Biomedical Law and Ethics

Citation(2016) 17 SAL Ann Rev 138
Date01 December 2016
Published date01 December 2016
Introduction

6.1 The year 2016 saw two significant decisions. In Hii Chii Kok v Ooi Peng Jin London Lucien1 (“Hii Chii Kok”), the High Court considered questions of informed consent and non-delegable duty (“NDD”) in a medical negligence action. In Singapore Medical Council v Wong Him Choon2 (“Wong Him Choon”), the Court of Three Judges allowed an appeal by the Singapore Medical Council (“SMC”) against the decision of a disciplinary tribunal (“DT”) to acquit a medical practitioner of professional misconduct. The medical practitioner had been charged with inappropriately: giving a patient insufficient hospitalisation leave; and certifying the patient to be fit to perform light duties. The Court of Three Judges also made several observations in the process.

Informed consent

6.2 The decision in Hii Chii Kok considered the impact of two significant UK Supreme Court's (“UKSC”) decisions on the issues of informed consent and NDD in the healthcare context. This case involved claims in medical negligence for lack of informed consent in a decision to opt for Whipple surgery, and in the post-operative care received. The plaintiff had also brought claims against the National Cancer Centre Singapore (“NCCS”) for breach of a non-delegable duty in relation to the surgery and post-operative care and, alternatively, on the basis of vicarious liability.

6.3 In Montgomery v Lanarkshire Health Board3 (“Montgomery”), UKSC departed from the decision in Sidaway v Board of Governors of the Bethlem Royal Hospital4 (“Sidaway”) that a comprehensive duty of care was owed in relation to diagnosis, advice, and treatment on the basis of the Bolam test.5 For reasons of changed social and legal conditions, the court held that a patient's right to make his own decisions regarding whether to accept medical advice required that the standard of care in rendering medical advice ought to be assessed on the basis of what the reasonable patient was likely to attach significance to, or did in fact place importance on. Adherence to a responsible body of medical opinion on the matters to be disclosed was no longer acceptable in discharging a doctor's duty of care.

6.4 The court in Hii Chi Kok6 made clear that the Sidaway standard for medical advice remains the law in the light of the Court of Appeal's decision in Khoo James v Gunapathy d/o Muniandy7 (“Gunapathy”), although the Court of Appeal had expressly left the question of the merits of a doctrine of informed consent open.8 This assessment has been the consistent line taken at the High Court level.9 Interestingly, the court in Hii Chii Kok went on to analyse Montgomery and considered that, even if the reasonable patient standard were to apply, the defendant had comprehensively disclosed and explained the various alternatives and risks associated with Whipple surgery via his comprehensive written communications with the plaintiff.10 This had more than reasonably enabled the plaintiff to make an informed decision to choose an “aggressive” treatment strategy in relation to his symptoms. This course was perhaps taken in anticipation that on appeal, the issue of departing from Gunapathy (and its preference for a comprehensive Bolam-based duty) was ripe for reconsideration.

6.5 Should Gunapathy be reconsidered in Singapore, in so far as it relates to the issue of what amounts to reasonable medical advice? Earlier High Court decisions had dismissed contrary English decisions like Pearce v United Bristol Healthcare NHS Trust11 because they reflected human rights considerations instantiated by the European

Convention on Human Rights (“ECHR”) and the UK Human Rights Act 1998.12 It is, therefore, significant that the unanimous decision in Montgomery was based on several different considerations, the ECHR being only one of them. UKSC pointed out the doctrinal incoherence in Sidaway of determining the standard of advice in accordance with responsible medical opinion, whilst in the same breath requiring the doctor to address truthfully any questions that the patient did in fact ask.13 Similarly, the exception alluded to by Lord Bridge of Harwich in relation to a “particular risk … so obviously necessary to an informed choice” is just as susceptible to the incoherence critique, reflecting a different basis of assessment rooted in patient autonomy.14 Ironically, the criticisms of incoherence and uncertainty that were levelled against the Canterbury v Spence15 reasonable patient approach in Sidaway have now been similarly brought to bear on the latter decision.

6.6 This reversal of Bolam's fortunes in relation to medical advice can only be fully understood by recognising the significantly changed social and legal circumstances in the UK that their Supreme Court highlighted, human rights being only one of them. For one, the court recognised that patients today, having far better access to and capability of handling medical information, are regarded as rights holders and consumers exercising choice, rather than passive recipients of care.16 Secondly, the UK General Medical Council had itself embraced a basic model of partnership between doctors and patients in its guidance document.17 This guidance recognised a shared model of decision-making where both doctor and patient inputs are necessary to work towards a consensus position that best promotes patient interests – especially in the face of multiple treatment options.18 Finally, UKSC also considered the ECHR jurisprudence that recognises a duty to involve patients in a medical decision, which reinforced its conclusion.19

6.7 Putting the ECHR jurisprudence aside, there have been similar social and professional developments in the Singapore healthcare system that warrant a serious reconsideration of Gunapathy in relation to medical advice. First, healthcare financing in Singapore is ultimately

rooted in a market-based system, notwithstanding extensive government regulation and subvention. One of the clear policy initiatives of the Ministry of Health is to empower patients as consumers here to make better informed choices by publishing better information on healthcare costs.20 It would seem odd for this policy to restrict patient involvement to pricing alone, without weighing this against the inherent therapeutic benefits and risks of proposed treatments. The underlying goal, it is submitted, is more prudent patient choices in healthcare.

6.8 Secondly, the National Medical Ethics Committee (“NMEC”) and SMC have both endorsed a partnership model in healthcare decision-making that will be strengthened and legitimised by moving to a legal patient-centred standard of medical advice. In its “Ethical Guidelines for Healthcare Professionals on Clinical Decision-Making in Collaboration with Patients” report of 2012,21 NMEC noted the same social considerations as UKSC that are changing the nature of clinical encounters between doctors and patients, and that the “next step towards better health outcomes has been the involvement of patients in their own medical care, with decisions made in partnership with physicians, rather than by physicians alone”.22 In such a partnership model, NMEC recognised that the patient autonomy is the primary ethical principle at play, although this does not render medicine a mere commodity that patients can adequately handle on their own as many are vulnerable because of their illness.23

6.9 In the same, consistent vein, SMC's latest Ethical Code and Ethical Guidelines: 2016 Edition (“ECEG”), which came into force on 1 January 2017, emphasise much more clearly that an important aspect of the ethic of respecting patient autonomy is ensuring that patients are made aware of:24

… the purpose of tests, treatments or procedures to be performed on them, as well as the benefits, significant limitations, material risks (including those that would be important to patients in their particular circumstances) and possible complications as well as alternatives available to them … [emphasis added]

6.10 It is difficult to see how the ECEG requirements could be fulfilled without considering the perspective of the patient and her goals and circumstances. SMC's accompanying “Handbook on Medical Ethics”25 also endorses the partnership or shared decision-making model, and provides numerous factors to be considered in determining the level-of-risk disclosure.26 This gradual but steady recognition of the importance of respecting patient autonomy in healthcare decision-making has similarly been recognised statutorily: the first step being the setting up of the Advance Medical Directive Act27 framework that empowered patients so minded to refuse in advance extraordinary life sustaining treatment in cases of terminal illness. Subsequently, the enactment of the Mental Capacity Act28 introduced the principles of the presumption of capacity, requirement to take all practicable steps to help persons make their own decisions, and respect for autonomous decisions even if they are “unwise”.29

6.11 Nevertheless, there is legitimate concern that a move to a patient-centred standard will also entail new uncertainty over what counts as material risk that must be disclosed and explained. This can lead to disclosure practices that amount to defensive medicine, entailing additional consultation time that adds to overall healthcare costs without necessarily improving the quality of healthcare decision-making. There are a couple of ways that the law on informed consent may mitigate these downsides. First, as Montgomery makes clear, informed consent is not to be foisted on every patient. It is equally consistent with autonomy for a patient to decline to be engaged with the specifics of risk, alternatives, and choice in medical decision-making, and prefer to defer to their doctor's or family's assessment and recommendations. Montgomery expressly allows for this alternative,30 as

does NMEC in its collaborative decision-making guidelines.31 Secondly, in the...

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