Loo Peh Fern and Wen Shan explain why that may no longer be the case for medical advice.

The Court of Appeal, the apex court of Singapore, in Hii Chii Kok v Ooi Peng Jin London Lucien [2017] SGCA 38 has taken another incremental approach in raising the standard of care, this time in relation to a doctor’s duty in advising the patient on medical treatment.  
 
FACTS OF THE CASE
 
The plaintiff patient sued the defendant surgeon for a misdiagnosis of cancer and for rendering wrong medical advice. The medical tests revealed inconclusive signs of cancerous cells in the pancreas. The doctor recommended, and the patient agreed to a Whipple procedure. The surgery itself was uneventful and the histopathological tests came back with “no convincing evidence of malignancy”.
 
Despite usual recovery in the initial post-operative period, about one month after the surgery the patient vomited blood and underwent another surgery where necrotic tissue was found in the stomach due to a leak from the Whipple procedure. The patient’s pancreas and spleen were removed. 
 
The patient sued and lost at the High Court which held that the doctor had not fallen below the standard of care in advising the patient. On appeal, the patient contended that the medical advice given to him was inadequate to enable a reasonable patient to make an informed decision. The Court of Appeal was asked to consider the applicability, suitability and relevance of Bolam specifically in relation to medical advice.
 
While the Court of Appeal found no negligence on the part of the doctor, the Court saw it fit to modify the judicial approach to the standard of care in the aspect of medical advice. Before we turn to this, it is necessary to briefly set out Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 (“Bolam”).
 
THE STANDARD OF CARE
 
For the most part, the combination of two cases sets out the accepted standard of care which is expected of a medical professional. Bolam states that 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”, and Bolitho (administratrix of the estate of Bolitho (deceased)) v City and Hackney Health Authority [1997] 4 All E.R. 771 (“Bolitho”) held that the body of opinion set out in Bolam had to be logical and defensible.
 
This combination, which will be referred to in this commentary as the Bolam and Bolitho Test, in essence means that a doctor is not negligent if the practice is accepted as proper by a responsible body of medical men skilled in that particular art, and the practice is both logical and defensible. This was adopted by Singapore in Khoo James and another v Gunapathy d/o Muniandy and another appeal [2002] 1 SLR(R) 1024.
 
Historically, Bolam was decided in 1957, a time where the principle of beneficence to the patient was prioritised over patient autonomy; in other words, the “doctor knows best”. In the decades after Bolam, the movement emphasising patient autonomy developed. An early response came from Lord Scarman in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] (“Sidaway”) AC 871 who proposed the development of the doctrine of informed consent in the following terms:
 
“(1) right to determine what shall be done with his own body. (2) The consent is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgably the options available and the risks attended upon each … The doctor must, therefore, disclose all “material risks”.”
 
His Lordship’s reasoning was that Bolam was unsuitable where it concerned the doctor’s duty to warn of a risk because “in a medical negligence case where the issue is as to the advice and information given to the patient as to the treatment proposed, the available options and the risk, the court is concerned primarily with a patient’s right. The doctor’s duty arises from his patient’s rights.” It must be emphasised that Lord Scarman’s proposition was only in respect of medical advice and information, not diagnosis and treatment. Nevertheless, the majority of the House of Lords held that only one test was warranted and the standard of care could not be seen as separate and distinct; the Bolam test soldiered on for three more decades.
 
It was in 2014 when the English Supreme Court accepted the limits of the Bolam and Bolitho Test in Montgomery v Lanarkshire Health Board [2015] UKSC 11 (“Montgomery”), moving from the doctor’s perspective in Bolam to a patient’s perspective. The Supreme Court introduced the material risk test:
 
“The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment ... The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”
 
Montgomery does not displace the Bolam and Bolitho Test but works synergistically with the latter where advice and information are concerned. Adding this test meant the Supreme Court adopted the proposition by Lord Scarman in Sidaway, that medical advice is distinct to diagnosis and treatment. It is this aspect of advice and information in relation to the Bolam and Bolitho Test that Hii Chii Kok considered.
 
THREE ASPECTS OF MEDICAL CARE
 
In Hii Chii Kok, the Court of Appeal identified that medical care has three distinct aspects: (i) diagnosis; (ii) advice; and (iii) treatment. In practical terms, the doctor begins by assessing the patient with a series of questions and tests; the results are collected, integrated and interpreted by the doctor who then informs and advises the patient of his health, treatment options, and associated risks. Finally, if the patient consents to treatment, the doctor proceeds.
 
Diagnosis and Treatment
 
The processes of diagnosis i.e. the collection, integration, and interpretation, of disparate pieces of information, and treatment i.e. surgery, prescriptions or therapy - are dependent on the doctor’s own ability wherein the patient plays no active role. In these aspects, the Court of Appeal acknowledged the realities of medical practice (i.e. the imperfect and evolving medical knowledge and the frequent impossibility of a definitive diagnosis) are unchanged since Bolam and no modification was necessary.
 
Medical advice – patient autonomy
 
In the aspect of medical advice, it was acknowledged that societal attitude emphasises patient autonomy, i.e. the right to self-determination trumped beneficence. Evidencing this, the Court of Appeal referred to the Singapore Medical Council’s Ethical Code and Ethical Guidelines 2016, holding that it was wrong to ignore the “seismic shift in medical ethics … in deciding how the realities of the doctor-patient relationship are to be reflected in the applicable legal standards for doctors”.
 
THE THREE-STAGE TEST
 
The Court of Appeal concluded that the Bolam and Bolitho Test was by itself insufficient to decide if the non-disclosure of information and advice was justified. To assist the Bolam and Bolitho Test where the advice aspect is concerned, the Court of Appeal devised a three-stage test (“Hii Chii Kok Test”) which draws heavily on Montgomery.
 
Stage 1
 
Firstly, the patient must identify the exact nature of the information alleged not to have been given and why it should have been relevant and material. Materiality is considered from the patient’s perspective and reference is made to the quote from Montgomery cited above. Regard is given to what a reasonable patient is likely to attach significance to. To aid this, the Court of Appeal cited the list provided by Dickson v Pinder [2010] ABQB 269 which provides that relevant information included the diagnosis, prognosis, nature and risks of proposed treatment and the alternatives to the proposed treatment.
 
It should be stated that unlike Montgomery which concerns only information pertaining to recommended treatment and alternatives, the Hii Chii Kok Test covers anything relevant and material.
 
What may be significant is dependent on, first, likelihood and second, severity. A risk likely to transpire should be informed even if the injury is slight. Similarly, an uncommon risk should be warned of where the consequent injury is serious. The duty of the doctor excludes proactively eliciting information involving idiosyncratic concerns of the patient unless so informed, or if the doctor has reason to believe so. The standard of care only extends to idiosyncrasies if the patient has shown particular interest and concern that are relevant to otherwise insignificant information.
 
Stage 2
 
The second stage considers whether the doctor was in possession of allegedly relevant material. This brings us back to the Bolam and Bolitho Test – “the question then should be whether he ought to have ordered the test, or apprised himself of the medical knowledge, which would have given him the information – a question best considered under the rubrics of diagnosis or treatment and not advice”. Quite simply, it is negligent if the doctor lacks the information that a responsible body considers relevant.
 
Stage 3
 
The third stage considers why the doctor withheld the information and if there is any reasonable justification for doing so. The Court will assume a physician-centric approach and give weight to “expert evidence of doctors seeking to justify the withholding of such information as a matter of medical practice and judgment will assume some significance”. The defendant doctor will have to provide reasons and supporting expert evidence which is to be tested under the Bolam and Bolitho Test. The Court of Appeal foresaw several instances for justification where:
 
(a)     there is a waiver by the patient;
(b)     treatment provided on an emergency basis; and
(c)     the doctor claims therapeutic privilege.
 
The first two instances require no elaboration. In the third, the doctor may claim justification of therapeutic privilege if he reasonably believes that the act of giving particular information may cause the patient serious physical or mental harm with two such examples being patients with anxiety disorders and geriatric patients.
 
The Court of Appeal has warned against abusing therapeutic privilege, particularly where a doctor considers the choice the patient would make contrary to the patient’s best interest.
 
As a general rule to the Hii Chii Kok Test, the doctor is not required to ensure the patient’s comprehension but only to take reasonable care.
 
COMMENTARY
 
The Court of Appeal has largely adopted the English Court’s approach in Montgomery. Essentially, both Montgomery and Hii Chii Kok acknowledge the limitations of the Bolam and Bolitho Test, and have devised the approach to medical advice and information in a very similar fashion. We are grateful for clarity of the Hii Chii Kok decision which is especially well-ordered, making for ease of application.
 
Nevertheless, despite the lengthy judicial opinion, little of Hii Chii Kok is novel and no significant change in the processes of medical practice is expected.
 
Firstly, from a legal perspective, two out of the three aspects in medical care i.e. diagnosis and treatment, and two of the three stages of the Hii Chii Kok Test acknowledge the utility of, and retain the Bolam and Bolitho Test.
 
Secondly, Hii Chii Kok affirms the principle and value of patient autonomy. But we do not expect to see much change in the daily practice of medicine because the existing practice and the relevant guidelines (such as The Singapore Medical Council’s Ethical Code and Ethical Guidelines (2016 Edition)) already recognise the importance of patient autonomy; if at all, very little is added in the medical practice realm.
 
It may not be that Hii Chii Kok is ground breaking but rather, the judgment is a step in refining the law and standard of care, cementing the principle of self-determination into the law. It is this affirmation of the principle of self-determination, swinging the approach from the doctor’s perspective to the patient-centric approach that makes Hii Chii Kok a pivotal decision.
 
As a side note, Hii Chii Kok comes at a time just before the Malaysian Federal Court renders its own decision on the status of Bolam in medical negligence. It remains to be seen whether Malaysian law will converge with Montgomery and Hii Chii Kok, or diverge onto an altogether different route.