Michael Griffiths, regional director of healthcare at specialist insurance brokers Howden, explains how shock treatment gone wrong established a legal benchmark for Singapore.

In 1957, a patient walked into a London clinic seeking treatment for a mental illness. The doctors recommended electro-convulsive therapy, otherwise known as shock treatment, to which the patient agreed. There was no discussion of the potential risks of the therapy, and neither muscle relaxants nor restraints were used. When the electric charge was applied, the patient thrashed around so violently that he suffered a broken hip and other serious injuries. Despite this, no finding of negligence was made against the clinic or the doctors. The court held that as there was a significant proportion of doctors who did not advocate the use of relaxants or restraints, and that it was normal medical practice at the time for no details of treatment risks to be disclosed, there had been no professional negligence. 

The patient’s name was Mr Bolam, and the Bolam test has long been the standard employed by Singapore’s courts in determining cases of alleged medical negligence. Essentially, a doctor could not be found negligent provided that his actions were supported by the opinions and practices of a substantial body of other reputable doctors. The fact that this test takes no account of the patient’s own perspective is perhaps a reflection of the doctor-patient dynamic prevailing in 1950’s England. 

As any doctor will confirm, however, patient expectations have changed dramatically in recent years and the Bolam test has been subject to criticism for its’ failure to consider the patient.

In 2015, the English Supreme Court handed down a decision in Montgomery vs Lanarkshire Health Board that effectively removed the Bolam test for determining whether informed consent had been obtained. Now, Singapore’s Court of Appeal has followed suit.

In 2010 Hii Chii Kok sought treatment at Singapore’s National Cancer Centre. Scans had revealed pancreatic lesions that were potentially malignant, although this could not be determined conclusively by the scans alone. Hii decided to proceed with surgery and the lesions were successfully removed. Upon examination the lesions proved not to be cancerous, and to make matters worse Hii suffered post-operative complications that required two further operations. He took legal action against the surgeon and the National Cancer Centre, where his lawyers argued that the treating doctor should have advised the patient to follow an alternative treatment option, and that the defence offered by the Bolam test should not be available. 

While the Court of Appeal ultimately rejected Hii’s suit, they did impose a new test that replaces the Bolam test in relation to advice and consent, and that recognises a far more active patient participation in decision-making. Doctors in Singapore must now ensure that patients are provided with all relevant information and materials to enable them to make informed decisions regarding their own treatment, and any decision by a doctor to withhold such information or materials will need to be justified.

So what does all this mean for medical malpractice litigation in Singapore? 

Well, we have not seen a flood of new cases as a result of this ruling. However, the more onerous requirements that Singapore’s doctors must now meet in relation to patient advice will surely give rise to a greater number of claims concerning advice and consent. We have been reporting for some time on the increasing incidence of medical malpractice claims in Singapore, and the removal of the Bolam test will do nothing to reverse this trend.