The law relating to breach of duty in medical negligence has been under attack in recent times. The principles of Bolam v Friern Hospital Management Committee (1957) 1WLR582 ("Bolam") and Bolitho v City and Hackney Health Authority (1998) AC232 ("Bolitho") have traditionally laid down a physician-centric approach; placing emphasis on peer review to determine whether a doctor's conduct was lacking.

The Bolam and Bolitho approach has drawn criticism over the years and in several key jurisdictions it has been abandoned in favour of an approach that can be described as more "patient-centric", at least in relation to the issue of consent. This shift was reflected recently in Montgomery v Lanarkshire Health Board (2015) UKSC11 which confirmed that Bolam has no impact on what a doctor or medical practitioner should advise a patient when obtaining consent for treatment. 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.

The applicability of both Bolam and Bolitho have been looked at again, this time by the Singapore Court of Appeal in Hii Chii Cook v Ooi Peng Jin London Lucien and Another (2017) SGCA38. Prior to this, the position in Singapore was set out in Khoo James and Another v Gunapathy d/o Muniandy and Another Appeal (2002) 1SLR(R)1024 which followed the principles established in Bolam and Bolitho.

This decision will be of particular interest for all healthcare providers operating in the Singapore jurisdiction. It will also attract interest from the wider community of practitioners in clinical negligence, as the Courts in the UK and other commonwealth jurisdictions grapple with the notion of changing approaches to determining liability.

Facts of the case

The Claimant brought proceedings against his surgeon, Dr Ooi and the National Cancer Centre of Singapore PTE Ltd (NCCS). The Claimant was diagnosed with pancreatic lesions. He was informed that these may be neuroendocrine tumours, or a very rare but less serious condition known as pancreatic polypeptide hyperplasia.

He was also advised of his options flowing from these two possible diagnoses. He could either wait for six months and have a further scan to try and determine whether the lesions were cancerous or benign or, alternatively, proceed straight to surgical resection. The Claimant chose the latter.

Through post-operative histopathology, it was later discovered that the Claimant did not have a tumour and the lesions were benign. Subsequently, the Claimant developed complications and had to undergo further operations.

The first instance decision

At first instance, it was decided that the Defendants were not negligent as they had clearly discharged their duty in advising the Claimant on the material risks and available alternatives by reference to Bolam, Bolitho and Montgomery.

In particular, the Court held that the Claimant had all the necessary information and advice he needed to give his informed consent to surgery; he knew of all the material risks and even minor risks that might arise. A range of non-surgical options were presented to him and he was told about alternative options and risks that he would have to balance. Further it was found that, in resonance with Montgomery, the Defendants had not bombarded the Claimant with technical information; the advice on the risks he had to balance were explained and even elaborated on at length when the Claimant had further questions.

The Court of Appeal decision

The appeal Judges ultimately agreed with the first instance decision; they did not consider that negligence had been made out. However, they also took the opportunity to comment on the legal test to be applied for the duty to advise in Singapore.

The appeal Judges concluded that, although the law as it was stated in Gunapathy still applied in the context of diagnosis and treatment, a different more patient-centric test was now required in the context of the information and advice that doctors provide to their patients. The Court set out a three stage test.

  1. Relevance and materiality - materiality is to be assessed from the vantage point of the patient, having regard to what the patient in question was reasonably likely to have attached significance to in arriving at his decision (or matters which the doctors in fact knew or had reason to believe that the patient in question would have placed particular emphasis on). Broad types of material information include:

a. The doctor's diagnosis of the patient's condition; b. The prognosis of that condition with or without medical treatment; c. The nature of the proposed medical treatment; d. The risk associated with the proposed medical treatment; and e. The alternatives to the proposed medical treatment and the advantages and risks of those alternatives.

The various types of information that would be considered relevant or material is largely a matter of common sense. In general terms this is information that reasonable people would regard as immaterial or irrelevant which is safe to omit.

  1. Information not in the doctor's possession – when dealing with this scenario, the question should be whether a doctor ought to have ordered further tests or apprised himself of the medical knowledge which would have given him the information he did not have.
  2. Reasonable justification for withholding information – the Court must consider whether there is any reasonable justification why the information, though material and in the doctor's possession, was nevertheless withheld. Here the Court should adopt a physician-centric approach, taking account of expert evidence as to the wider medical practice and judgment. At this stage of the enquiry, the burden is on the doctor to justify the non-disclosure. It will then be for the Court to consider whether, in all of the circumstances, the doctor's conduct was justified and so does not constitute a breach of the standard of care. Although not wishing to limit the scope of this stage, the Court gave examples of three such situations where it might be reasonable to withhold information; namely waiver by the patient, treatment provided on an emergency basis and therapeutic privilege.

The Court then discussed how that information should be communicated. Having set out the three stage test, it was emphasised that in implementing the test, it should be recalled that the duty of the doctor is a duty to take reasonable care. He is not expected to meet unrealistic standards of behaviour. This means that consideration must be given to the fact that a doctor is not required to ensure that the patient fully comprehends the information given, but only to take reasonable care in this and other respects.

Furthermore, it was also pointed out that the mere provision of information is pointless if it is not accompanied by a quality of communication that is commensurate with the ability of the patient to understand the information. The ultimate aim is for patients to have sufficient information to understand the consequences of their decision and to this end the doctor must ensure that the information given is presented in terms and at a pace that allows the patient to assimilate it, thereby enabling him to make informed decisions. The same point was made in Montgomery.

As a final point, it was also stated that it was of critical importance that the Courts ensure, when evaluating whether a doctor has met the requisite standard of care in any aspect of his interaction with the patient, that the three stage test is applied with reference only to the facts that were known at the time the material event occurred; perfection or the use of increased knowledge or experience acquired in hindsight should form no part of what is reasonable in all the circumstances.

This is an interesting and thoughtful decision which recognises that doctors can and should empower patients to exercise their autonomy by giving them the information they need to make meaningful decisions about their own healthcare. While UK courts have adopted Montgomery, there has been criticism that doctors may, in order to protect themselves, overload patients with information rather than giving them accurate guidance. The Singapore approach recognises that doctors can withhold information, so long as in doing so they protect the patient from harm. This goes much further than the UK jurisdiction in Montgomery, and so it will be interesting to see whether Courts in jurisdictions other than Singapore adopt a similar hybrid approach.