Advance decision-making in Singapore
Advance directives are instruments that offer safeguards for the treatment and care preferences of patients, by providing guidance to decision-makers should a patient lose decision-making capacity. In Singapore, they may take the form of a legally recognised document, provided under the Advance Medical Directive Act (AMDA) which was enacted by Parliament in 1996, and arguably also less formal instruments such as advance care plans that document the patient’s healthcare and other related preferences.
Advance Medical Directive (AMD)
The Advance Medical Directive Act in Singapore offers the patient and healthcare provider a higher degree of certainty in healthcare and treatment decision-making, with a central registry to certify the existence of an AMD for a particular terminally-ill patient. The patient signing an advance medical directive under the Act has decided to forgo extraordinary life-sustaining treatment. The AMD Act’s Interpretation states that extraordinary life-sustaining treatment ‘means any medical procedure or measure which, when administered to a terminally-ill patient, will only prolong the process of dying when death is imminent, but excludes palliative care’. The directive is only carried out and such treatment withdrawn or withheld if the attending physician and two other doctors (at least two out of the three must be recognised specialists) have certified the patient is terminally ill and the patient is (1) unconscious or lacking capacity to make the decision on extraordinary life-sustaining treatment, and (2) at imminent death. Where these criteria are satisfied, a qualified doctor is under a duty to act in accordance with a valid AMD and has a defence against criminal and civil liability if he has acted in good faith and with reasonable care.
Advance care plans
We shall use the acronym ‘ACP’ to refer to the process of advance care planning, bearing in mind that a variety of types of documents (see table below) produced from this process may potentially have different names in different settings or institutions which come under the general rubric of ‘advance care plans’. Such documents will be referred to her as ‘ACP documents’. ACP is an ongoing communication process of the patient’s preferences and values in the light of their healthcare condition, specific care, and treatment needs. Care planning facilitators conduct these discussions and help to document these conversations. These discussions provide the foundation for the completion of the ACP document, which records the patient’s specific treatment and care preferences. The process is designed to give patients a voice when they no longer have the capacity to make their own healthcare decisions, and to involve their loved ones and healthcare providers in exploring their healthcare preferences. At the very least, it supports medical decision-making in the ‘best interests’ of the patient by allowing the patient (in discussions that normally include the family) to reflect and articulate treatment goals and preferences.
In the process of determining the patient’s overall best interests, healthcare providers should normally respect and give weight to the patient’s wishes expressed in an ACP document. The legal process sanctioned by the Mental Capacity Act (MCA) is explained in the backgrounder, ‘The Mental Capacity Act (Singapore) on Medical Decision-making for Adults Lacking the Capacity to Consent’. For life-sustaining treatment or treatment to prevent a serious deterioration in the patient’s health, responsibility for the decision ultimately rests on the healthcare provider, unless the patient has made an AMD. The doctor is required to carry out an AMD, which takes precedence over any ACP document, unless the patient has revoked their AMD (which can be done verbally or in writing). Arguably, a more specific advance decision (which could be documented in an advance care plan, a letter, or some other medium) that is applicable to the situation could require the doctor to adhere to that decision. However, the validity of such common law advance decisions has not been tested in our courts. An ACP document is not limited to forgoing extraordinary life-sustaining treatment, and the patient may express a range of treatment and care preferences, as well as refuse specific treatments. The patient can change his or her ACP documents at any time, verbally or in writing.
The validity of an ACP document depends on how clearly and specifically it is drafted, and whether it applies in the circumstances. Additional factors to consider include:
- When it was made (an ACP document made long ago may be unreliable because the patient may have changed his or her mind since then);
- Whether there has been a material change in circumstances (e.g. the patient changed religion since making the directive); and
- Whether it is written, video-recorded, or verbal (generally a written directive, or one that is video-recorded is likely to carry more weight than a verbal directive or wish).
An ACP document that is clear, specific, and applicable in the circumstances may arguably be a valid common law advance directive, although this has not been tested in the Singapore courts. If it is not a valid common law advance directive, it nonetheless is the patient’s past wishes, and therefore a relevant factor, which the decision-maker needs to consider when making a decision in the patient’s best interests under the MCA.
Many healthcare institutions in Singapore have policies in place regarding how an ACP document is recorded and implemented in their own institution. Over time, all healthcare institutions will have such policies, but this will take some time because different institutions have different policies and timelines for training and implementation. Generally speaking, there are three types of ACP documentation.
|General||A General ACP document is one made by an individual who is generally healthy. The preferences individuals express when making a general ACP document usually focus on a situation where they suffer an unexpected serious neurological condition that deprives them of the ability to make their own healthcare decisions. Examples include severe brain injury that causes a permanent vegetative state or a minimally conscious state. Some makers of an ACP document may refuse artificial nutrition and hydration, or antibiotics to cure infection, preferring to pass away rather than continuing to live in what they perceive to be a low quality life. Others may request that artificial nutrition and hydration be maintained, and antibiotics given when appropriate because they believe that such a life has value and quality.|
|Disease-specific||A Disease-specific ACP document is tailored to the patient’s particular disease, and is meant for those with a progressive condition that is life limiting. A disease normally has a trajectory that has been scientifically documented. Therefore, the discussion of healthcare preferences and values takes place in the context of the relevant trajectory. This helps all parties discuss anticipated issues in the patient’s healthcare. It also ensures that the ACP document is relevant and is therefore more likely to apply to the specific circumstances. For example, patients with dementia would normally have difficulty swallowing in the later stages of the disease. A discussion should be held that explores the patient’s preferences on tube feeding before that stage has been reached.|
|Preferred Plan of Care (PPC)||A PPC is designed for individuals who are likely to pass away within the 12 months. The ACP facilitation will explore the patient’s healthcare preferences and values in the context of the advanced illness. To an extent, there is an overlap between the disease-specific ACP document and the PPC because many patients who make a disease-specific ACP document might also stipulate preferences in the PPC. Issues that will normally be discussed include preferences for life-sustaining treatment such as ventilation, CPR, and other treatments. The discussion would also probably explore the patient’s preferences for place of care, for example, home, hospice, or hospital.|
For all types of ACP documentation, the individual or patient is encouraged to nominate one or more proxy decision-makers to be consulted in determining the patient’s best interest, or even in some situations to make healthcare decisions on his or her behalf, if the individual or patient loses capacity to make such decisions in the future. Such a proxy decision-maker may be formally appointed as a donee of the individual or patient under a LPA (but the donee’s role is significantly limited in relation to healthcare decisions, as described in the MCA of Singapore).
If no plans or preferences have been expressed or documented
This situation sometimes causes the greatest difficulties for healthcare providers and the patient’s relatives because no one knows with certainty what the patient’s plans or preferences are. The doctors will likely have a discussion with the patient’s family to ascertain the patient’s best interests but there may be disagreements between the relatives on what the patient’s preferences would likely have been. Medical decision-making when the patient’s own preferences are unknown and cannot be clearly ascertained is described in the backgrounder, ‘The Mental Capacity Act (Singapore) on Medical Decision-making for Adults Lacking the Capacity to Consent’.
Johnston, C.,’Does the statutory regulation of advance decision-making provide adequate respect for patient autonomy?’ Liverpool Law Review, 2005;262,189-203.
Menon, Sumytra, 'Advance decision-making in Singapore', in Chin, Jacqueline, Nancy Berlinger, Michael C. Dunn, Michael K. Gusmano (eds.), A Singapore Bioethics Casebook, 2 vols (Singapore: National University of Singapore, 2017), http://www.bioethicscasebook.sg.