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In this commentary, dr. Neo han yee discusses a recent landmark decision by the singapore court of appeal, which introduced a new legal standard for determining medical negligence regarding information disclosure. The new modified-montgomery test requires physicians to communicate medical advice based on what a 'reasonable patient' would want to know, rather than what a 'reasonable doctor' would tell them. The implications of this paradigm shift, including concerns about medical litigation, defensive medicine, and healthcare costs.
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September 2017, Vol. 46 No. 9 (^1) Department of Palliative Medicine, Tan Tock Seng Hospital, Singapore Address for Correspondence: Dr Neo Han Yee, Department of Palliative Medicine, Tan Tock Seng Hospital, 11 Jalan Tan Tock Seng, Singapore 308433. Email: han_yee_neo@ttsh.com.sg; neohanyee@gmail.com
Han Yee Neo, 1 MBBS, MRCP (UK)
Abstract In a recent landmark litigation, the Singapore Court of Appeal introduced a new legal standard for determining medical negligence with regards to information disclosure – the Modified-Montgomery test. This new test fundamentally shifts the legal position concerning the standard of care expected of a doctor when he dispenses medical advice. Previously, a doctor is expected to disclose what a “reasonable physician” would tell his patient. Now, a doctor must disclose “all material risks” that a “reasonable patient” would want to know under his unique circumstances. Patient-centred communication is no longer an aspirational ideal but has become a legal mandate. Manpower, administrative, logistic and medical educational reforms should start now, so as to support the average physician transit from the era of the Bolam-Bolitho, to that of the Modified-Montgomery. Ann Acad Med Singapore 2017;46:347- Key words: Informed consent, Information disclosure, Patient-centric communication Introduction A new legal standard has just been passed in the Singapore Court of Appeal, to determine medical negligence with regard to the provision of medical advice. All practising physicians must be aware of this landmark decision arising from a local litigation.^1 The new Modified-Montgomery test compels us to practise at the highest standard of physician-patient communication by fundamentally shifting the legal focus from what a “reasonable doctor” would tell his patient to what a “reasonable patient” would want to know considering his unique circumstances. Under the Modified-Montgomery test, a physician would be found negligent should an omission of any material risk lead to claimable damages, unless he succeeded in justifying his action. Material risk is defined as either: a) a risk to which a reasonable person in the patient's position would be likely to attach significance; or b) a risk that a doctor knows or should reasonably know is perceived to be of significance by this particular patient. Henceforth, the materiality of risks will be ascertained solely from the patient’s perspective. In the discussion that ensued, physicians express grave concern that such a paradigm shift in legal position may open the door to a precipitous rise in medical litigation, encourage defensive medicine, raise insurance premiums and consequently increase healthcare costs as a result of direct cost-transference to the public. The Court was dutifully warned of these potential repercussions, but was unconvinced that the afore-mentioned consequences would materialise. From the “Reasonable Doctor” to the “Reasonable Patient” Prior to this, the prevailing legal standard governing all aspects of a doctor’s professional duty was the Bolam’s test and the Bolitho addendum.2,3^ A physician will not be found negligent “as long as there is a respectable body of medical opinion, logically held, that supports his actions.”^4 As the Bolam-Bolitho test relies almost entirely upon a peer- review of what a “reasonable doctor” would do, it has been described as the “physician-centric” approach to the legal determination of medical negligence. In recent years, this approach repeatedly came under international legal scrutiny.
Annals Academy of Medicine In the United Kingdom (UK), judges expressed significant concern that this would sanction differences in clinical practice which are attributable “not to the divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients.”^5 The new ruling by Singapore’s Court of Appeal retains the physician-centric approach in the domain of diagnosis and treatment, but mandates a patient-centric approach with regard to dispensing medical advice. It recognises that a patient’s decision to consent to interventions might not solely depend on medical risks and benefits, but also his unique circumstances, values and therapeutic goals. Physicians must dispense medical advice according to what a reasonable patient should know, as well as what a particular patient would want to know, in order that they can arrive at an informed choice. Similar legal standards that steered away from the Bolam- Bolitho principle have already been established in Canada, Australia, Malaysia and more recently in the UK.5-8^ Locally, the paradigm of the doctor-patient relationship has also evolved—a new generation of better-educated patients no longer accepts being passive recipients of information and demands to be engaged as active participants in decision-making. Increasingly, patients attempt to narrow the knowledge gap between physicians and themselves, by accessing easily available online resources to counter- balance the unequal dynamics inherent to the traditional therapeutic relationship. Reflecting this seismic change in societal attitudes, the 2016 edition of the Singapore Medical Council Ethics Code and Ethical Guidelines (ECEG) strongly supports a patient-centric approach to information disclosure. Doctors must ensure that their patients understand “the purpose of tests, treatments or procedures to be performed on them, as well as the benefits, significant limitations, material risks (including those that would be important to patients in their particular circumstances) and possible complications as well as alternatives available to them.”^9 Referencing this aspirational ideal encapsulated in the ECEG, the law now takes the issue further by mandating that patient-centric information disclosure becomes the expected standard of care, below which physicians can be held liable for medical negligence. The Modified-Montgomery Test In its 114-page ruling, the Court of Appeal seeks to balance the conflicting perspectives of the patient-centric and physician-centric approaches by orchestrating a “carefully calibrated shift in the standard of care” – the Modified- Montgomery test.^1 It consists of 3 stages:
Annals Academy of Medicine REFERENCES