Medical Negligence – Commentary on Hii Chii Kok

The writers are part of the team led by Mr N Sreenivasan, S.C. and Mr Palaniappan Sundararaj that recently had the privilege of acting for Tan Sri Hii Chii Kok in these proceedings. While the Court of Appeal ultimately ruled against our client on the facts of his case and found that the defendant doctor and medical institution were not negligent, the case has raised important issues of communication between doctor and patient, and has helped to develop the law of medical negligence. Following the decision of the Court of Appeal, a doctor’s duty to advise has moved away from a paternalistic approach to one that strives for a balance of doctor and patient’s interests.


The Modified Montgomery Test : A New Standard of Care Imposed on a Doctor’s Duty to Advise as Set Out in Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38

When a patient consults a doctor, the doctor’s duty of care for the patient may be broadly described as having three aspects: The diagnosis of the ailment (if any), the advice on evaluative tests or treatment to undergo, and finally the actual treatment and care.


The Bolam-Bolitho Test

By the Court of Appeal decision of Khoo James and another v Gunpathy d/o Muniandy and another appeal [2002] 1 SLR(R) 1024 (“Gunapathy”), Singapore adopted the Bolam test with the Bolitho addendum which had been conceived in the United Kingdom in 1957 and 1998 respectively. The Bolam-Bolitho test refers to a standard of care applied to medical practitioners: A doctor would be found to have met the requisite standard of care if he had acted in accordance with the practices of a responsible body of medical practitioners skilled in the particular area, and if those practices were deemed to be supported by a logical basis.

In the Gunapathy decision, the Court of Appeal had articulated that the Bolam-Bolitho test would apply for all three aspects of a doctor’s duty of care. This was also the position in other jurisdictions such as the United Kingdom and Malaysia.


The Montgomery Test

However, in the last two decades, jurisdictions such as Malaysia and Australia had begun to move away from the Bolam-Bolitho test viz-a-viz the duty to advise a patient. More recently, in 2015, the United Kingdom also abandoned the Bolam-Bolitho test when the Supreme Court passed a landmark decision – Montgomery v Lanarkshire Health Board [2015] UKSC 11 (“Montgomery”).

In Montgomery, the United Kingdom Supreme Court criticised the Bolam-Bolitho test for being too paternalistic, and for viewing a patient as being completely dependent on information provided by his doctor. This meant that a doctor could choose to withhold certain options from a patient if he felt that he was better able to make a decision in the interests of the patient.

In its place, the Supreme Court imposed a new test governing the duty to advise: A doctor would have to ensure that a patient is aware of any material risks in any recommended treatment and its reasonable alternatives; the test of materiality cannot be reduced to percentages; and it is only in very rare situations that a doctor may withhold information if he feels that its disclosure would be detrimental to the patient, i.e. invoking therapeutic privilege. This new test recognises that the relationship between doctor and patient has evolved such that they may have a dialogue over the patient’s options, and the doctor would facilitate the patient’s understanding.


The Proceedings

Our client was the patient in these proceedings. He had consulted and sought medical treatment from a surgeon and a medical institution. As part of our client’s case, we had argued that our client should have been advised to undergo certain other investigative tests after he had been diagnosed with masses in his pancreas, and that he should have been given an option to observe the masses rather than going for surgery shortly after the diagnosis was made. In the proceedings before the Trial Judge and before the Court of Appeal, we argued for the imposition of the Montgomery test with respect to the duty to advise.

Our Mr N Sreenivasan, S.C. argued that the aspect of advice, differs from the other two aspects of a doctor’s duty of care towards a patient: While a patient is fully passive during the diagnosis and treatment aspects which are wholly within the realm of the medical professional, a patient should play an active role in deciding to undergo further tests or treatment.


The Modified Montgomery Test

The Court of Appeal agreed with our argument, and went on to note that in relation to the aspect of advice, the decision on a patient’s course of treatment is ultimately the patient’s decision to make. However, it recognised the imbalance in the doctor-patient relationship: The doctor has the medical knowledge; the patient requires treatment but may not be able to weigh the risks and options without the doctor’s guidance.

The Court of Appeal proceeded to impose a new patient-centric, three-staged test (the “Modified Montgomery test”), which strikes a balance in the doctor-patient relationship and which places more emphasis on patient autonomy than the Bolam-Bolitho test, to address the patient’s more active role.


Stage 1: Was the patient provided with the relevant and material information necessary for him to make an informed decision?

At this stage, the doctor must provide the patient with all relevant and material information to make a decision. Such information must include information which a patient is reasonably likely to have considered significant in arriving at his decision, or are matters which the doctor knew or had reason to believe that the patient would consider as such.

Examples of relevant and material information would include:

(a) The doctor’s diagnosis of the patient’s condition;

(b) Prognosis of that condition with and without medical treatment;

(c) Nature of the proposed medical treatment;

(d) Risks associated with the proposed medical treatment; and

(e) Reasonable alternatives to the proposed medical treatment, and the advantages and risks of those alternatives

The Court of Appeal has cautioned that a doctor should not overload the patient with irrelevant information. A doctor should only disclose information which would be relevant and material to a reasonable patient in the particular patient’s position and information that a doctor knows is important to the particular patient in question. The doctor must also ensure that the information given is presented in a manner that allows the patient to assimilate it, thereby enabling him to make informed decisions.

Stage 2: Modified Montgomery Test does not apply for doctors without knowledge of information in question

The second stage of the Modified Montgomery Test deals with the situation where a doctor does not actually have the information which he ought to have provided the patient with. The Court of Appeal has made it clear that if the doctor does not possess the information, this would not be an issue dealt with under advice, but to be addressed under the issues of diagnosis or treatment instead.

Stage 3: Can the doctor justify withholding the information?

If the Court finds that the doctor was in possession of the material information but had chosen to withhold it from the patient, the Court would then have to consider whether the doctor had reasonable justification for withholding such information. The doctor bears the burden of justifying why he chose to withhold the information.

Situations where a doctor is justified in withholding information include where a patient has decided he does not want to hear further information, where emergency treatment is rendered and exercise of therapeutic privilege.


Conclusion: Practical Implications of the New Modified Montgomery Test

As lawyers with an interest in medico-legal matters, we welcome the new Modified Montgomery Test. It empowers patients to make more informed decisions regarding their own healthcare and acknowledges the importance of respecting patient autonomy in Singapore.

It also brings the civil law in sync with the Singapore Medical Council’s Ethical Code and Ethical Guidelines (2016) (the “ECEG 2016”) which governs medical practitioners. It acknowledges that patients today have become more informed about medical matters, their choices and rights. The ECEG 2016 (and also the earlier 2002 version) expressly recognises patient autonomy and informed consent as imperative today.

It is therefore now more essential for a doctor to better understand his patient in order to be able to consider the individual patient’s concerns and what is material to him. A doctor needs to be more mindful of the peculiarities and characteristics of the particular patient when informing him of various treatment options and their associated risks in order to obtain informed consent. Even a low risk should be shared where it would be a particularly significant risk for the specific patient.

Concurrently, a patient needs to be more forthcoming with information that he thinks his doctor should be aware of in order to give him the best advice possible. A patient cannot simply expect his doctor to read his mind and know what is material and relevant to him.

The new requirements will therefore encourage doctor and patient to engage in a meaningful dialogue such that a patient will be armed with the relevant knowledge to make a decision on the course of treatment he wishes to undergo. This is a progressive step forward from the former Bolam-Bolitho approach in relation to advice, under which a doctor could escape from a failure to disclose information on the basis that his practices were in line with that of a responsible body of medical practitioners.

Ultimately, it is the patient who must live with the consequences of his choice of treatment, and it would only be fair for a patient to be making an educated decision before undergoing the treatment.


If you have any queries pertaining to this article, please feel free to contact Mr N. Sreenivasan, SC at, Mr Palaniappan Sundararaj at, Ms Lim Min at, or the Straits Law Director who usually attends to your matters.