INTRODUCTION
In 2018, orthopaedic specialist Dr Lim Lian Arn was fined $100,000 by the Disciplinary
Tribunal (DT) of the Singapore Medical Council (SMC) for failing to obtain informed
consent before administering hydrocortisone and lignocaine (H&L) injection to a patient’s
wrist.[1] This led to a written protest from the medical profession, many of whom
thought the penalty of a SGD100,000 fine for failing to advise a patient of the risks
related to a fairly simple procedure was unreasonably high. The medical profession
was of the opinion that this precedence could lead to defensive medicine practices
and rising costs for patients (Report on Recommendations at [20]).[2]
The verdict of the SMC DT on the case also raised confusion and anxiety regarding
the professional standard for consent taking. The Bolam–Bolitho test was replaced
in 2017 (Hii Chii Kok v Ooi Peng Jin London Lucien [2017] SGCA 38) (‘Hii Chii Kok’).[3]
The judges for the 2017 case were of the view that the duty to advise under Bolam–Bolitho
‘does not allow any room for the patient’s perspective’ and there needs a good balance
between ‘patient autonomy and the principle of medical beneficence’ (Hii Chii Kok
at [120]).
Following the medical profession’s outcry, a Singapore Ministry of Health (MOH) review
committee was set up to review consent taking and SMC’s disciplinary process. During
the hearings of the review committee, it was revealed that doctors thought that all
of the risks associated with the treatment provided have to be disclosed to meet the
new standard. The profession was concerned that the lack of time and language barriers
will impede doctors from fulfilling the professional standard (Report on Recommendations
at [40]). The SMC was requested by MOH to apply to the court to have its decision
reviewed. In the review, the Court of Three Judges set aside Dr Lim’s conviction and
the orders made (Singapore Medical Council v Lim Lian Arn 29 [2019] SGHC 172) (‘Lim
Lian Arn’).[4]
This article aims to highlight the salient points from this judgement on informed
consent and what this means to clinicians in practice.
LESSONS LEARNT
Not every risk has to be disclosed
On the practice of taking informed consent, the court reiterated that ‘a doctor is
not under a duty to convey to his patient every conceivable risk’ (Lim Lian Arn at
[48]).
In clinical practice, this means that doctors should not take a defensive stance and
overwhelm patients with a deluge of information on unlikely risks (Lim Lian Arn at
[53]). Bombarding the patient with excessive and irrelevant information would leave
the patient more confused and less enabled to participate in effective shared medical
decision-making. ‘Information dumping’ disadvantages the patient in exercising autonomy,
and the ‘doctor would then have fallen short of his ethical obligation and may well
be exposed to legal liability’ (Lim Lian Arn at [54]).
Extent of information to be disclosed in regards to material risks
In the duty to advise, several factors that need to be taken into consideration when
sharing informationac were pointed out in Lim Lian Arn. This includes whether the
information was ‘relevant and material to the patient’, whether the information was
reasonably in the possession of the doctor and whether the doctor was justified in
withholding the information (Lim Lian Arn at [48]).
In clinical practice, this means that the doctor has to engage the patient in an open
discussion on the diagnosis of the patient’s condition, prognosis of that condition
with and without medical treatment, nature of the proposed treatment, benefits and
risks associated with the proposed treatment, alternatives to the proposed treatment
and their benefits/risks, and questions the patients might have and the explanations
provided. As for the risk, the common and serious risk, and what could be material
(Hii Chii Kok at [140]) to the patient in undergoing the proposed treatment should
be shared. During the discussion, the doctor would come to know the risks material
to the patient and the factors that the patient would attach significance to in order
to make a decision; these will be important when discussing the relevant options and
risks.
Disclose information in the context of choices and alternatives
The court pointed out in Lim Lian Arn that ‘the information in question pertained
to how the patient should make her choice between the two treatment options that she
was presented with’ (Lim Lian Arn at [50]). It was also noted in Lim Lian Arn at [56]
that the H&L injection was not actively recommended by Dr Lim, and that two treatment
options were presented to the patient.
For clinical practice, patients should be given information on choices and alternatives.
When a patient consults a medical practitioner with a medical condition that could
be managed by two or three relatively uncomplicated and equally beneficial treatment
options, the information to be disclosed should be that which the patient would need
in order to be able to make a decision from among these choices. This would include
a disclosure of the severity and likelihood of any adverse side effects or complications
(Lim Lian Arn at [50]). In essence, information to be disclosed to patients should
be sufficient information that enables the patient to participate actively in making
an informed choice. Doctors should not focus only on the medically recommended treatment
and should instead make an effort to appreciate the patient’s need for information
on alternatives and choices.
Role of expert witness report in duty to advise
The expert witness report is key in determining the expected standard for disclosure
expected of the doctor and whether any departure from those standards was sufficiently
egregious to result in professional misconduct (Lim Lian Arn at [42]).
In this judgement, the court noted that the expert report was inadequate and of no
value to the court as it merely presented conclusions without demonstrating how they
were being reached (Lim Lian Arn at [43]). Particularly, it did not explain why Dr
Lim was under a positive duty to convey to the patient the risks and possible complications
stated in the expert report. Expert evidence on the seriousness and likelihood of
any adverse side effects or complications (in this case of the H&L injection) was
also absent (Lim Lian Arn at [45]). Without such expert evidence, there was no evidentiary
basis to determine the standard expected of the doctor in disclosing information to
the patient and on how serious the failure to disclose information was (Lim Lian Arn
at [50]).
In practice, a good medical expert report should not just declare the standard expected,
but also the reasons why the articulated standards are the most preferred standard
in the circumstances of the particular case. The report should demonstrate logically
how the conclusion was reached. This is to allow the court to consider the soundness
of the expert’s reasoning and assess the value of the expert’s viewpoint appropriately
(Lim Lian Arn at [43]). In a complaint on the duty to advise, to determine the departure
from the standard of disclosure in consent taking, the evidence must show whether
the patient ‘would have taken a different course of action’ when presented with the
relevant information on the ‘risks and possible complications’ (Lim Lian Arn at [14a]).
Essentially, the expert report must stand the scrutiny of logic and evidence, remain
relevant to the facts of the case and be based on up-to-date medical practice. Doctors
who agree to be medical experts need appropriate training and experience in writing
medical expert reports that can objectively serve the courts best.
Documentation of the consent process
The court has clarified that ‘the existence of supporting clinic notes, while desirable,
is not determinative’ in determining whether the doctor has met the legal standard.
However, in cases where the procedure is ‘a routine one’, this could be a reason ‘why
a detailed note of any discussion with the patient of the risks and possible complications
was not kept’ (Lim Lian Arn at [58]).
In clinical practice, documenting the consent process, particularly in giving patients
the opportunity to ask questions and make choices, is important to defend the duty
to advise when called to account for one’s actions (Lim Lian Arn at [59]).
Factors considered by the tribunal hearings
Regarding complaints on consent taking, the important question is whether the patient’s
autonomy to make an informed decision on his/her own treatment is substantially undermined.
Not every departure or deficiency by a medical practitioner in taking consent from
the acceptable standards of practice would necessarily amount to professional misconduct
(Lim Lian Arn at [30]). It must be shown that the departure must either be ‘intentional
and deliberate’ or amount to such serious negligence that it objectively ‘portrays
an abuse of the privileges’ that accompany registration as a medical practitioner
(Lim Lian Arn at [28]).
In addition, the court took into consideration that, when it is involving a one-off
failing committed in the course of a routine procedure with no material harm to the
patient, the threshold of the egregious nature of the departure was not reached (Lim
Lian Arn at [14a, d]).
CONCLUSION
In conclusion, Lim Lian Arn highlights pertinent lessons on duty to advise and consent
taking for practising doctors, particularly the judges’ perspective on the issues
and legal standards relevant to the case: giving patients sufficient information on
choices and alternatives to empower them to take part in the treatment process and
respect for autonomy. The value of a good expert witness report and documentation
in consent taking were also emphasised.
Financial support and sponsorship
Nil.
Conflicts of interest
There are no conflicts of interest.