Re LP (adult patient: medical treatment)

• Judge: Choo Han Teck J
• Judgment Date: 23 January 2006
• Neutral Citation: [2006] SGHC 13
• Citation: [2006] SGHC 13
• Date: 23 January 2006
• Published date: 24 January 2006
• Plaintiff Counsel: Chong Fook Choy Christopher (Rodyk and Davidson)
• Docket Number: Originating Summons No 38 of 2006
• Court: High Court (Singapore)
• Subject Matter: Whether application made ex parte,Inherent,Whether High Court having jurisdiction to hear such application,Application for declaration on legality of medical treatment,Civil Procedure,Jurisdiction,Mental disorders and treatment act,Whether third party can apply for Committee of Person,Whether court can exercise inherent jurisdiction to hear application for consent in absence of Committee of Person,Mental Disorders and Treatment

23 January 2006

Choo Han Teck J:

1 This was an urgent application by the Mount Alvernia Hospital, represented by Mr Christopher Chong. In the application, the applicant prayed that this court declares a proposed surgery by the doctors in charge of a patient, Mdm LP, at the hospital, involving the amputation of both legs, below the knee, to be lawful. The patient had no known relative except her 16-year-old son, L, who was present but not legally represented, at the hearing of the hospital’s application. The patient is 51 years old and, according to her son, L, worked as a real estate agent. His father is in the Philippines and could not be reached. In any event, the father has scant contact with either LP or L as he is not, and never was, married to LP. L had just completed his “O” level examinations. Though he spoke clearly, calmly, and with a maturity of an adult, he was still a minor. Although such applications ought not normally be made ex parte, given the circumstances in the present case, I proceeded to hear the application because there was, in my view, insufficient time for a guardian ad litem to be appointed for L. See St George’s Healthcare NHS Trust v S [1999] Fam 26. I will revert to the issue of jurisdiction shortly.

2 Mdm LP is a diabetic and consulted Dr Tan Mak Yong (“Dr Tan”) at the Gleneagles Medical Centre on 13 October 2005. She complained of pain in both feet and told Dr Tan that she had been to the Singapore General Hospital as well as the Tan Tock Seng Hospital where the doctors told her that her right leg had to be amputated. According to Dr Tan, she refused to consent to that operation and wanted her legs saved at all costs. Dr Tan observed that Mdm LP had “right foot infection with gangrene of her right big toe and several superficial burn wounds over her left foot”. On 14 October 2005, she was persuaded by Dr Tan to have an amputation of only her right toe. She was discharged on 31 October 2005. Unfortunately, her condition worsened in that the infection in her right leg did not improve and had spread to her left leg by the time she saw Dr Tan again, that is, on 12 November 2005. According to Dr Tan, she was conscious and alert, and again told him to “save her legs at all costs”. It did not appear that there was a danger of death at that time. On 21 November 2005, Mdm LP was found to be in septic shock and was “not rousable.” Dr Tan was of the view that the patient’s comatose state was caused by the septic shock arising from the infection in her legs. He deposed in his affidavit that between 12 November 2005 and 21 November 2005 it was not made known to her that she would die if her legs were not amputated. The patient thus went into a coma before any such discussion could take place. The doctors tried further operations to remove the infected parts of her legs up to 28 November 2005 without success. Her legs were still infected and Dr Tan deposed that:

Medically, the only option is to carry out bilateral below knee amputations urgently to improve the chances of the Patient’s condition, as the amputation can help in the control [of] the sepsis. If not, the infection will worsen and the Patient will die.

3 The medical opinion of Dr Tan was supported by other qualified specialist doctors including Dr Leonard Koh, an endocrinologist, Dr Lam Mun San, a specialist in infectious diseases, Dr Tan Chai Beng, a neurologist, and Dr Sittampalam Krishnamoorthy, an orthopaedic surgeon. I was satisfied that the medical condition of Mdm LP had become critical and I accept the medical opinion that unless the amputation of her legs was carried out she would soon die. The application before me was necessitated by the doctors’ dilemma that on the one hand, they were all of the view that the operation would be in the patient’s best interests, and on the other hand, they had not obtained the patient’s consent for the surgery, a situation complicated by the patient’s previous statement to the doctors to save her legs at all costs. The patient was now unable to give consent by reason of her comatose state. The only relative that the hospital was able to reach was her son, L. There was, therefore, a genuine doubt, so far as the doctors were concerned, as to whether the proposed surgery could proceed. Since this was a matter of life and death, and there was no viable alternative, it was prudent for the hospital to make this application. The doctors had not stated that Mdm LP would regain consciousness after the amputations. That meant that it was possible that Mdm LP might remain in a comatose state indefinitely – without her legs. Would that be worse for her? This question must be answered in context. What could it be worse than? The existence or non-existence of her legs cannot be worse if she never regained consciousness. It might be worse for her son because he would have an unconscious mother without legs; but again, what would that mean in context? Avoiding what might be worse off for her son may not necessarily be in the best interests of the patient herself. The best interests of the family is not to be confused with the best interests of the patient, especially one in the present circumstances where the patient is incapable of being affected by what happens to her family or what her family might feel or go through. It would then be a question of whether living without legs, even in a comatose state, would be in the best interests of Mdm LP? These were all very difficult questions to answer. Opinions in such cases, even among the doctors, might differ, as might between members of a patient’s family, and between the family and the doctors. Weighed against the medical possibilities, namely, that without the operation she would likely die, that she might still die in the course of or after her operation, and, that she might live and regain her consciousness, I accept the doctors’ opinion that amputation of both her legs would be in Mdm LP’s best interests.

4 It will be noted that the application was for a declaration that the surgical operation would be lawful, and not that the court gives consent on behalf of the patient. This was not a directly relevant issue given the way the application was stated, but it was an important point to be considered because the applicant had also asked the court to grant any other relief that it thought fit. Generally, a person who is sufficiently matured is entitled to give or withhold consent to any medical treatment and the doctors are entitled, if not obliged, to respect that person’s decision. No one else, however close by reason of kinship or friendship, is legally entitled to make that decision for the patient. Where a patient is incapable of giving or withholding such consent, a third party may apply to the court under the Mental Disorders and Treatment Act (Cap 178, 1985 Rev Ed) for a Committee of Person to be appointed for the purpose of acting in place of the patient and to give or withhold consent as the case may be. When this is done, the doctors may proceed as if the consent or lack thereof came from the patient herself. In cases in which the medical condition is critical, such as the present case; or for various reasons like the absence of anyone who may want or can be made a Committee of Person, which is also the case here, the court will have to exercise its inherent jurisdiction in such manner as it thinks right and proper to hear an application such as the present one before me. It would be noted that Proviso 19 of the First Schedule of the Supreme Court of Judicature Act (Cap 322, 1999 Rev Ed) gives the court the power to “order medical examination of a person who is a party to any proceedings where the physical or mental condition of the person is relevant to any matter in question in the proceedings”. But that is a specific provision that does not relate to the giving of consent to medical treatment. Mr Chong drew my attention to s 61 of the Mental Disorders and...