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

Introduction

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

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

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

The facts

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

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

The decision of the Court of Appeal

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

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

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

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

The modified Montgomery test

The Court formulated a three-stage test:

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

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

  1. The doctor's diagnosis of the patient's conditions;

  2. The prognosis of that condition with and without medical treatment;

  3. The nature of the proposed medical treatment;

  4. The risks associated with the proposed medical treatment; and

  5. The alternatives to the proposed medical treatment, and the advantages and risks of those alternatives.

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

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

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

Comment

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

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