Why The Medical Professional Should Be Aware of Their Duty to Procure Patient Consent

Background

Singapore’s healthcare system is recognised for its quality as seen in the number of people around the world that flock to Singapore for health treatments. However, (as reported in The Straits Times on 22 January 2019), there had been a serious case of medical malpractice involving a local doctor and the failure to obtain consent.  Dr. Lim Lian Arn had been an orthopedic surgeon at Gleneagles Hospital in Singapore for 29 years and has not had a record of misconduct until now.

 

The victim of his misconduct, one of his patients from 2014, had engaged his services to do an H&L injection. H&L Injections, also known as cortisone injections, are usually prescribed to patients with osteoarthritis or rheumatoid arthritis, primarily as anti-inflammatory agents. In spite of this, they have potential side effects which may cause a patient to experience pain and swelling in the injected area. Dr. Lim’s patient had no knowledge of these side effects as he had not warned her prior to administering treatment. Following Section 53 of the Medical Registration Act (Cap 174, 2004 Rev Ed), licensed doctors are required to inform patients about the potential outcomes or any side effects stemming from any surgery or treatment. Doing so would ensure that patients have the prerequisite knowledge about the treatment they are about to undergo before they may choose to give consent. Such informed consent is thus required before a doctor may proceed, despite the treatment itself being the appropriate and reasonable solution to the patient’s ailment.

 

Doctors are obliged to perform their duty to acquire informed consent from their patients before they decide to proceed with the surgery. A notable example is the case of Ang Peng Tiam v Singapore Medical Council and another matter [2017]5 SLR 356; [2017] SGHC 143. In this case, Dr. Ang was charged with misconduct under Section 53(1) (d) of the Medical Registration Act (Cap 174, 2004 Rev Ed).  The appellant doctor had misrepresented to his patient that there was a likelihood of 70% that her lungs would respond favourably to the treatment, when that statement was merely arbitrary and not one of fact. His patient later died, and her daughters lodged a complaint against him. Dr. Ang was then suspended from practice for eight months, with the Court justifying this seemingly light punishment with the fact that the Singapore Medical Council (SMC) had taken 4.5 years to serve a notice of inquiry on him.

 

To what extent should medical professionals be expected to inform their patients of the risks that accompany the proposed treatment?

The aforementioned cases have strongly advocated for doctors to ensure they share every bit of relevant medical information to their patients. Which begs the question, is such a practice reasonable? Is it even feasible for doctors to adhere to this standard of care?

 

Since the hefty fine of $100,000 was imposed on Dr. Lim, the medical community had responded by saying that it would be impractical for doctors to constantly explain every single treatment and procedure to their patients. This overload of information onto patients may not necessarily have the positive outcome which the Singapore Medical Council is hoping for. Important bits of information may be inadvertently overlooked due to the mass of information which the patient would be forced to process.

 

Nevertheless, the courts have demonstrated a shift towards a more patient-centric approach. This is exemplified in the case of Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38. In this case, it had been brought to the patient’s attention that he had lesions that were potentially cancerous and treatment was recommended to him. Subsequently, after undergoing treatment, it was also discovered that the lesions were not cancerous to begin with. Moreover, the patient suffered from post-treatment complications. Thereafter, the patient brought a claim against the doctor for medical negligence. The court decided that a more patient-centric test would be applied in relation to giving patients advice, known as the Montgomery test, to prevent patient autonomy from being undermined. The court dismissed the concerns that prioritising patient autonomy would lead to “defensive medicine” and increase the cost of healthcare.

 

The Montgomery test involves a three-pronged approach. Firstly, from the perspective of a reasonable patient, was the information material? Secondly, was the doctor aware of the information at the material time and if not, was he negligent in failing to have the information? Lastly, if the information was material and the doctor had knowledge of it, was the doctor reasonably justified in withholding the information from the patient?

 

As a result, the court ruled in favour of the doctor as he had indeed provided the patient with material information pertaining to his medical condition and treatment, and the information which was withheld was not information which a reasonable patient would have deemed as material. Hence, the patient’s appeal was dismissed.

 

In Dr. Lim’s case, it may be argued that if the patient had known about the possible side effects of pain and swelling, a reasonable patient may have opted out of receiving the injection.

 

Conclusion

To conclude, what constitutes as ‘medical negligence’ is evolving; it used to be the case where doctors knew best, but it seems that there is a shift towards patients having more autonomy and ensuring that patients are able to make informed decisions when it comes to their own welfare. The fine of $100,000 imposed on Dr. Lim may have been shocking to the medical community. However, this may have been the intended effect; to serve as a warning shot that doctors ought to put in more effort in respecting their patients’ autonomy.

P.S. Samuel Seow Law Corporation hopes that with this series, “The Art of Law”, we may serve our community by shedding light on pertinent issues which touch our day-to-day lives and enable our readers to have a better perspective on their legal rights and obligations.

 

Samuel Seow Law Corporation ignited a revolution in 2005 with the provision of legal services to the media and entertainment industries where there was little representation.

 

Today, SSLC is committed to becoming an integral and vital part of our clients‘ businesses by bringing the best legal services experience to entrepreneurs, artists, creative professionals, corporations and consumers around the world through its innovative and unique style of legal practice, based on the principles of passion, creativity and love.

 

For more information in relation to medical law, please write to our Mr. Samuel Seow (at samuelseow@sslawcorp.com) or Ms. Jolene Lim (at jolenelim@sslawcorp.com).

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