An overview of key aspects of Singapore medical law
Calvin W. L. Ho and Peter Loke
What is the supreme law of Singapore?
The Constitution is the supreme law of the land, so that any law that is inconsistent with any of its provisions shall be void. It also vests judicial power in the Supreme Court, which consists of the High Court and the Court of Appeal. The institution of law (principally, the judiciary) is one of the key organs of state under the Constitution, together with the legislature (i.e. Parliament) and the executive.
What is the common law?
The common law is judge-made law, where the law is based on legal principles laid down from past cases (precedence). Judges play a key role in defining and making the law. There are a number of statutes relating to the medical profession and the practice of medicine in Singapore. Examples include, but are not limited to, the Medical Registration Act, the Private Hospital and Medical Clinic Act, the Infectious Diseases Act, the Mental Capacity Act, Criminal Procedure Code and the Health Products Act, and even the Penal Code where serious injury or death might have occurred due to negligent practice. The law relating to day-to-day practice issues is drawn in large part from tort law, which is mainly based on common law. Tort law defines many of the rights of a patient. It helps to define the legal expectations of the doctor’s responsibility to the patient, such as setting the legal standard of care for medical diagnosis, treatment and advice. In contrast to the common law, the laws and legal principles are codified in civil law countries (which include many continental European countries). In these countries, judges are not recognised as having a role in law-making.
What is case law?
Statutes are laws laid down in Parliament, and generally they outline broad principles. The interpretation that judges give to statutory provisions in cases provides guidance on the meaning and application of statutes. If there is no statute governing a specific issue, the law can be defined according to the decision of the court. Within each decision, there is one main reason or principle for the judgement that is laid down. If there has been an earlier decision relating to the same context, a judge will usually be expected to follow that. Previous decisions are always binding on lower courts, but courts of the same jurisdiction can sometimes choose to depart from principles laid down in previous decisions. These judicial interpretations and decisions that are found in cases constitute case law.
What professional guidelines apply?
Standards of professional conduct expected of doctors are set out by the Singapore Medical Council (SMC) in its Ethical Code and Ethical Guidelines (SMC Code & Guidelines). The SMC is empowered under the Medical Registration Act which gives it statutory responsibility for the professional regulation of doctors.
The SMC is the professional self-regulatory body of medical profession in Singapore. Their decisions have no legal standing, but provide the guidelines for how the profession expects itself to behave. The strongest sanctions that the SMC can impose are fines or suspension or even revocation of the doctor’s licence to practice. As opposed to a tortious claim where any award against the doctor goes to the party taking action, fines by the SMC revert to the SMC.
The SMC Code and Guidelines capture important values within a doctor-patient relationship that if anything can exceed those recognised in law. These include requirements relating to standard of care, conflict of interest, advertisements, consent, truth-telling, confidentiality and patient privacy.
Does a patient have a right to informed consent?
The requirement of consent arises from the recognition in law that a patient should be able to exercise autonomous choice in making decisions about his medical care. Obtaining consent is a communicative process that could occur at different points in the relationship between the doctor and her patient. It is not limited to accepting a proposed treatment, but can relate to a patient’s choice of different treatment options and refusing treatment. In order for consent to be legally valid, it must have been obtained:
- from a patient with the requisite capacity or from another person legally empowered to make decisions on behalf of the patient;
- after the patient has been provided with information that is sufficient for decision-making; and
- voluntarily, in that the patient should not have provided consent under conditions of coercion, duress, or manipulation.
Treating a patient without his consent is a civil wrong that is actionable in law as battery. A failure to adequately inform the patient when obtaining consent could amount to negligence, which is also actionable in law. In addition, these failings violate professional requirements under the SMC Code & Guidelines, where patients are recognised as having a right to information and self-determination. More specifically, a doctor is required to ensure that her patient is adequately informed of his medical condition, as well as treatment options, so that the patient is able to participate in decisions about his treatment. Thus a doctor could also be brought before the SMC Disciplinary Committee for failing to obtain adequate consent.
Are there exceptions to informed consent?
There are some exceptions to this requirement, such as during an emergency when treatment must be administered immediately in order to save the patient’s life or to prevent serious harm that the patient would have reasonably wanted to avoid. Other exceptions to the consent requirement include a waiver by the patient (whether implicit or explicit), incompetency, and other exceptions provided defined by statutes law. For instance, the law legislates for certain individuals who are assessed as a danger to self or others to be provided institutionalised care. The law requires medical care to be provided in ways that advance the best interests of these patients who are deemed to not have the capability of exercising individual autonomy.
Do doctors have an obligation to tell the truth?
Truth-telling is entailed in the requirement for a patient to be adequately informed of his condition and treatment options so as to allow the patient to make informed choices. In consent taking, the law generally expects the communication between a doctor and her patient to be accurate, open, and honest. The SMC Code & Guidelines states that a doctor must not deliberately deceive her patient on any aspect of his diagnosis or management. Any information provided to the patient must be presented in terms and at a pace that allows the patient to make informed decisions about his treatment and care options. There may be exceptions to disclosure, such as when the doctor has assessed that the patients will react in an extreme way which would cause the patient serious harm. However, a patient is usually assumed to have the ability to cope with information disclosed to him about his health unless there are clear indications to the contrary. Often, the cause of distress is not so much from the information disclosed, but from how the disclosure was done. Another challenge in the practice of truth-telling is in determining the extent of disclosure that is appropriate. For instance, to what extent is there a duty to disclose unexpected or remote outcomes of care? A doctor could be held to have fallen below her professional responsibility of informing her patient of a risk associated with a proposed procedure that the patient has indicated or demonstrated to be important or of material concern.
What is medical negligence?
Medical negligence is a specialised area of law concerned with standard of medical conduct that is considered acceptable in law. It imposes a duty on doctors to take reasonable care to avoid injury to those under their care. A duty of care generally exists in law on a doctor looking after her patient, the latter being someone who has relied on the former’s expertise. For doctors in general, the law in Singapore has primarily deferred to professional medical knowledge in the determination of an appropriate standard of care relating to medical diagnosis and advice, including obtaining consent and treatment. In Singapore, the legal standard in relation to diagnosis and treatment, which is not necessarily the SMC standard, is that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper and responsible by a responsible body of medical practitioners skilled in that particular art, subject to the test of logical reasoning. So a doctor would not be legally negligent for a diagnosis or treatment if it is supported by a respectable body of medical opinion, so long that opinion can be logically defended. Where the provision of medical advice is concerned, the Supreme Court of Singapore has, in the landmark decision of Hii Chii Kok v Ooi Peng Jin Lucien London & Anor, instituted what it considers to be a more patient-centric standard of care. Under this revised standard, a doctor is required to disclose information that the doctor knows is important or would be reasonably relevant and material. Whether the information is important or reasonably relevant and material should be determined from that particular patient’s standpoint. The information in medical advice includes diagnosis, prognosis (both with and without treatment), nature of the proposed treatment, risks and alternatives entailed. A doctor would fall below this standard of care if she possessed information that is important or reasonably relevant and material to the patient, and failed to inform that patient without any legal justifications. The legal justifications for non-disclosure of information in medical advice include waiver by the patient, emergency treatment and therapeutic privilege. It is worth emphasising that it is no longer adequate for a doctor to decide as a matter of medical judgement whether it would be appropriate to disclose a particular risk to her patient based on a body of knowledge and usual practice. A doctor would be negligent for failing to disclose a particular risk that was reasonably relevant and material to the patient and where there was no legal justification for non-disclosure. Put another way, the questions that would be asked in determining adequacy of information are:
- Would a reasonable patient have expected to be given that information?
- Would it be reasonable to expect the doctor to have given the information, no matter how seemingly inconsequential, taking into account what is unique about the patient or her circumstances?
- Is there sound legal justification for the doctor not to disclose the information?
It is important to recognise that the SMC has instituted a higher professional standard for a doctor to ensure that her patient is aware of the purpose of a recommended test, treatment or procedure. This would require the patient to be informed of the benefits, significant limitations, material risks (including those that would be important to the patient in his particular circumstance), and possible complications of the proposed intervention, as well as alternatives that are available to the patient. A doctor who fails to inform her patient of material risks in relation to a procedure could be subject to disciplinary action by the SMC, even if she has not fallen below the legal standard.
Does a patient have a right to medical confidentiality?
Communication on treatment between the doctor and her patient is confidential. Ethical guidelines including the SMC Code & Guidelines have clearly enunciated this, as have SMC cases. The law on this is conjectured from English law, which while not binding is considered highly influential where no similar cases exist in Singapore. The Personal Data Protection Act formalises in statute many of the principles relating to confidentiality, which are also encapsulated in the SMC Code & Guidelines. For instance, a doctor must not access confidential patient information if she is not involved in any aspect of the patient’s care. Communicative details should not be disclosed to a third party unless this is done for the therapeutic benefit of the patient or if the patient’s consent has first been obtained (or is otherwise waived or inapplicable). Medical confidentiality is not absolute. Examples where it is superseded or overridden are with patient consent, for the best interest of patients (e.g. sharing of information within the healthcare team), by legislation (e.g. notification requirements in the Infectious Diseases Act, Misuse of Drugs Regulations and Criminal Procedure Code), a court order, or a greater public interest in disclosure (e.g. clear danger of harm to an innocent third party or the public at large). If the doctor makes a disclosure in breach of patient confidentiality, she must have sound justifications in doing so.
Does a patient have a right to privacy?
A patient has a legal right to informational privacy. Medical information that identifies a person, whether living or dead, is protected by law as personal information. Under the Personal Data Protection Act, healthcare institutions are required to ensure that medical information collected is necessary, accurate and complete. They are also required to make reasonable security arrangements to prevent unauthorised access, use or disclosure, and ensure that medical information transferred outside of Singapore is likewise protected by a recipient individual or organisation. In addition, the patient has a right to access his or her medical information, to obtain information about its use, and to require any inaccurate personal information to be corrected. The SMC Ethical Guidelines indicate the need for the medical profession to respect general patient privacy.
Hii Chii Kok v Ooi Peng Jin London Lucien & National Cancer Centre of Singapore Pte Ltd  SGCA 38.
Yeo Khee Quan, Leslie Chew, Goh Lee Gan, Terry Kaan, Kuah Boon Theng and Edwin Tong, Essentials of Medical Law (Singapore: Sweet & Maxwell Asia, 2004).
Calvin W. L. Ho and Peter Loke, 'An overview of key aspects of Singapore medical law' 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.