Medical Duty to Advise: Legislating the Standard of Care

Abstract

The standard of care of doctors in medical negligence cases is determined by the Bolam test, according to which doctors are not negligent if they act in accordance with a practice accepted as proper by a responsible body of medical opinion. This is known as the peer professional test. While this test is suitable to the duty to diagnose, treat, and advice, it poses challenges for the duty to inform patients of risks in proposed treatment and alternatives. Most common law jurisdictions have rejected the peer professional test and adopted the prudent patient test, according to which doctors are obliged to disclose information on risks to which a a reasonable patient would attach significance. Much of the discourse is driven by notions of patient autonomy, which has strained the doctor-patient relationship and put doctors on the defensive as they do not control the information that should be disclosed. Singapore recently amended the Civil Law Act (Cap 43, 1999 Rev Ed) to reinstate the peer professional test for the duty to inform. This paper reviews the law on the standard of care in medical negligence, and analyses the new section 37 of the Civil Law Act. It identifies some potential challenges in applying the new law.