomy and are able to process complex information. Patients in Grid 2 have the capacity for exercising autonomy but lack the ability to do so as they may not fully understand their health condition and options. Too much information can become stressful as they want to exercise control, but are not competent to do so. Patients in Grid 3 are competent to make their own decisions but lack the confidence to do so. Instead of presumptively making decisions for patients in Grid 2 and Grid 3, doctors should help these patients realize their autonomy by providing the necessary information, advice, and support through dialogue. Patients in Grid 4 may need the doctor to hold their hands and guide them with inputs from family as appropriate.
This understanding demonstrates that there cannot be a one-size-fits-all approach to the duty to inform. The type and degree of information may vary according to the patient. This will be daunting for doctors, but at the same time, courts will also be aware of this reality and will therefore assess reasonableness according to the context and the nature of the patient. To override the prudent patient test for the duty to inform with the peer professional test is not in the best interests of the patient. Studies show that having some degree of control through adequate information is important to the patient’s health. 114 ‘If the basic rule of medicine is “First, do no harm,” then the harm done to patient autonomy by paternalistic medical environments and overcontrolling caregivers must be scrupulously avoided’. 115 As the Workgroup accepted, the doctor has a duty to help individual patients make informed choices.
In terms of applying section 37, it is unclear how peer professional opinion is qualified to determine what is a material risk to a patient. Who is the relevant peer or expert, especially in team-based medical care or surgical procedures? Should it be a peer in the same field as the specialist defendant or should it be a peer of the patient’s general practitioner or family doctor who understands the patient, or should it be a psychologist who may have a better understanding of human behaviour and patients’ perceptions of risk? Regardless of who the expert is, they are only qualified to assess the risks based on their professional expertise; they are not qualified to divine what a reasonable patient would consider material. At best, they can opine on what information they believe should be disclosed to a reasonable person. To a cynic, section 37 is just a smokescreen, although it is not altogether clear what it is masking.
Leaving aside the disconnect between expert opinion and patients’ need for information, it is also unclear how the logical defensibility test will apply. According to section 37(5), ‘a peer professional opinion is logical where – (a) the body of healthcare professionals holding the opinion has directed its mind to the comparative risks and benefits relating to the matter’. This makes sense in the context of diagnosis and treatment. But what is the risk/benefit analysis when it comes to the duty to inform? It can only mean that the professional has to determine whether the risk of disclosing information would outweigh the benefit to the patient. However, ‘benefit to the patient’ has to be judged from the patient’s perspective, otherwise one cannot sensibly speak of patient autonomy.
Section 37 does not only present philosophical challenges, but legal ones too. Section 37(1) encapsulates the peer professional test of Bolam/Bolitho and section 37(2) encapsulates the prudent patient test of Montgomery/Hii Chii Kok. The way the section is drafted is to subjugate section 37(1) to section 37(2), that is to say, the latter is a precondition to the former. The text cannot be clearer. Section 37(1) provides, ‘A healthcare professional meets the standard of care in relation to the provision of medical advice to a patient if – (a) subject to subsection (2), . . . ’. Section 37(2) reinforces this by opening with these words: ‘In order for the peer professional opinion mentioned in subsection (1) to be relied on for the purposes of that subsection, the peer professional opinion must – . . .’
Thus, for the peer professional opinion to be relied on, the defendant must be required to disclose to the patient information that a prudent patient would require, that is, it is mandatory to satisfy the Montgomery/Hii Chii Kok test before the Bolam/Bolitho peer professional test may be invoked. This was clearly not the intention of the Workgroup: The medical advice provided, and the materiality of the information and risks, would ultimately be assessed based on the practice and opinion of a responsible body of doctors. However, we clarify that this approach explicitly requires that a responsible body of doctors must have regard to patient autonomy and choice and consider what is material to the patient when providing medical advice. It would not represent the view of a responsible body of doctors, or meet the threshold test of logic, if it failed to do so.
116
Had section 37 been drafted as the Workgroup had intended, then textually section 37(1) would not have been strangled by section 37(2). However, as argued above, the two subsections nonetheless are substantively incompatible and thus would not work as the Workgroup had intended. Creative interpretation may save the legislation, but while contextual material is relevant to statutory interpretation, the High Court of Australia has rightly noted: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.
117
It follows logically that section 37 codifies Montgomery/Hii Chii Kok and gives it primacy over Bolam/Bolitho in assessing the healthcare professionals’ duty to advise. This interpretation fosters collaborative autonomy, with the medical professional helping the patient to make an informed decision instead of making the decision for the patient. Furthermore, this interpretation is bolstered by section 37(2)(b) which sets out that non-disclosure of material information is only permitted when there is ‘reasonable justification’. The examples of what constitute reasonable justification in the illustration are drawn from Hii Chii Kok, which applied the prudent patient test. The examples include necessity and waiver. Therapeutic privilege, the third example in Hii Chii Kok, is not included; instead, the third illustration highlights that a doctor is not justified in withholding information merely because it is perceived to be in the best interest of the patient.
The existence of section 37(2)(b) supports the argument made here that section 37(1) is subordinate to section 37(2). If peer professional opinion is the final arbiter, then the reasonable justification clause is superfluous. Surely, peer professional opinion would support non-disclosure in cases of necessity or waiver. Section 37(2)(b) would only be necessary if the standard of care is determined by the Montgomery/Hii Chii Kok test, based on information that a reasonable patient would consider significant. However, it is acknowledged that the interpretation set out in this article appears to be contrary to the stated aim of the reform process, which was to make the medical professionals the ultimate arbiters of what information should be provided. 118 This state of affairs will have to be resolved by courts.
The deeper problem with the Montgomery/Hii Chii Kok test is that it has become synonymous with patient autonomy. This invariably results in an overly subjective approach that focusses on the particular patient’s desire for information ex post instead of the reasonable patient’s desire for information ex ante. Commenting on Montgomery, Banja astutely observes, ‘The court’s decision will derive from a moral respect for an individual’s autonomous right to construe and protect his or her welfare interests, not from some notion of what a reasonable person would or wouldn’t do ex ante’. 119 Informed consent and patient autonomy should not cast too long a shadow over the tort of negligence. 120 There is a tension between the concept of reasonableness in negligence, which is relative, and the notion of patient autonomy, which is more absolute, especially in its individualist guise. 121
Specific issues
This part of the article examines some specific issues in the legislation that potentially expose doctors to a more onerous duty than the common law, properly understood, does. Alternatively, if some of these obligations are indeed what the common law demands, perhaps the legislation should have taken the opportunity to restrict the scope of doctors’ liability instead of codifying the common law in these areas. There are four issues: the scope of the duty, the subjectivation of the standard of care, the judgement of reasonableness, and the potential reversal of the burden of proof.
Section 37 has adopted the wider duty to advise recognized in Hii Chii Kok instead of the narrower Montgomery duty. Unlike the United Kingdom and Australia where the doctor’s duty is limited to advising the patient of material risks in the proposed treatment and alternatives, 122 section 37 requires the doctor to advise the patient of treatment options and provide material information to enable the patient to make an informed decision. However, the duty to advise of treatment options should be governed by Bolam/Bolitho/Gunapathy as this is within the sphere of professional judgement. Respecting patient autonomy does not equate with freedom of choice for the patient. 123
The standard of care under Hii Chii Kok is ultimately objective. As explained above, it is based on the reasonable patient; where the information has to be tailored to the particular patient, the information may be material only if the doctor knew or ought to have known that it was. Furthermore, in practice, it would only arise when the patient has actually informed the doctor of the special circumstances or where it is readily apparent from the doctor’s interactions with the patient. This is reasonable. Section 37(3)(b), however, imposes a positive obligation on the doctor to review the patient’s record to assess whether there are any idiosyncrasies that demand further information. 124
This raises a question of how courts should interpret what medical records the healthcare professional has ‘reasonable access to and ought reasonably to review’. Is it based on peer professional standards or does the court exercise its own judgement as to reasonableness? Criticism that doctors would be required to delve deeply into patients’ histories has been dismissed with confidence on the basis that doctors would only have to carry out reasonable enquiry: ‘The litmus test is that of reasonableness, . . . What is reasonable is a matter to be assessed in the context of each case, and it is not possible to define upfront at the start all the categories in a closed fashion of information that will be regarded as reasonable or not reasonable’.
125
True. Yet, it is this very concept of reasonableness in the common law standard of care that was attacked for being uncertain and which prompted the reform exercise to ‘provide a clear legal standard’.
The National Electronic Health Record (NEHR) brings together all the patient’s medical records which are accessible by doctors participating in the programme. 126 Doctors may now be obliged to be familiar with the patient’s idiosyncrasies not just from the doctor’s relationship with the patient, but from the patient’s interactions with other doctors. However, a study in 2019 showed that only 27% of private doctors had signed up to the NEHR. 127 The study also showed that older doctors (above 40 years) and those who were less computer savvy were unlikely to update the NEHR or review patients’ records. 128 The Government has encouraged private doctors to sign up to the NEHR and has provided generous support.
The NEHR grants ready access to patients’ records. Section 37(3)(b) fairly raises the possibility that a doctor who refuses to sign up to the NEHR and, therefore, fails to know that certain information is material to the particular patient might be negligent. The alternative would be to envisage variable standards to determine reasonable access to the NEHR, but this would be untenable. Section 37(3)(b) also raises ancillary issues of liability for systems errors and the effect of negligent recording of, or failure to update, patient information by other doctors. According to the 2019 study, such failure is not uncommon. 129 As one doctor pointed out, ‘The different public and private healthcare institutions use different EMR systems, multiple sub-systems exist within individual institutions and integration of the National Electronic Health Records system is not comprehensive (for example, clinic notes are not shared across different institutions)’. 130
While this was not intended, 131 the language of section 37 reverses the burden of proof on the peer professional standard. Section 37(1) provides that a ‘healthcare professional meets the standard of care in relation to the provision of medical advice to a patient if’ his or her conduct is accepted by peer professional opinion. Section 37(2) then provides, ‘In order for the peer professional opinion mentioned in subsection (1) to be relied on for the purposes of that subsection, . . .’ Read together, section 37 is a provision for healthcare professionals to rely on to prove that they had met the standard of care. The burden is therefore on the healthcare professional. This was the interpretation of the Civil Law Act 2002 (NSW) s 5O and the Wrongs Act 1958 (Vic) s 59, 132 which use language similar to that in section 37. This interpretation of section 37 may not be inconsistent with the legislation, as the claimant may establish the cause of action based on the common law, which is preserved by the legislation, 133 leaving the healthcare professional to rely on the legislation for a defence.
There are further matters that will require clarification by courts when the legislation comes into effect, including which healthcare professionals are affected by the legislation. According to the legislation, ‘A healthcare professional is defined by the new section to mean an individual who practises a profession that provides medical advice – this includes a medical practitioner, a dentist and an oral health therapist’. Thus, it remains to be seen who else may be included as ‘an individual who practices a profession that provides medical advice’. The legislation also restricts healthcare professionals to individuals, which means it does not apply to healthcare institutions.
Conclusion
The Rogers/Montgomery/Hii Chii Kok prudent patient test was a necessary development to strike a balance between medical beneficence and patient autonomy. However, the demands on doctors and the complexities in managing patients with high expectations should not be underestimated. It may take some time to achieve an optimal state; until then, the equilibrium will be dynamic and imperfect. The solution is not to roll back the prudent patient test. There is a wealth of jurisprudence around the common law world explaining the test and providing examples of its application, allowing courts to make further refinement. It is a test that aligns with medical ethics, promotes a positive standard of caring, and respects patients as partners in the doctor–patient relationship. The reasonable person belongs in the common law where experience and not logic will illuminate the standard. Legislating the standard of care to reintroduce the peer professional standard in the belief that doctors need certainty and control over information disclosure does not augur well for a relationship of trust.
Instead of legislatively reversing Hii Chii Kok, a better approach would have been to curtail some of the far-reaching effects of Hii Chii Kok and the over-emphasis of patient autonomy in medical negligence. Thus, section 37 could have clarified that the duty is restricted to informing patients of material risks in proposed treatments and alternatives. This prevents the Hii Chii Kok test from encroaching into the domain of medical professional judgement on appropriate treatment options. Section 37 should not have codified an overly subjective approach to the particular patient test nor imposed a positive obligation on doctors to review patients’ records to assess whether there are any idiosyncrasies to be addressed.
The doctor–patient relationship must not be reduced to a consumerist model of service provider-client where the ‘customer is always right’. Any tendency of Montgomery and Hii Chii Kik to tilt in that direction must be resisted, but beware throwing the baby out with the bathwater. The common law has the inherent capacity to self-correct with inputs from lawyers, judges, and medical experts as cases come before the courts. Legislation is too blunt a tool for this delicate task, especially when it is executed as a knee-jerk reaction. The Australian experience has shown that legislating the standard of care is not a panacea. Section 37 is not in the best interest of doctors and patients.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was supported by a Singapore Government Ministry of Education Academic Research Fund Tier One Grant.
1.
See generally, M. Brazier and J. Miola, ‘Bye-Bye Bolam: A Medical Revolution?’, Medical Law Review 8 (2000), pp. 85–114; R. Mulheron, ‘Trumping Bolam: A Critical Legal Analysis of Bolitho’s Gloss’, Cambridge Law Journal 69 (2010), pp. 609–638; C. Sappideen, ‘Bolam in Australia – More Bark than Bite?’, University of New South Wales Law Journal 33 (2010), pp. 386–424; K. Amirthalingam, ‘Medical Negligence and Patient Autonomy: Bolam Rules in Singapore and Malaysia – Revisited’, Singapore Academy of Law Journal 27 (2015), pp. 666–693.
2.
1957] 1 WLR 582.
3.
Op cit., p. 587.
4.
The description is used and explained in A. Merry and A. McCall Smith, Errors, Medicine and the Law (Cambridge: Cambridge University Press, 2001), pp. 166–171.
5.
Mulheron, ‘Trumping Bolam’, p. 609; M. Rizzi, ‘Health Professionals’ Standard of Care and Breach of Duty in Western Australia: A Requiem for the “Peer Professional” Test at a Time of Uncertainty’, Torts Law Journal 26 (2020), pp. 179–189; Workgroup to Review the Taking of Informed Consent and SMC Disciplinary Process (Report on Recommendations, 28 November 2019), Annex E, p. xv.
6.
Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1 AC 871, p. 881 per Lord Scarman.
7.
Brazier and Miola, ‘Bye-Bye Bolam’, pp. 90–95.
8.
Canterbury v Spence 464 F 2d 772 (1972) (US); Reibl v Hughes (1981) 114 DLR 1 (Canada); Rogers v Whitaker (1992) 175 CLR 479 (Australia); Dr Hari Krishnan & Anor v Megat Noor Ishak Megat Ibrahim & Anor [2018] 1 MLRA 535 (Malaysia); Montgomery v Lanarkshire Health Board [2015] AC 1430 (UK); Hii Chii Kok v Ong Peng Jin London Lucien and another [2017] 2 SLR 492 (Singapore).
9.
Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1 AC 871, p 887 per Lord Scarman; Hii Chii Kok v Ong Peng Jin London Lucien and another [2017] 2 SLR 492, [68] per Menon CJ. This article uses the terms ‘peer professional’ and ‘prudent patient’.
10.
See especially, the comments of Lady Hale in Montgomery v Lanarkshire Health Board [2015] AC 1430, [108] and Menon CJ in Hii Chii Kok v Ong Peng Jin London Lucien and another [2017] 2 SLR 492, [116]–[122]. See also, J. Miola and R. Heywood, ‘The Changing Face of the Pre-Operative Medical Disclosure: Placing the Patient at the Heart of the Matter’, Law Quarterly Review 133 (2017), pp. 296–321; J. Gardner, ‘The Many Faces of the Reasonable Person’, Law Quarterly Review 131 (2015), p. 563; R. Heywood, ‘R.I.P. Sidaway: Patient-Oriented Disclosure – A Standard Worth Waiting for?’, Medical Law Review 23 (2015), pp. 455–466.
11.
[2017] 2 SLR 492.
12.
Singapore Medical Council v Dr Lim Lian Arn [2018] SMCDT 9.
13.
Dr Lim was fined SGD100,000, the maximum fine for the offence. However, it should be noted that Dr Lim pleaded guilty and offered to pay the maximum to avoid any suspension from practice.
14.
Workgroup to Review the Taking of Informed Consent and SMC Disciplinary Process (Report on Recommendations, 28 November 2019).
15.
Workgroup to Review the Taking of Informed Consent and SMC Disciplinary Process (Report on Recommendations, 28 November 2019), [49]–[56].
16.
Blyth v Birmingham Waterworks Co (1856) 11 Ex 781.
17.
Vaughan v Menlove (1837) 132 ER 490 (CP).
18.
Gardner, ‘The Many Faces of the Reasonable Person’, p. 563.
19.
Op cit.
20.
S. Deakin, A. Johnston and B. Markesinis, Markesinis and Deakin’s Tort Law, 6th ed. (Oxford: Clarendon Press, 2008), p. 223.
21.
D.M. Trubek, ‘Where the Action Is: Critical Legal Studies and Empiricism’, Stanford Law Review 36 (1984), pp. 575–622. For a feminist critique of the reasonable person: M. Moran, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (Oxford: Oxford University Press, 2003).
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23.
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24.
[1954] 2 QB 66.
25.
J.R. Maltby, C.D.D. Hutter and K.C. Clayton, ‘The Woolley and Roe Case’, British Journal of Anaesthesia 84 (2000), pp. 121–126.
26.
Op cit., p. 125.
27.
[1954] 2 QB 66, pp. 86–87.
28.
The man on the Clapham Omnibus is a simile to denote the hypothetical, ordinary person in society against whose standard the conduct of the defendant is judged. It was first invoked in a negligence action in Hall v Brooklands Auto Racing Club [1933] 1 KB 205.
29.
L. Wahlberg and C. Dahlman, ‘The Role of the Expert Witness’, in C. Dahlman, A. Stein and G. Tuzet, eds., Philosophical Foundations of Evidence Law (Oxford: Oxford University Press, 2021), SSRN: https://ssrn.com/abstract=3758820 or 
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30.
Shakoor v Situ (2001) 1 WLR 410.
31.
Nettleship v Weston [1971] 2 QB 691.
32.
Mullins v Richard [1998] 1 WLR 1304.
33.
Wells v Cooper [1985] 2 QB 265.
34.
United States v Carroll Towing 159 F2d 169 (2d Cir 1947); Morris v West Hartlepool Steam Navigation Co [1956] AC 522; Wyong Shire Council v. Shirt (1980) 146 CLR 40; BNJ v SMRT Trains Ltd [2014] 2 SLR 7.
35.
See, for example, Dr Khoo James v Gunapathy d/o Muniandy [2002] 1 SLR(R) 1024, [144]: ‘Furthermore, the lawyer-judge in “playing doctor” at the frontiers of medical science might distort or even hamper its proper development. Excessive judicial interference raises the spectre of defensive medicine, with the attendant evils of higher medical costs and wastage of precious medical resources’.
36.
Qualcast v Haynes [1959] AC 743.
37.
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38.
Maynard v West Midlands Regional Health Authority [1984] 1 WLR634. Dr Khoo James v Gunapathy d/o Muniandy [2002] 1 SLR(R) 1024.
39.
J.L. Montrose, ‘Is Negligence and Ethical or Sociological Concept?’, The Modern Law Review, 21 (1958), pp. 259–264; A.D. Miller and R. Perry, ‘The Reasonable Person’, New York University Law Review, 87 (2012), pp. 323–392.
40.
Montrose, ‘Is Negligence and Ethical or Sociological Concept?’, p. 262.
41.
Op cit., p. 263.
42.
[1932] AC 562.
43.
W.T.S. Stallybrass, Salmond’s Law of Torts (London: Sweet & Maxwell, 1945), p. 437: ‘the general practice itself may not conform to the standard of care required of a reasonably prudent man. In such a case it is not a good defence that the defendant acted in accordance with the general practice’.
44.
M. Dunn, K.W.M. Fulford, J. Herring and A. Handa, ‘Between the Reasonable and the Particular: Deflating Autonomy in the Legal Regulation of Informed Consent to Medical Treatment’, Health Care Analysis 27 (2019), pp. 110–127.
45.
A.D. Miller and R. Perry, ‘The Reasonable Person’, New York University Law Review 87 (2012), pp. 323–392.
46.
See generally, R.W. Wright, ‘Justice and Reasonable Care in Negligence Law’, American Journal of Jurisprudence 47 (2002), pp. 143–196 for a history and criticism of this approach.
47.
R.A. Posner, ‘A Theory of Negligence’, Journal of Legal Studies 1 (1972), p. 29, pp. 32–33.
48.
L. Bender, ‘A Lawyer’s Primer on Feminist Theory and Tort’, Journal of Legal Education 38 (1988), pp. 3–37.
49.
Op cit., p. 28.
50.
Op cit., p. 4.
51.
See generally, O. O’Neill, Autonomy and Trust (Cambridge: Cambridge University Press, 2002).
52.
See, the British Medical Association Report, Caring, Supportive, Collaborative: Doctors’ Vision for Change in the NHS (September 2019).
53.
J. Miola, ‘The Standard of Care in Medical Negligence – Still Reasonably Troublesome?’, in J. Richardson and E. Rackley, eds., Feminist Perspectives on Tort Law (London: Routledge, 2012), pp. 126–144.
54.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, p 586 (emphasis added).
55.
Maynards v West Midlands Regional Health Authority [1984] 1 WLR634; De Freitas v O’Brien [1993] 4 Medical Law Review 281; Whitehouse v Jordan [1981] 1 WLR 246. See, Lord Woolf, ‘Are Courts Excessively Deferential to the Medical Profession?’.
56.
[1998] AC 232.
57.
Op cit., p 243.
58.
[2002] 1 SLR(R) 1024.
59.
Op cit., [64]–[65].
60.
Op cit., [65].
61.
Hii Chii Kok v Ong Peng Jin London Lucien and another [2017] 2 SLR 492, [104].
62.
Op cit., [69].
63.
Op cit., n 7.
64.
[2015] AC 1430, [87].
65.
[2017] 2 SLR 492.
66.
For a detailed commentary on Hii Chii Kok, see L. Austin, ‘Hii Chii Kok v (1) Ooi Peng Jin London Lucien; (2) National Cancer Centre: Modifying Montgomery’, Medical Law Review 27 (2019), pp. 339–351.
67.
Hii Chii Kok v Ong Peng Jin London Lucien and another [2017] 2 SLR 492, [131]–[153].
68.
Op cit., [141].
69.
Op cit.
70.
Op cit., [135] (emphasis added).
71.
(1992) 175 CLR 479.
72.
Hii Chii Kok v Ong Peng Jin London Lucien and another [2017] 2 SLR 492, [144].
73.
Op cit., [145].
74.
Op cit., [132] (emphasis added).
75.
[2021] EWHC 1913, [93].
76.
Miola and Heywood, ‘The Changing Face of the Pre-Operative Medical Disclosure’, p. 296, p. 309.
77.
Chia Foong Lin v Singapore Medical Council [2017] SGHC 139; Singapore Medical Council v Lim Lian Arn [2019] SGHC 172; Singapore Medical Council v Soo Shuenn Chiang [2019] SGHC 250.
78.
See especially, Singapore Medical Council v Soo Shuenn Chiang [2019] SGHC 250, [48]. As a further example, in Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2019] 1 SLR 834, the Court of Appeal held that the standard of care had to be calibrated against the exigencies of the accident and emergency department, giving doctors greater latitude for what might otherwise be considered a lapse. See also, Darnley v Croydon Health Services NHS Trust [2019] AC 831.
79.
[2019] SGHC 172.
80.
The procedure involved an injection of hydrocortisone and lignocaine. These injections are routine and have minor risks. Following the Disciplinary Tribunal’s judgement, a survey was conducted by doctors, which allegedly demonstrated that the decision had resulted in some doctors no longer offering this treatment or increasing the cost of the injection. C.Y. Wong et al., ‘A Descriptive Study of the Effect of a Disciplinary Proceeding Decision on Medical Practitioners’ Practice Behaviour in the Context of Providing a Hydrocortisone and Lignocaine Injection’, Singapore Medical Journal 6 (2020), pp. 413–418.
81.
Singapore Medical Council v Lim Lian Arn [2019] SGHC 172.
82.
Op cit. [48].
83.
84.
Workgroup to Review the Taking of Informed Consent and SMC Disciplinary Process (Report on Recommendations, 28 November 2019), [1].
85.
Chatterton v Gerson [1981] 1 QB 432 at 443. See also, Hills v Potter [1984] 1 WLR 641.
86.
See, for example, XYZ v Warrington & Halton NHS Foundation Trust [2016] EWHC 331 in which case the court held that consent was properly taken based on the standard information on the nature of the procedure and associated risks. See also the observation in Shaw v Kovac & Or [2017] 1 WLR 4773: ‘It has long been the law that where a doctor has failed to provide proper information as to risk prior to a medical procedure and that failure leads to consent being given which otherwise would have been withheld, and loss results, then that is actionable in negligence. The consent so given is not regarded as a nullity; and accordingly in the usual case the claim is not to be pleaded as one of trespass to the person (in the absence of fraud or bad faith, which has never been pleaded in the present case); see, for example, Chatterton v Gerson [1981] 1 QB 432, p 443 (per Bristow J)’.
87.
Re W (A Minor) (Medical Treatment: Court`s Jurisdiction) [1993] Fam 64, p. 76.
88.
Tan Keng Feng ‘Failure of Medical Advice: Trespass or Negligence?’, Legal Studies 7 (1987), pp. 149–168.
89.
J. Herring et al., ‘Elbow Room for Best Practice? Montgomery, Patients’ Values, and Balanced Decision-Making in Person-Centred Clinical Care’, Medical Law Review 25 (2017), pp. 582–603.
90.
(1981) 114 DLR 1.
91.
Tong Seok May Joanne v Yau Hok Man Gordon [2013] 2 SLR 18, [170]–[172]; cf. Chester v Afshar [20014] 1 AC 134. Courts in the United Kingdom and Australia have developed some exceptional rules, but that is beyond the scope of this article. See, Chester v Afshar [2005] 1 AC 134; Chappel v Hart (1998) 195 CLR 232. See generally, G. Turton, ‘Informed Consent to Medical Treatment Post-Montgomery: Causation and Coincidence’, Medical Law Review 27 (2019), pp. 108–134.
92.
Workgroup to Review the Taking of Informed Consent and SMC Disciplinary Process (Report on Recommendations, 28 November 2019), [13].
93.
In a petition to the Ministry of Health following the Lim Lian Arn decision, the signatories noted, ‘If patients need to be informed of even the most minor or uncommon side effects of treatment, then the cost and time of treatment must necessarily increase. . . . The practice of medicine in Singapore will henceforth be completely legalistic, if all complications and side effects must be told to each and every patient’, (accessed 12 October 2021).
94.
This has been reaffirmed by the Chief Justice in Singapore Medical Council v Lim Lian Arn [2019] SGHC 172, [48].
95.
Workgroup to Review the Taking of Informed Consent and SMC Disciplinary Process (Report on Recommendations, 28 November 2019, [14].
96.
Dr Hari Krishnan & Anor v Megat Noor Ishak Megat Ibrahim & Anor [2018] 1 MLRA 535; Chan Siu Yim v Dr Cheung Sheung Kin also known as Dr Samuel Kinneth Cheung [2017] HKDC 174; Law of the Republic of Indonesia Number 29 Year 2004 regarding the Medical Practice, arts 45, 52; B.Y. Park et al., ‘Informed Consent as a Litigation Strategy in the Field of Aesthetic Surgery: An Analysis Based on Court Precedents’, Archives of Plastic Surgery 43(5) (2016), pp. 402–410; Tort Law of the People’s Republic of China (2010) art 55, (accessed 21 October 2021).
97.
Maharaja Agrasen Hospital v Master Rishabh Sharma [2019] INSC 1286.
98.
V Kishan Rao v Nikhil Super Speciality Hospital (2010) 5 SCC 513, [25].
99.
Workgroup to Review the Taking of Informed Consent and SMC Disciplinary Process (Report on Recommendations, 28 November 2019), [6]–[10].
100.
Singapore Parl Debates; vol 95, Sitting No 8; Sitting Date: 6 October 2020 (Mr Edwin Tong, Second Minister for Law) (emphasis added).
101.
Sappideen, ‘Bolam in Australia’, p. 386, p. 389 and references therein at nn 73–75.
102.
P. Underwood, ‘Is Mrs Donoghue’s Snail in Mortal Peril?’, Torts Law Journal 12 (2004), p. 39, p. 45.
103.
Underwood, ‘Is Mrs Donoghue’s Snail in Mortal Peril?’, p. 39; P. Cashman, ‘Tort Reform and the Medical Indemnity Crisis’, University of New South Wales Law Journal 25 (2002), pp. 888–894; J.J. Spigelman, ‘Negligence and Insurance Premiums: Recent Changes in Australian Law’, Torts Law Journal 11 (2003), p. 291.
105.
Civil Liability Act 2002 (NSW) ss 5O, 5P; Wrongs Act 1958 (Vic) s 59; Civil Liability Act 2002 (WA) ss 5PA, 5PB; Civil Liability Act 2003 (Qld) ss 20–2; Civil Liability Act 1936 (SA) s 41; Civil Liability Act 2002 (Tas) ss 21–2. See, D. Butler, ‘A Comparison of the Adoption of the Ipp Report Recommendations and Other Personal Injuries Liability Reforms’, Torts Law Journal 13 (2005), pp. 203–215.
106.
Child and Adolescent Health Service v Sunday John Mabior by Next Friend Mary Kelei [2019] WASCA 151, [303]–[305].
107.
Workgroup to Review the Taking of Informed Consent and SMC Disciplinary Process (Report on Recommendations, 28 November 2019), Annex E; Singapore Parl Debates; vol 95, Sitting No 8; Sitting Date: 6 October 2020 (Mr Edwin Tong, Second Minister for Law).
108.
M.A. Rubin, ‘The Collaborative Autonomy Model of Medical Decision-Making’, Neurocrit Care 20 (2014), pp. 311–318.
109.
Workgroup to Review the Taking of Informed Consent and SMC Disciplinary Process (Report on Recommendations, 28 November 2019), [53] (emphasis added).
110.
See studies cited in Rubin, ‘Medical Decision-Making’, p. 314.
111.
V.A. Entwistle et al., ‘Communicating about Screening’, British Medical Journal 337 (7673) (2008), pp. 789–791; R. Kukla, ‘Conscientious Autonomy: Displacing Decisions in Health Care’, Hastings Center Report 5(2) (2005), pp. 34–44. I am grateful to Dr Anantham Devanand for these references.
112.
B.N. Waller, ‘The Psychological Structure of Patient Autonomy’, Cambridge Quarterly of Healthcare Ethics 11 (2002), pp. 257–265.
113.
Op cit., p. 258.
114.
K.E. Dennis, ‘Patients’ Control and the Information Imperative’, Nursing Research 39(3) (1990), pp. 162–166.
115.
Waller, ‘Patient Autonomy’, p. 263.
116.
Workgroup to Review the Taking of Informed Consent and SMC Disciplinary Process (Report on Recommendations, 28 November 2019), [51].
117.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47] (internal footnotes omitted).
118.
Workgroup to Review the Taking of Informed Consent and SMC Disciplinary Process (Report on Recommendations, 28 November 2019), [49].
119.
J. Banja, ‘Reasonable Persons, Autonomous Persons, and Lady Hale Determining a Standard for Risk Disclosure’, Hasting Centre Report 50 (March-April 2020), pp. 25, 29–34.
120.
See, C. Purshouse, ‘Liability for Lost Autonomy in Negligence: Undermining the Coherence of Tort Law?’, Torts Law Journal 22 (2015), pp 226–249.
121.
Individual autonomy is conflated with self-determination, agency, or liberty. See generally, G. Parchomovsky and A. Stein, ‘Autonomy’, University of Toronto Law Journal 71 (2021), p. 61; J. Coggon and J. Miola, ‘Autonomy, Liberty, and Medical Decision-Making’, Cambridge Law Journal 70 (2011), pp. 523–547.
122.
Malik v St George’s University Hospitals NHS Foundation Trust [2021] EWHC 1913; Makaroff v Nepean Blue Mountains LHD [2021] NSWCA 107.
123.
See E. Cave and C. Milo, ‘Informing Patients: The Bolam Legacy’, Medical Law International 20 (2020), pp. 103–130, pp. 118–120 on the risk of Montgomery fostering a consumerist patient culture. See also, J. Montgomery, ‘Law and the Demoralisation of Medicine’, Legal Studies 26 (2006), pp. 185–210.
124.
37(3) - In subsection (2)(a)(ii), an assessment as to whether any information is material to the patient for the purpose of making an informed decision about whether to undergo a treatment or follow a medical advice must be based on any specific concern or query the patient has in relation to the treatment or medical advice – (a) which the patient expressly communicates to the healthcare professional; or (b) which the patient does not expressly communicate to the healthcare professional but which ought to be apparent to the healthcare professional from the patient’s medical records that the healthcare professional has reasonable access to and ought reasonably to review. . .
125.
E. Tin and A.W.R. Cheng, ‘New Section 37 on Standard of Care for Medical Advice’, Singapore Medical Association News 53(1) (2021), p. 18, p. 20.
127.
Q.Y. See, ‘Attitudes and Perceptions of General Practitioners towards the National Electronic Health Record (NEHR) in Singapore’, European Medical Journal 5(1) (2020), p. 86, p. 88.
128.
Op cit., p. 92.
129.
Op cit., p. 91.
130.
131.
Singapore Parl Debates; vol. 95, Sitting No. 8; Sitting Date: 6 October 2020 (Mr Edwin Tong, Second Minister for Law).
132.
South Western Sydney Local Health District v Gould [2018] NSWCA 97, [123]; Boxell v Peninsula Health [2019] VSC 830, [21].
133.
See the Explanatory Statement to the Civil Law (Amendment) Bill (Bill No 33/2020).