LAW AND SOCIETY
When Breath Becomes Air: Why the Hii Chii Kok Test Should Be Applied in the English Courts Edwin Teong Ying Keat, University of Bristol
To the best of one’s ‘ability and judgment’,1 doctors treat patients. With technological improvements in medical treatment, more sophisticated legal tests are required to deter medical negligence. Hii Chii Kok v Ooi Peng Jin London Lucien (“Hii Chii Kok”)2 established 3 expectations of doctors in upholding the standard of care. These 3 concerns include diagnosis, advice and treatment. Regarding advice, it refined the ‘patientcentric’ test in Montgomery v Lanarkshire Health Board (“Montgomery”).3 This article posits that the U.K. Courts can adopt the test regarding medical advice in Hii Chii Kok. This is informed by 3 reasons. Firstly, doing so will provide unprecedented and clear guidance on defining ‘consent’ for the UK Courts. Secondly, it will enshrine the moral autonomy of patients in making informed decisions. Lastly, it balances both patients’ and doctors’ rights, thus taking an objective approach. This is as the existing Montgomery test only focuses on the patient’s informed consent.
Added Guidance on ‘Consent’ (i) Critique of Montgomery Herring argues that in the UK, there is no ‘clear guidance’ on the exact perimeters governing consent.4 The 2-strand test on consent is set out in Montgomery. It establishes the need to disclose material risks with 2 qualifications. The test is as follows: i) if the reasonable person would be likely to attach significance to a risk ii) Risk was so material that a particular patient would accord significance to it when reasonable persons do not. The test is however subject to 2 qualifications which are: i) informing the patient would be ‘seriously detrimental to the patient’s health’5 and ii) emergencies6. However, Herring has 3 main contentions with the test. Firstly, he argues that the second strand may be too onerous. This is as it covers too many categories of patients. An example includes having to disclose all risks to things most people find irrelevant.7 Secondly, 1
The Hippocratic Oath.
2
[2017] SGCA 38.
3
[2015] AC 1430.
4 Jonathan Herring, Medical Law and Ethics (6th edn, OUP 2016) 172.
104
the need to discuss reasonable alternatives remains open-ended. For instance, what constitutes ‘reasonable alternatives’ that necessitate disclosure? Lastly, patients may be overwhelmed if they are informed of every risk attached to all medical procedures. These contentions render the Montgomery test inadequate in establishing the perimeters of consent. (ii) Refining Montgomery The 3-strand test in Hii Chii Kok refines the Montgomery test. The first strand entails the relevance and materiality of information provided8. Materiality is construed from the patient’s perspective. It includes information besides risks taken which a patient should know, including alternatives to proposed medical treatment and a benefit-risk analysis of those alternatives. Secondly, the test entails whether the doctor ought to have prescribed certain tests or apprised himself of the medical information. Lastly, the courts must consider why the information regarding treatment was withheld. Hii Chii Kok goes further than Montgomery in balancing between the concerns of doctors and patients. Firstly, it addresses Herring’s critique that the second strand in Montgomery risks being too onerous. It considers whether the doctor ought to have known about the risks and reasons for nondisclosure. This prevents all categories of patients from claiming they should have been informed of significant risks. If the doctor can demonstrate reasonably justifiable reasons for non-disclosure, he will not have breached his duty. The Court in Hii Chii Kok explains this strand undergirds the principle that doctors are not obliged to provide patients with ‘encyclopedic’9 ranges of information. (iii) Defining the Perimeters of Relevant Information Hii Chii Kok establishes the ‘quantity and quality’ aspect of information disclosed, thereby defining the perimeters of relevant information to patients. This includes:10 (a) the doctor’s diagnosis of the patient’s condition; (b) the prognosis of that condition with and
5 Montgomery (n 3) [88].
8 Hii Chii Kok (n 2) [137].
6 ibid [27].
9 Hii Chii Kok (n 2) [186].
7
10 Hii Chii Kok (n 2) [138].
(n 4) 175.