Biomedical Law and Ethics

• Author: Paul TAN LLB (Hons) (National University of Singapore).
• Date: 01 December 2006
• Citation: (2006) 7 SAL Ann Rev 93
• Published date: 01 December 2006

Introduction

5.1 Considering that the last truly significant medical law case, Khoo James v Gunapathy d/o Muniandy[2002] 2 SLR 414, was decided almost five years ago, the year under review produced an unusual number of interesting and novel developments in the law both in and out of court. The general direction of these developments appears to be focused on recognising the autonomy of the individual patient, and giving effect to his deliberate choices.

Recognising autonomy

Anticipatory decisions of previously competent persons

5.2 Re LP (adult patient: medical treatment) [2006] 2 SLR 13 (‘Re LP’) concerned a diabetic who admitted herself into hospital and was eventually diagnosed as suffering from ‘right foot infection with gangrene of her right big toe and several superficial burn wounds over her left foot’. The patient refused to consent to the amputation of her right leg, although she agreed to amputate her right toe. When her infection then spread to the left leg she continued to insist that her doctors ‘save her legs at all costs’. At this time, there was still no immediate danger of her dying from the infection. Soon after, however, the patient went into septic shock and lapsed into a coma. There was uncontroverted evidence that the patient would die if her legs were not amputated. The hospital applied, ex parte, for a declaration that an operation amputating her legs would be lawful.

5.3 Choo Han Teck J found that he had the jurisdiction to grant the application, and did grant the declaration, notwithstanding that the patient had purportedly declared to her son that she would ‘rather die than lose her legs’. In so far as the medical law question was concerned (ie, whether to grant the declaration), Choo J held as follows (at [11]):

I am of the view that the evidence indicated that the statements made by [the patient] before she lapsed into a coma regarding her preference to death over losing her legs, were probably made without the benefit of medical advice of impending death. I could not say, on the evidence before me, that [she] had clearly and expressly refused her consent to the surgical

operation now intended by the doctors, knowing that it was the only treatment to save her from impending death. Further, I was satisfied that the proposed surgical operation would be in her best interests.

5.4 Two aspects of this case are worth highlighting, although a more extensive discussion may be found in Paul Tan, ‘When Death Knocks, Who Will Answer and What Will They Say?’(2006) 18 SAcLJ 493 (‘When Death Knocks’).

5.5 By far the most novel contribution that Re LP has made to the development of medical law in Singapore is its assumption that the courts will, in principle, honour the anticipatory decisions of a previously competent person. This is so even where, as in Re LP, the patient has indicated a refusal to accept life-saving treatment. On its face, this goes beyond the ambit of the Advance Medical Directive Act (Cap 4A, 1997 Rev Ed) (‘AMD’), which only envisages the refusal of life-sustaining treatment when the patient is already terminally ill.

5.6 Re LP, however, imposes an evidential burden that the court will look for a ‘clear and express’ indication that the anticipatory decision was made in the knowledge that this was the only treatment that could save the patient from impending death. The question that future cases will have to decide is just how high this evidential burden is. Will it require patients to have foreseen the precise circumstances of their imminent death when they declare that they would rather die than be treated? Would statements such as ‘I don”t want to be hooked up to any machine’ suffice? What if such indications were made in social settings and in the absence of medical advice? While the evidential bar cannot be set too low because it is necessary for the court to assure itself that the patient in question did intend to forsake treatment, setting the evidential bar too high will also thwart many perfectly valid wishes and in the process undermine the very purpose of recognising anticipatory decisions.

5.7 A second aspect of Re LP worth highlighting is the court”s approach in the absence of such clear and express anticipatory decisions. Most common law jurisdictions currently adopt either the ‘substituted judgment’ test or the ‘best interests’ test. While Choo J decided the case on the basis of the latter test, it is not entirely clear if he also rejected the former. As...