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In this episode we examine communication and consent in doctor-patient relationships. For example, how much information should doctors share with patients? And how much importance should be placed on the patient’s own opinion of what constitutes adequate information to be disclosed by doctors?
It’s the job of lawmakers or courts to set standards for medical practise so that doctors can know what’s expected of them and patients have the right to pursue medical professionals through the courts if a treatment goes wrong and they believe they were not told the dangers.
Professor Gary Chan Kok Yew from Yong Pung How School of Law, Singapore Management University, has reviewed how Singapore’s legal system deals with the setting of standards for ‘medical advice’, with a special interest in how this can protect the rights of patients with mental health problems who can be especially vulnerable to problems and challenges relating to doctor-patient communications.
This makes it especially important that the law offers a robust route for patients with mental health issues to be able to pursue a negligence claim through the courts, and to encourage the medical profession to be particularly mindful of the patients’ rights to be informed and to be heard.
Negligence cases in Singapore have traditionally been based on case-law from the UK - primarily, the 1957 ‘Bolam test’ from a negligence case involving a mentally ill patient who was not told about the potential risks of ECT therapy. The case ruling found that a medical professional is not negligent if their actions are in line with practices that are seen as ‘reasonable’ by a ‘respectable body of medical opinion’. This established a common law precedent that ‘doctors know best’ – that as long as a doctor’s actions are acceptable to their peers, then the doctor should not as a general principle be regarded as negligent – enshrining the principle of ‘medical paternalism’ into law.
In the late nineties, Singapore courts applied a ruling from the UK’s ‘Bolitho’ case that the court must also look at the medical professional opinion to make sure that it ‘withstands logical scrutiny’. This added an element of judicial oversight over the professional medical opinion that diluted the ‘doctors know best’ attitude, helping to promote patients’ interests in receiving adequate medical advice.
Then, in 2017, the Singapore Court of Appeal shifted decisively away from supporting ‘medical paternalism’ in a landmark ruling in the negligence case of Hii Chii Kok.
Breaking with precedent, the Court of Appeal decided not to follow the Bolam and Bolitho tests to ascertain whether the medical advice was adequate.
Instead, the Court took into account the patient’s perspective in determining whether the patient had been given sufficient information by the doctor to make an informed decision about his treatment.
This puts the onus on doctors to engage in a dialogue with patients, taking onboard individual patients’ needs and helping them to understand the consequences of various courses of action, allowing patients to play a central role in their own healthcare. The Hii Chii Kok ruling meant the courts would expect to hear evidence of a patient giving ‘informed consent’ to treatment based on what the patient wants to know, rather than what – if anything - the doctor sees fit to reveal.
This new test for clinical negligence did not go down well with Singapore’s medical professionals who were uncertain as how to act and were worried about how this shift to the ‘patient-centred’ approach might increase medical costs due to the risk of increased negligence claims against doctors needing to be priced into their services.
This controversial common law pivot to a patient-focused approach caused enough consternation to make Singapore lawmakers draft statutory measures passed in 2020 to set a new standard for what information health care professionals should provide as ‘medical advice’.
A new Section 37 was added to the ‘Civil Law Act’ that largely overrides conflicting common law precedents and aims to balance respect for professional opinion with a need for judicial oversight and the rights of patients to be given information to allow them to give informed consent.
Section 37 starts by enshrining the old Bolam test into law – making the check of professional medical opinion compulsory in negligence cases. But the new law also requires doctors to provide patients with information “that the professional knows or ought reasonably to know” is important to the patient to enable them to reach an ‘informed decision’.
But the balance does weigh more heavily in favour of medical opinion – mainly because the new law now says that it’s the ‘medical peer group’ that decides whether a doctor had provided ‘reasonable’ information to allow the patient to give informed consent, rather than the common law precedent in Hii Chii Kok that gave this role to the court.
The court can now only overrule the professional peer group’s view if it thinks the medical assessment of what is ‘reasonable’ is ‘illogical’. This is the common law ‘Bolitho test’ getting enshrined in statute.
Patients with mental disorders can be especially vulnerable to negligent medical advice because they may not be able to communicate their concerns – a right that’s protected in Section 37.
In Singapore common law, a patient needs to be ‘mentally competent’ for their consent or refusal to treatment to be valid. There’s statute law covering this in another piece of legislation, the 2008 Mental Capacity Act.
This legislation promotes the idea of patient empowerment as it assumes that everyone is mentally capable unless proven otherwise - and healthcare professionals must take practical steps to help patients come to their own decisions.
The Singapore Mental Capacity Act makes a distinction between two types of incapacity:
- ‘clinical incapacity’, which is an impairment or disturbance of the brain – a cognitive or psychiatric mental disorder - something that needs assessing by medical experts…
- and ‘functional incapacity’, which is the inability to understand, retain or weigh information - - which is for court judges to decide on.
The Mental Capacity Act states that anyone claiming that a patient is mentally incapable of making an informed decision has to prove both clinical and functional incapacity and the nexus between them. Assuming there are no proxy decision-makers acting on behalf of the patient,the health professionals may then act autonomously in what they deem to be in the patient’s ‘best interests’.
But when it comes to the patient’s rights to receive information as required under Section 37, for patients with a clinical disorder, but who are still able to understand, retain and weigh information, they should be given information that is important to them for making informed decisions about their health.
This argument protects the rights of people with mental disorders when they are under a doctor’s care provided they are mentally capable of making decisions about their health. It uses an interplay between provisions in the Mental Capacity Act and the added Section 37 to the Civil Law Act to ensure that such patients with mental health problems nonetheless receive sufficient information from healthcare professionals in order to make informed decisions.
So, the key question now is “what information should the doctor provide to the patient when giving medical advice? It may be tricky at times to judge as views on what the patient might want to know about their health conditions or treatment can vary an awful lot. Some patients may have rather unusual ideas of what they may want to know about, and others might feel that it’s not important to find out about certain health conditions.
The new law says that the information to be given by doctors is information which the patient would reasonably require to make an informed decision, and which the doctor knows or ought reasonably to know is material to the patient for making an informed decision . You can see that one key word in the new law is “reasonably”. The lawmakers cannot anticipate every possible circumstance and context in doctor-patient communications but we should assess each situation through the lens of reasonableness. And the ultimate purpose is about patients making informed decisions. Moreover, the law does take account of special or unique concerns that may be communicated by patients to their doctors.
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