by Professor Kumaralingam Amirthalingam
Faculty of Law and Centre for Biomedical Ethics, Yong Loo Lin School of Medicine
While the Chief Justice in Hii Chii Kok emphatically stressed the importance of striking a balance between autonomy and beneficience, doctors in clinical practice remain fearful, wondering what risks will be deemed material and how far they can go to persuade
a patient to accept beneficial treatment without violating patient autonomy.
Doctors provide patients with information and advice in order to provide the best care for the patient (the principle of beneficence) and to enable the patient to make an informed decision (the principle of autonomy)1. These two objectives should exist in harmony but more often than not, they end up at odds with each other. When things go wrong, doctors face complaints or lawsuits. It is then up to the courts to decide which information should have been provided or withheld. Should the information be based on what the doctor believes is material to the patient’s health; what the patient believes is material to the patient’s interests; or what the court determines on hindsight is material to the patient’s autonomy? This decision involves a complex balancing of professional, ethical and legal considerations. In an ideal world where the doctor-patient relationship is based on trust and mutual respect, these considerations should converge and result in the right decision.
However, the real world is far from ideal. A series of recent decisions on the scope of the duty to inform has left doctors bewildered because what the law apparently requires does not seem to align with the medical understanding of professional and ethical obligations. Reflecting on the polarized world we live in, patient autonomy and medical beneficence are set against each other instead of reinforcing each other. This has a corrosive effect on the doctor- patient relationship as well as on the morale of doctors. Importantly for clinical practice, doctors are unsure what information they should disclose and what advice they can give to guide patients without infringing patient autonomy and falling foul of the law. This article argues that much of the current concerns stem from a misunderstanding of what the law is. In doing so, the article aims to explain the law, to clarify some misconceptions and to point to a recent English legal decision that should provide some reassurance for doctors.
The starting point is the seminal decision of Bolam v Friern Hospital Management Committee2 in which it was held that a doctor may not be found liable if his or her practice is accepted as proper by a respected body of medical opinion, even if there is another group of medical experts who disapprove of the practice. In short, the standard of care is determined by peer practice. Applied sensibly, this provides a pragmatic and fair approach to medical judgments pertaining to diagnosis, treatment and care where professional differences legitimately exist. However, the application of Bolam to the doctor’s duty to inform was problematic as it resulted in doctors controlling information that was essential to enable patients to make informed decisions. Bolam had the effect of undermining patient autonomy, and not surprisingly, it has been rejected across the major common law jurisdictions. Singapore and the United Kingdom are latecomers to this trend. The law governing the duty to inform, set out in the United Kingdom Supreme Court in Montgomery v Lanarkshire Health Board3 (“Montgomery”), was adopted by the Singapore Court of Appeal in Hii Chii Kok v Ooi Peng Jin London Lucien4 (“Hii Chii Kok”).
Under the Montgomery/Hii Chii Kok test, a doctor is under a duty to inform a patient of material risks. A risk is material if a reasonable patient would attach significance to it or if the doctor knows or ought reasonably to know that the patient would attach significance to it. Some doctors have misunderstood the second part of the test to mean that the doctor must disclose any information that the patient desires. Not so. If the doctor has no reason to know that the patient would attach significance to a particular risk, there is no negligence. A controversial decision of the Singapore Medical Council (SMC) Disciplinary Tribunal, wrongly finding a doctor guilty of professional misconduct for failing to inform his patient of a trivial risk sent the medical profession into a panic. The received message: Inform or be damned. The fact that the High Court reversed the decision and acquitted the doctor has been ignored5.
There is a gulf between doctors and lawyers/ethicists on the meaning of patient autonomy and its place in the doctor-patient relationship. For lawyers and ethicists, autonomy is first amongst equals; for doctors, beneficence is their beacon. Autonomy is a complex concept with ethical, philosophical, legal, social and political layers. These complexities cannot be explored in this forum, but suffice to say that much of the tension between autonomy and beneficence is due to a narrow, liberal conception of autonomy born out of civil rights that does not fit comfortably in the medical context6. While the Chief Justice in Hii Chii Kok emphatically stressed the importance of striking a balance between autonomy and beneficence, doctors in clinical practice remain fearful, wondering what risks will be deemed material and how far they can go to persuade a patient to accept beneficial treatment without violating patient autonomy.
A recent English legal decision provides some helpful guidance. The plaintiff in Pepper v Royal Free London NHS Foundation Trust7 (“Pepper”), who was 56 years old at the time of the incident, underwent a pancreaticoduodenectomy [Whipple surgery] at the hands of the defendant surgeon. The plaintiff had presented at the emergency department with abdominal pain. A series of tests including repeated computed tomography, magnetic resonance imaging and endoscopic ultrasound were carried out. The tests were inconclusive, suggesting possible malignancy or an inflammatory lesion. The plaintiff consented to investigative surgery and Whipple surgery if there was evidence of malignancy. An intraoperative biopsy was negative for a tumour but the defendant, feeling that the pancreas was hard, made a clinical judgment to proceed with the Whipple surgery. The histopathology results post- surgery showed no malignancy; the plaintiff had acute pancreatitis and cholecystitis. She brought an action in negligence, alleging that she had undergone unnecessary surgery that had resulted in adverse consequences.
The key issues were whether the defendant surgeon had been negligent in advising the patient to undergo surgery and whether she had given her consent. The judge began his judgment with this salutary reminder of the doctor’s role in the doctor- patient relationship:
… a doctor’s role is to ensure that patient understands the serious consequences of her condition, her treatment options and the risks of undergoing or not undergoing such treatment and that it is a patient’s right to make an informed decision as to whether to undergo the treatment which is offered to her. I bear in mind the inequality in the position of doctor and patient, given that the former will be highly experienced and the latter may well have little or imperfect knowledge and that it may not be easy for a patient to question a doctor about what he proposes.8
On the first issue of negligent advice to have the surgery, the judge noted that the defendant had been quite forceful in warning the plaintiff about the risk of the cancer becoming inoperable if quick action were not taken. Nonetheless, the judge held that the defendant was not negligent in using “stark language” to impress upon the patient the gravity of the situation. Indeed, the judge went on to say that the doctor may well be negligent in failing to be forceful in cases where the patient does not “fully appreciate the gravity of her situation.”9 On the facts, it was found that the defendant had carefully drawn the line between his duty to give appropriate information as a professional and the plaintiff’s right to make an informed decision. There had been no undue influence.
On the second issue of consent, the patient alleged that she had given consent to the surgery only if the biopsy was reported as positive. The defendant argued that the plaintiff had given consent to the surgery even if the biopsy were negative if the defendant nonetheless formed a professional opinion based on his assessment of the pancreas that it could be malignant. The judge accepted this argument and went on to determine whether the defendant had been negligent in assessing the pancreas to be malignant when in fact it was not. Here, the judge weighed the evidence of the experts and found that as there were experts who would have made the same assessment, the defendant could not be found negligent on the Bolam/Bolitho test.
Pepper is a significant decision that should reassure doctors that they can and should act in the best interests of their patients while providing them with the necessary information and guidance, and that they can do this without the fear of being held liable. Indeed, a close reading of Hii Chii Kok and Lim Lian Arn would provide similar reassurance. The law on the duty to inform set out in Montgomery and Hii Chii Kok strikes a balance between beneficence and autonomy. Unfortunately, it has occasionally been misunderstood or misapplied, leading to a trust deficit. Doctors understand that trust is central to the doctor-patient relationship—perhaps some of that trust should also be placed in the law.
REFERENCES
1 The four modern pillars of medical ethics are autonomy, beneficence, non- malfeasance and justice. TL Beauchamp & JF Childress, Principles of Biomedical Ethics (New York: Oxford University Press, 7th ed, 2013).
2 [1957] 1 WLR 582.
3 [2015] AC 1430.
4 [2017] 2 SLR 492.
5 Singapore Medical Council v Lim Lian Arn [2019] SGHC 172.
6 [See, ED Pellegrino & DC Thomasma, “The Conflict between Autonomy and Beneficence in Medical Ethics: Proposal for a Resolution” (1987) 3 Journal of Contemporary Health Law & Policy 23.
7 [2020] EWHC 310 (QB).
8 Id at [143].
9 Id at [146].