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    01:46 PM Hairul Hakkim (Justices’ Law Clerk, Supreme Court, Singapore) and Kevin Ho Hin Tat (Practice Trainee, WongPartnership LLP)

    The end of the “doctors know best” era – from medical paternalism to patient autonomy

        

    Introduction

    When can a doctor be sued for giving negligent medical advice? The principles in Bolam v Friern Hospital Management Authority [1957] 1 WLR 582 together with the addendum in Bolitho v City and Hackney Health Authority [1998] AC 232 (collectively, the “Bolam-Bolitho” test) have long governed the standard of care to be met by doctors. Under this test, a doctor would not be negligent if his conduct can be supported by a reasonable body of medical practitioners whose conclusion is logically defensible. This has also been the local position in Khoo James and another v Gunapathy d/o Muniandy and another appeal [2002] 1 SLR(R) 1024 (“Gunapathy”), which held that the Bolam-Bolitho test should apply to all aspects of doctor-patient interactions, encompassing diagnosis, advice and treatment of the patient (at [141] and [143]). In Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38 (“Hii Chii Kok”), the Singapore Court of Appeal (“the Court”) departed from this decade-old approach. The Court, noting the “seismic shift” in medical ethics and societal attitudes since a decade ago (at [120]), held that the Bolam-Bolitho test should no longer apply insofar as medical advice is concerned.

    Facts of the decision

    The appellant (“the Patient”) is a Malaysian businessman who was referred by his physician in Malaysia to the second respondent, National Cancer Centre of Singapore for a Gallium PET/CT scan in order to detect whether nodules in his lungs were tumours. However, the scan surfaced incidental findings relating to two lesions in the head and body of the Patient’s pancreas, which the doctors diagnosed had the potential to be cancerous, although not certain. The Patient was then further referred to the first respondent, Dr Ooi, a senior consultant with a specialty in pancreatic surgery, who made a similar diagnosis (hereinafter both respondents collectively referred to as “the Respondents”).

    There were three options. The patient could either opt for surgery for both lesions, remove only one of them, or adopt a wait-and-see approach for six months before performing another scan (although there was the risk of the cancer spreading if the lesions were cancerous). Dr Ooi was in favour of the first option of surgical removal for both lesions, which necessitated the “Whipple procedure”. The Whipple procedure would only be necessary if the pancreatic head lesion was removed. The Patient decided to remove both lesions, and undertake the Whipple procedure. Both lesions were eventually determined to be non-cancerous. Subsequently, the Patient suffered significant post-operative complications, which required further surgery to rectify.

    The Patient then sued the Respondents for negligence in all three aspects (diagnosis, advice and treatment) in the High Court. The Patient argued, inter alia, that he was not adequately informed about the nature of the Gallium PET/CT scan and its possible uncertainties, that he was not informed about the alternative of removing only the pancreatic body lesion instead of both lesions thereby avoiding the Whipple procedure, and that the Respondents were negligent in the post-operative treatment. The Patient’s action was dismissed entirely by the trial judge, and the Patient appealed to the Court. The Court largely agreed with the trial judge's decision, although it took the opportunity to revisit the law on the test for negligence in relation to medical advice.

    Court’s decision

    The appropriate test for diagnosis and treatment: the Bolam-Bolitho test

    The Court started by addressing the argument for full abolition of the Bolam-Bolitho test, which focused on the criticism that the Bolam-Bolitho test conferred “near immunity on the medical profession” as it would not be hard for a defendant doctor to find other experts to support his opinion (at [79]). However, the Court viewed this response as “unnecessarily radical”, as judges are not equipped to adjudicate on controversies that even medical experts cannot agree on (at [81]). The Court also alluded to other policy reasons such as the need to avoid discouraging medical innovation over the risk of potential litigation (at [82]).

    However, the Court disagreed with the hitherto view that the three aspects of diagnosis, treatment and advice are “monolithic and capable of being assessed with reference to a single test” (at [90]). Whilst the doctor has a “single, overarching duty” to the patient, this duty may be expressed in different forms and assessed through different tests (at [92]).

    In relation to the diagnosis aspect of the doctor-patient relationship, the Court observed that doctors often cannot arrive at conclusive findings in interpreting the patient’s information, and frequently have to rely on their “experience, good sense and sound judgment” (at [101]). Moreover, medical knowledge is “imperfect and evolving” and doctors may have to recommend certain treatment even in the absence of a “definitive diagnosis” (at [101]). As such, even reasonable doctors may disagree over the appropriate diagnosis. Hence, the “peer review-based” Bolam-Bolitho test should continue to apply to the diagnosis aspect with “great force” (at [101]). The Court noted that similar reasons militated in favour of retaining the Bolam-Bolitho test in relation to the treatment aspect. In fact, greater leeway will be given to a surgeon in the dynamic context of surgery where it is unfair to predict what the surgeon ought to have done (at [102]).

    In applying the Bolam-Bolitho test to the facts of Hii Chii Kok, the Court found that the Respondents’ diagnosis and post-operative treatment did not breach the requisite standard of care (at [183] and [221] respectively).

    The appropriate test for provision of advice: the Modified Test

    However, the Court disagreed that the Bolam-Bolitho test is appropriate in the context of medical advice. The essential difference between the three aspects of the doctor-patient relationship is in the “degree of passivity” on the patient’s part (at [93]). The patient is a passive participant at both the diagnosis and treatment stage because the patient is either providing information to the doctor running the diagnostic tests, or even unconscious in cases of surgical treatment. However, at the advice stage, the focus shifts to the patient who assumes an active (rather than passive) role because the decision to undergo treatment lies with the patient (at [93]–[94]).

    Additionally, the legal test should also take into account the ethical principles operating at the background. The Court was of the view that the physician-centric view of the Bolam-Bolitho test does not accord with the modern expectations of society which is more educated and has easier access to knowledge (at [119]). Instead, the Court referenced the Singapore Medical Council’s Ethical Code and Ethical Guidelines (2016) which noted that the new generation of patients are “far better informed about medical matters, their choices and rights” (at [118]). The Bolam-Bolitho test does not adequately give effect to the principle of autonomy of the patient, as the patient’s right to information would be dictated by the opinions of medical practitioners (at [125]). Additionally, a peer-review standard is not appropriate because advice to patients is not “a matter of purely professional judgment” (at [122]) and thus “less deserving of judicial deference” (at [125]).

    For these reasons, the Court adopted the UK Supreme Court’s watershed judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11 (“Montgomery”) which recently departed from the long-standing Bolam-Bolitho test, specifically in relation to the advice aspect. The Court however made certain modifications to the Montgomery test. The test adopted by the Court consists of three separate stages (“the Modified Test”):

    1. First, the patient has to establish that the information he alleges was not given to him was relevant and material, or information that a doctor knows was important to the particular patient in question (at [132]). This would include the advantages and disadvantages of alternative treatments and the consequences of foregoing treatment (at [142]).
    2. Second, the court will determine if the doctor was in possession of the information at the material time of giving the advice. If answered in the negative, then the proper recourse would be to sue for negligent diagnosis or treatment instead, rather than negligent advice (at [133]).
    3. Third, if the information was material and within the doctor’s knowledge, the court would determine if the doctor was reasonably justified in withholding the information (at [148]). The Court alluded to several key exceptions to disclosure, such as waiver, treatment provided on an emergency basis, and therapeutic privilege (at [149]).

    On the facts, the Patient raised 14 points relating to, inter alia, specific information about the Gallium test (such as the fact that it was a new scan used on only 20 patients thus far), as well as the uncertainty of the diagnosis of the cancerous nature of the lesions, and that the Respondents ought to have informed him that it was advisable to surgically remove only the pancreatic body lesion, instead of both lesions, which would have obviated the need to undergo the Whipple procedure.

    The Court held that the number of times the scan was used was not material information that had to be disclosed (at [186]). Although the uncertainty involved in the scan and the alternative of removing only the pancreas body lesion were considered material information, the Court found that the Respondents had indeed disclosed such information to the Patient. Hence, the Patient’s appeal was dismissed.

    Our analysis

    How is the Modified Test different from the original?

    First, the Modified Test makes it clear that the doctor has to disclose material information, which is not limited to “risk-related information” (at [138]). This goes further than the original Montgomery test, which only concerns itself with material risks. In this vein, material information includes other information that may be needed to enable patients to make an informed decision about their health (at [138]) and is ultimately a matter of “common sense” (at [139], [143]).

    At first glance, expanding the category from risks to information could be seen as widening the ambit of disclosure too broadly and placing the doctor under undue responsibility to disclose. However, the Court did cut back on the scope, as the type of information considered material would typically include the doctor’s prognosis of the condition, nature and risks of the treatment (and alternative treatments) (at [138]). Furthermore, these are factors which would be similarly captured under the broad interpretation of the concept of “risk” under the original Montgomery test (Montgomery at [87]). Besides, the Court cautioned that doctors are not expected to, and in fact, should not be providing a patient with excessive information, resulting in an “information dump” that he cannot comprehend (at [143]).

    The second modification is the inclusion of the second stage of the Modified Test, which determines whether the doctor was in possession of the material information in the first place. Rather than a modification per se, it is a logical corollary of the Montgomery test, since a doctor cannot possibly disclose that which he is not in possession of.

    The third modification is that the Court expressly left open the door for other possible exceptions in the third stage (at [149]) and in doing so, went further than the decision in Montgomery which simply recognised the waiver, therapeutic privilege and necessity exceptions. It remains to be seen how willing the Singapore courts would be to recognise other exceptions.

    The therapeutic privilege exception

    Focusing on the exception of therapeutic privilege, it applies where the doctor reasonably believes that provision of the material information would cause the patient “serious physical or mental harm” (at [152]). This may extend beyond mental incapacity cases, where the patient’s decision-making abilities are impaired by factors such as low intellectual abilities or anxiety disorders (at [152]). It is worth noting that the Court retained the descriptor of “privilege” (employed in previous decisions), unlike Montgomery, which characterised it as the “therapeutic exception” (there was not a single mention of “privilege”). In this connection, it has been argued that the change in terminology in Montgomery was a conscious (albeit unexplained) decision to avoid the paternalistic perception of “privilege”, which implies a special status for doctors (Cave, Emma “The Ill-informed: Consent to Medical Treatment and the Therapeutic Exception” [2017] Common Law World Review (“Consent to Medical Treatment”) at p 11).

    That said, it might simply be a matter of semantics, given that the Court decided that the therapeutic privilege is to be assessed using an objective test, instead of the Bolam-Bolitho test (which would continue to govern the necessity exception). This is a significant development, given that Montgomery did not offer a definitive answer as to what test governs the doctor’s reasonableness in invoking the therapeutic exception. In fact, it has been argued by multiple commentators that Montgomery suggests that the Bolam-Bolitho test would continue to govern the exception in some instances (see, eg, Consent to Medical Treatment at pp 22–23).

    Regardless of whether this diverges from the UK position, the Court was motivated to do so in order to prevent the abuse of the exception by doctors making decisions for patients who were in fact capable of doing so themselves (at [153]). This is a legitimate consideration, which would pay heed to the warning in Canterbury v Spence 464 F.2d 772 that any exception should be circumscribed, for otherwise it might “devour the disclosure rule itself”, and result in re-creeping of the Bolam-Bolitho test (at 789). Allowing the Bolam-Bolitho test to operate for such an exception may generally be inconsistent with the emphasis on patient autonomy, and a step back towards medical paternalism.

    Whither the Bolam-Bolitho test for the therapeutic privilege exception?

    The Court retained the Bolam-Bolitho test with respect to the necessity exception because of the importance of the doctor’s perspective, since the question is whether the situation necessitated urgent treatment (at [151]). In contrast, the Court perceived the patient’s perspective as more important for the therapeutic privilege exception, which focuses on whether the patient, in his state and condition, was incapable of making a choice and would be harmed by the provision of information (at [153]). However, it could equally be argued that for some cases of therapeutic privilege, the doctor’s perspective could also be crucial where an expert determination is required as to whether provision of the material information could engender any serious physical or mental harm to the patient. This is further buttressed by the explanation in Montgomery that the therapeutic exception is a matter that requires the “reasonable exercise of medical judgment” (where the Bolam-Bolitho test could be relevant), unlike the general rule for disclosure where the judgment on whether to disclose certain information is not governed by medical expertise (at [85]). With respect, whose perspective the exception is focused on could simply be a matter of framing the issue.

    Instead, it is suggested that one basis of relevant distinction, could be whether expert evidence is crucial to the court’s assessment of the applicability of the exception (see also Consent to Medical Treatment at p 23). As the Court acknowledged, it retained the Bolam-Bolitho test for the necessity exception because medical expert opinion will be crucial – the necessity exception would invariably depend largely on expert evidence to show that the patient’s condition required treatment on an emergency basis, thereby rendering the Bolam-Bolitho test appropriate (at [151]).

    Applying the same reasoning, for the therapeutic privilege exception, one can argue that if expert evidence is crucial to the court’s assessment, the Bolam-Bolitho test would be more appropriate than the objective test. However, if expert evidence is merely helpful to the court’s assessment of whether it would be in the best interests of the patient to withhold disclosure of information, the objective test is more appropriate.

    In assessing the applicability of the therapeutic privilege, expert evidence may be required, inter alia, to assess the psychological implications of a particular mental or anxiety disorder that the patient suffers from (for instance whether a person suffering from Post-Traumatic Stress Disorder may suffer mental harm upon disclosure of the material information). Where such expert evidence is crucial to determine issues peculiar to medical knowledge, it might be preferable for the Bolam-Bolitho test to be retained as otherwise, the court might be seen as “playing doctor” and risk adjudicating in matters it has no expertise in (Gunapathy at [144]). This approach is unlikely to lead to an abuse of the therapeutic privilege exception because situations where the applicability of the exception turns crucially on expert evidence would be rare and in most cases, expert evidence is only likely to be helpful rather than crucial (Hii Chii Kok at [153]). In such cases, the judge is more than equipped to apply the objective test to arrive at the right outcome.

    Conclusion

    With the adoption of Montgomery, Singapore has aligned itself with other Commonwealth jurisdictions, including Australia and Canada, in moving towards a patient-centric approach in matters of medical advice. At the heart of the decision lies the importance of the doctor engaging the patient in a two-way dialogue, where the doctor provides material information tailored to the specific needs of the patient. It reflects a growing attitude amongst increasingly educated and informed (Google-savvy) patients that the “doctor knows best” approach is no longer relevant, and that patients should be given information to make calculated decisions about their own healthcare. It is also an open question whether this might prompt the courts to re-consider the standard of care in other areas of professional negligence.

     

    * Hairul Hakkim (Justices’ Law Clerk, Supreme Court, Singapore) and Kevin Ho Hin Tat (Practice Trainee, WongPartnership LLP)

    *  The opinions contained in this commentary reflect the authors’ own views and are not to be understood as reflecting the views of the authors’ employers.

    ** This blog entry may be cited as Hairul Hakkim and Kevin Ho Hin Tat, “The end of the “doctors know best” era – From medical paternalism to patient autonomy”  (16 July 2017) (http://www.singaporelawblog.sg/blog/article/191)

    *** A PDF version of this entry may be downloaded here

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