Case Comment: WHEN DEATH KNOCKS, WHO WILL ANSWER AND WHAT WILL THEY SAY?

Published date01 December 2006
AuthorPaul TAN LLB (Hons) (National University of Singapore); Justices’ Law Clerk, Supreme Court of Singapore.
Date01 December 2006
Citation(2006) 18 SAcLJ 493

Re LP (adult patient: medical treatment) [2006] 2 SLR 13

Re LP (adult patient: medical treatment) confronted, for the first time, the difficult question of whether an incompetent patient should be kept alive by invasive medical procedures notwithstanding an earlier indication (while competent) rejecting that procedure even if it would lead to her death. This case comment examines the approach taken by the court in arriving at the decision and analyses whether the approach is congruent with our legal jurisprudence and our moral instincts as to the practical consequences that the decision will engender. It also considers the direction that the law ought to take and the role of the courts in deciding such matters.

I. Introduction

1 Given the advanced state of medical technology in Singapore, it was inevitable that the question of whether an incompetent patient (who had earlier, while competent, indicated that she did not consent to a certain medical procedure) should nevertheless be kept alive by that same procedure would arise. The recent decision by Justice Choo Han Teck in Re LP (adult patient: medical treatment)1 throws up several important issues that threaten, as they have in other jurisdictions, to recur in even more dramatic factual scenarios. The aim of this case comment is to examine the approach taken by Choo J in arriving at his decision and to

analyse whether the approach is congruent with our legal jurisprudence and our moral instincts as to the practical consequences that the decision will engender.

II. The facts of Re LP

2 Truth, as the cliché goes, is stranger than fiction. So is life. Mdm LP was a 51-year-old diabetic who admitted herself to Gleneagles Medical Centre in mid-October 2005. She complained of pain in both feet and was diagnosed as having a “right foot infection with gangrene of her right big toe and several superficial burn wounds over her left foot”. Mdm LP also informed the physician, Dr Tan Mak Yong (“Dr Tan”), that she had already been to two other hospitals where she was told that her right leg had to be amputated. However, according to Dr Tan, Mdm LP refused to consent to the amputation of her right leg. She was, nevertheless, eventually persuaded to agree to the amputation of her right toe.

3 A month later, the infection had spread to her left leg. Nonetheless, she persisted in refusing an amputation of her legs, telling Dr Tan to “save her legs at all costs”. At this time, there was no immediate danger of death.

4 Shortly after, the infection in her legs caused Mdm LP to suffer from septic shock and she lapsed into a coma as a result. Choo J accepted the evidence of Dr Tan and the other specialists who corroborated it that Mdm LP would die if her legs were not amputated. It was, however, never made known to Mdm LP that she would die if her legs were not amputated; although she had previously told her son, L, that she would “rather die than lose her legs”.

5 The only family member that the hospital could reach was L, who was a minor. L’s father was in the Philippines and could not be contacted. According to L, the father was rarely in touch with the family and had never married Mdm LP.

6 Choo J allowed the hospital’s application to proceed with the amputation. However, in a strange twist of fate, Mdm LP woke up from her coma just as the hospital was about to prepare her for pre-surgery tests. It was reported in The Straits Times that her condition was stable but that she was unable to speak and had to breathe with the help of a machine. Dr Tan continued to believe that an amputation would be necessary if the infection flared up again. Mdm LP, on the other hand,

had yet to consent to an amputation of her legs at the time of the news report.2

III. What Re LP decided

7 After deciding that the court had jurisdiction to hear the application, Choo J proceeded to analyse the basis on which to decide whether to grant a declaration validating the legality of the proposed amputation. His Honour began by summarising the contrasting approaches in the US and the UK to the question of how a court should decide whether to authorise proceeding, continuing or ceasing to continue treatment when the patient was no longer competent to decide for herself.

8 As far as the US position goes, Choo J correctly encapsulated the gist of what has become commonly known as the “substituted judgment” test. This test seeks “evidential proof as to what the patient herself would do had she been conscious for a brief moment to be appraised of her condition and to give or withhold her consent as required”.3 As for the UK approach, Choo J characterised it as such:4

While greater emphasis is placed on patient autonomy in America than in the UK, consent is still of paramount importance in the latter jurisdiction. Hence, if there is clear evidence of consent or refusal to consent to any medical treatment, doctors will have to respect the patient’s decision. When it comes to a situation where the patient is incapable of giving her consent, or where such consent (or lack of it) was not made reasonably clear, the doctors would have to treat the patient according to what they think is in the best interests of the patient. … The decision as to what is in a patient’s best interests from the point of view of the doctors is strictly a medical one, and one that is expected to be professionally formed.

9 It may be necessary to clarify the English position. It is true that the English courts accept the principles of self-determination and patient autonomy; however, this is only to a certain extent. Patients of sound mind may reject even life-saving medical treatment no matter how rational or irrational the decision may be.5 Furthermore, for patients who were previously competent, Choo J was correct in observing that “if there is clear evidence of consent or refusal to consent to any medical treatment, doctors will have to respect the patient’s decision”.6 In other words, the English courts have confirmed the legal effect of anticipatory decisions made by the patient.7 The essential difference between the UK and US positions is that absent such a decision by the patient, the English courts will not go on to determine the patient’s values, convictions and feelings in order to ascertain what the patient might have decided were she competent. Instead, the courts will proceed to the “straightforward” test based on the best interests of the patient.8 This is where the English courts have truncated that principle of self-determination.

10 Choo J, however, may have been too quick to surmise that the English approach to the “best interests” test is that it is solely a medical analysis. To be sure, in the House of Lords’ decision of Airedale NHS Trust v Bland,9 four of their Lordships linked the “best interests” test to the Bolam test,10 which meant that the decision as to whether a certain course

of treatment was in the patient’s best interest would be assessed by reference to a practice accepted by a responsible body of medical opinion. This, as we know, means that the medical opinion will often be decisive. However, the cases that have followed appear to take a more holistic approach to the issue. In In re A (Children) (Conjoined Twins: Surgical Separation)11 the English Court of Appeal noted several cases in which the best interests of the patient were not simply equated to the medical best interests of the patient but extended to all facets of the patient’s life.12

11 Having set out these positions, Choo J decided that “[w]here doctors do not have a clear and express consent of their patient, their only course is to act in the best interests of the patient”.13 Because Mdm LP’s desire that her legs be saved at all costs was not made in the knowledge that she would die without the amputation, Choo J was not prepared to accept that her refusal covered the present situation and therefore proceeded to decide the case based on whether the amputation would be in her best interests.14

12 What was interesting was how even though Choo J eventually thought that the “best interests” test amounted to a balancing of medical benefits and disadvantages under English law, his Honour recognised that the answer to what constituted the best interests of a patient could vary drastically among family members, physicians, and presumably the patient herself were she competent. Consequently, his Honour took into account L’s testimony to the court that he was in a dilemma as to whether he would prefer the surgery to go ahead,15 although he was also careful to stress that the best interests of a patient’s family could never be ipso facto equated to the best interests of the patient.16 Choo J then weighed these considerations against the medical possibilities and decided that the amputation was in Mdm LP’s best interests.17

13 The structure of how a court, relying on Re LP, may analyse future cases would be as follows. First, the court will examine whether the patient had made a clear and express pronouncement of whether she would accept or refuse the proposed course of treatment. The court also has to scrutinise carefully whether the decision was made in contemplation of the specific consequences that the patient now faces. This appears to be a narrow test. Even a remark that “I would rather die than lose my legs” will not suffice if it was not made in contemplation of advice that she would die without the operation. Second, if the patient had not made any such refusal or consent clear, then it falls to be decided whether the treatment will be in the patient’s best interests. In this regard, medical opinion will have to be sought. It will also be helpful for the hospital, and the courts, to seek the opinion of the patient’s family, although such opinion is not to be decisive or binding.18 It is up to the court to weigh the opinion of these stakeholders.

14 Unfortunately, it was not made clear if Choo J...

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