49TH SINGAPORE-MALAYSIA CONGRESS OF MEDICINE (SMCM)

Transcription

1 RODYK & DAVIDSON LLP 49TH SINGAPORE-MALAYSIA CONGRESS OF MEDICINE (SMCM) THE CURRENT LAW OF CONSENT IN SINGAPORE LEK SIANG PHENG PARTNER LITIGATION & ARBITRATION PRACTICE GROUP 2 August

2 THE IMPORTANCE OF TAKING CONSENT > Why is consent important? > Patient autonomy and right to self-determination > What constitutes a valid consent? > Sufficient information being given to the Patient (informed consent) > Patient s understanding of the information provided > Consent must be voluntarily given 2

3 THE IMPORTANCE OF TAKING CONSENT > Central theme of presentation: How much information must be provided to the Patient before there is informed consent? > Scope of presentation: Current law of consent in Singapore and potential changes moving forward 3

4 HOW CONSENT FEATURES IN MEDICAL CARE > As a matter of law: > Potential civil liability > Medical negligence (failure to provide proper advice) > Bolam / Bolitho test > Assault / battery (performing medical treatment without the Patient s prior consent) > Potential criminal liability for performing treatment without Patient s consent 4

5 HOW CONSENT FEATURES IN MEDICAL CARE > As a matter of professional ethics: Singapore Medical Council Ethical Code and Ethical Guidelines > Potential professional disciplinary action by the SMC > Overlap? 5

6 COMMONLY ASKED QUESTIONS > Point of contention: How much must you inform the patient in order for his consent to be valid? > What / how much information must a patient be provided? > What if telling the patient too much deters him from treatment? > Does the Bolam test apply to medical advice? 6

7 PRESENT STATE OF LAW OF CONSENT IN SINGAPORE Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (English High Court) The Bolam test: [A doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting in the other way round, a [doctor] is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. 7

8 PRESENT STATE OF LAW OF CONSENT IN SINGAPORE Bolitho v City and Hackney Health Authority [1998] AC 232 (English House of Lords) > Bolam test is supplemented by the Bolitho qualification : Some key points: > Judges are not bound to find a defendant doctor not negligent just because the doctor leads evidence from a number of medical experts who are genuinely of the opinion that the treatment or diagnosis accorded with sound medical practice. > There would have to be a logical basis for the opinion, which would involve a weighing of risks against benefit in order to achieve a defensible conclusion. the threshold test of logic > If the opinion is not capable of withstanding logical analysis, then the judge is entitled to reject the opinion on the basis that it is not reasonable or responsible. 8

9 PRESENT STATE OF LAW OF CONSENT IN SINGAPORE Khoo James v Gunapathy d/o Muniandy [2002] 1 SLR(R) 1024 (Singapore Court of Appeal) > Facts: > Plaintiff was diagnosed with brain tumour > D1 performed open brain surgery and removed the tumour > D2 administered post-operative radiotherapy treatment > MRI scan later revealed a small nodule in the brain > D1 advised plaintiff that nodule likely to be a tumour and recommended radiosurgery > Post-radiosurgery: Plaintiff suffered paralysis of right body and severe speech defects > Plaintiff sued D1 and D2 9

10 PRESENT STATE OF LAW OF CONSENT IN SINGAPORE > One of the allegations of negligence: D1 did not sufficiently advise on risks of radiosurgery > D1 s advice: > Radiosurgery a simple, half day sort of a job > 5% risk of complications including brain swelling and possible stroke > Did not advise on increased risk of radionecrosis due to previous radiotherapy > Both defence experts agreed that D1 s advice was satisfactory 10

11 PRESENT STATE OF LAW OF CONSENT IN SINGAPORE > Court of Appeal s decision in Khoo James: the Bolam test applies to medical advice given to a patient > we found that the defendant doctors disclosure of the relevant percentage risks of radiosurgery was supported by a respectable body of medical opinion. They had not given negligent advice to Gunapathy. > Qualified by Bolitho: The Court can disregard medical opinion if it is not reasonable or responsible. 11

12 PRESENT STATE OF LAW OF CONSENT IN SINGAPORE > Caution: Court of Appeal s acceptance in Khoo James of the Bolam test was qualified > We would emphasise that this is not the appropriate place to address a fully argued appeal on the merits of the doctrine of informed consent. The issue did not arise in the submissions before us and we would not pronounce on it as such. 12

13 DEVELOPMENTS OF THE LAW OF CONSENT IN UK Sidaway v Board of Governors of the Bethlam Royal Hospital and Maudsley Hospital [1985] 1 All ER 643 (English House of Lords) > Majority of House of Lords in Sidaway: Accepted the Bolam test for medical advice > Rationale: Grounded in medical paternalism 13

14 DEVELOPMENTS OF THE LAW OF CONSENT IN UK > Minority of House of Lords in Sidaway : Rejected the Bolam test for medical advice > Rationale: Respect for a Patient s right to selfdetermination > Patient autonomy is paramount, patient should have all information necessary in order to meaningfully decide whether to undergo treatment 14

15 DEVELOPMENTS OF THE LAW OF CONSENT IN UK Montgomery v Lanarkshire Health Board [2015] UKSC 11 (UK Supreme Court) > Facts: > Plaintiff (Patient) was expecting and known to be suffering from insulin dependent diabetes mellitus - likely that the baby will be larger than normal > There was a 9-10% risk of shoulder dystocia; 0.1% risk that the baby s umbilical cord will be occluded, causing hypoxia leading to cerebral palsy or death 15

16 DEVELOPMENTS OF THE LAW OF CONSENT IN UK > O&G doctor s advice: > Baby will be larger than normal > Did not advise on: (1) shoulder dystocia, and (2) associated mechanical problems > During induced labour, shoulder dystocia occurred, doctor attempted forceps delivery but only managed to deliver baby after 12-minutes of baby s shoulder being stuck in mother s pelvis > Baby s umbilical cord was occluded during the process and diagnosed with cerebral palsy due to hypoxia 16

17 DEVELOPMENTS OF THE LAW OF CONSENT IN UK > Issues: > Whether the O&G doctor s advice was deficient and negligent? > Does the Bolam test still apply to medical advice? > UK Supreme Court s decision: > Court held that the Bolam test no longer applies to medical advice 17

18 DEVELOPMENTS OF THE LAW OF CONSENT IN UK > Reasoning in Montgomery: > Changing nature of patient-doctor relationship no longer justifies medical paternalism > Patients are no longer passive recipients of care and are consumers of medical services with the right of choice > Patients are now better informed and have greater access to medical information > Shift from medical paternalism to doctors working in partnership and in collaboration with the patient 18

19 DEVELOPMENTS OF THE LAW OF CONSENT IN UK > Reduction of medical litigation? > If patients are properly advised on the risks of treatment and take responsibility in choosing to undergo treatment Less likely to blame doctor 19

20 DEVELOPMENTS OF THE LAW OF CONSENT IN UK > Doctor s duty redefined: The doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks of treatment and of any reasonable alternative or variant treatments > Material risks? > Whether, in the circumstances of the present case, a reasonable person in the patient s position would likely attach significance to the risk OR > Whether the doctor is or should reasonably be aware that the particular patient would likely attach significance to the risk 20

21 DEVELOPMENTS OF THE LAW OF CONSENT IN UK > Factors relevant to determining materiality of risk: > Nature of the risk > Effect which its occurrence may have on the patient s life > Importance to the patient of the benefits sought to be achieved by the treatment > Available alternatives > Risks involved in those alternatives > Characteristics of the patient expressions of concern by the patient and specific questions asked 21

22 DEVELOPMENTS OF THE LAW OF CONSENT IN UK > Role of medical expert evidence: Still relevant to determining the character of risk, but the Court has the final say on materiality > Rare risks: Even if a risk is rare but carries significant consequences (e.g. death / paralysis), it should be a material risk requiring disclosure 22

23 DEVELOPMENTS OF THE LAW OF CONSENT IN UK > Examples: > Risk of blindness in one eye ought to be highlighted to a patient who is already blind in the other eye > Risk of paralysis may be material where the purpose of the operation was not to save life but only to relieve pain > In the Montgomery case: The percentage risk of shoulder dystocia was substantial for vaginal delivery whereas the risks of elective caesarean section are lesser Therefore, the doctor should advise on the risk of shoulder dystocia and the risk of injury to the baby and mother 23

24 DEVELOPMENTS OF THE LAW OF CONSENT IN UK > Exceptions: > Therapeutic exception: A doctor will be entitled to withhold information of risk if he reasonably considers that its disclosure would be seriously detrimental to the patient s health > A limited exception > Necessity: E.g. where a patient is unconscious and urgently requires treatment 24

25 IMPACT OF MONTGOMERY IN SINGAPORE > Development in English common law mirrors the earlier developments in Canada, Australia, US and Malaysia > Will Singapore follow the same approach? It remains to be seen > Singapore cases have been applying the Bolam test (bound by Gunapathy) but have not discussed the doctrine of informed consent in depth > The Montgomery test has not yet been discussed before the Singapore Court of Appeal (the highest court) > To some extent, Singapore common law tends to mirror the developments in English law > Singapore may strive to achieve consistency with other common law jurisdictions UK, Canada, Australia, US and Malaysia 25

26 IMPACT OF MONTGOMERY IN SINGAPORE > Recent Singapore medical negligence decision: > Chua Thong Jiang Andrew v Yue Wai Mun and another [2015] SGHC 119 (Singapore High Court) The Court mentioned the Montgomery case but did not go into a discussion of the case; accepted the Bolam test > Whether the surgeon ought to have discussed the 2 different surgical approaches when taking consent 26

27 IMPACT OF MONTGOMERY IN SINGAPORE > Note: Doctors are already under an ethical duty to obtain informed consent before commencing treatment > Para of the Singapore Medical Council Ethical Guidelines (on informed consent) states: > It is a doctor s responsibility to ensure that a patient under his care is adequately informed about his medical condition and options for treatment 27

28 IMPACT OF MONTGOMERY IN SINGAPORE > The patient shall be made aware of the: > Benefits of the procedure > Risks of the procedure > Possible complications of the procedure > Any alternatives available to him 28

29 CONCLUSION > Singapore law is in an uncertain state as regards the continued applicability of the Bolam test to the law of consent > As it stands, the Bolam test still applies to consent in Singapore, however, this increasingly appears to be on shaky ground 29

30 THE CURRENT LAW OF CONSENT IN SINGAPORE THANK YOU RODYK & DAVIDSON LLP SINGAPORE 80 Raffles Place LEK SIANG PHENG PARTNER LITIGATION AND ARBITRATION Telephone: This presentation is for general information purposes only. Its contents are not intended to be legal or professional advice and are not a substitute for specific advice relating to particular circumstances. Rodyk & Davidson LLP does not accept responsibility for any loss or damage arising from any reliance on the contents of this presentation. If you require specific advice or have any questions, please contact our presenter or any Rodyk partner. Rodyk & Davidson LLP Limited Liability Partnership Registration No. T07LL0439G #33-00 UOB Plaza 1 Singapore Tel Fax mail@rodyk.com SHANGHAI Unit Ocean Towers No. 550 Yan An East Road Shanghai , China Tel +86 (21) Fax +86 (21) shanghai.mail@rodyk.com 30