Insights

By Nicholas Liu, Associate Counsel, RevLaw LLC
May 2021

In October 2020, Singapore’s Parliament passed the Civil Law (Amendment) Bill 2020 to add a new s 37 to the Civil Law Act. When the new section comes into force (at a date yet to be specified), it will modify the common law standard of care applicable to medical advice.

Despite initial appearances, s 37 should be of interest not only to the medical profession, but to all professionals, because it leaves open the possibility of changes to the standard of care in other professions by analogy.

Background and contents of s 37

Section 37 was introduced in response to concerns within the medical profession regarding the standard of care for medical advice laid down in the landmark case of Hii Chii Kok v Ooi Peng Jin London Lucien [2017] 2 SLR 492. In Hii, the Court of Appeal applied a modified version of the Montgomery test (named after the UK Supreme Court decision of Montgomery v Lanarkshire Health Board [2015] UKSC 11).

The modified Montgomery test was a game-changer. It required doctors to disclose all risks that would be material to a reasonable patient or to the particular patient being advised, rather than risks that the doctor herself considered material. Further, materiality would be assessed by the court itself, not by deferring to medical expert opinion under the traditional Bolam–Bolitho test.

Many doctors confronted by this new test felt uncertain as to what was required by them, and fearful that their genuine assessments as to what would be material to their patients could be too easily challenged in court. Parliament introduced s 37 to address their fears through a compromise: not as plaintiff-friendly as the modified Montgomery test, but not as defendant-friendly as the Bolam–Bolitho test at common law.

Why should other professions care?

Section 37 should concern all professionals because it is drafted in a way that does not fully repeal the existing common law. This is clear not only from its drafting (which does not mention any repeal) but also from the Explanatory Statement to the Bill, which expressly states that “the common law in this area will continue to apply where it is not inconsistent with the provisions of the Bill.”

What this means is that Hii remains good law except where it conflicts with s 37. The principles stated in it can still be applied where s 37 is silent. This potentially includes application by analogy to non-medical contexts, since s 37 is restricted to medical advice.

Such an extension has already occurred in the UK, as seen in at least three cases applying versions of the Montgomery test, in part or in whole, to other professionals:

(a) Baird v Hastings [2015] NICA 22: The Court of Appeal of Northern Ireland observed that the test of materiality of information set out in Montgomery applied to legal advice given by solicitors.

(b) O’Hare v Coutts [2016] EWHC 2224 (QB): The English High Court applied the Montgomery test to investment advice given by a financial advisor (discussed further in Tan Wei Ming, “Ill Advice or Ill-Advised? Negligent Medical Advice and the Modified Montgomery Test”).

(c) Thomas v Triodos Bank [2017] EWHC 314 (QB): The English High Court applied the test of materiality in Montgomery to information provided by a bank to a customer who had requested it.

However, there is at least one decision going the other way. In Barker v Baxendale Walker Solicitors [2017] EWCA Civ 2056, the English Court of Appeal rejected the application of the Montgomery test to a solicitor’s legal advice regarding a tax avoidance scheme. One of the three concurring judgments in that case (by Lady Justice Asplin) reasoned that the Montgomery test was based on considerations specific to medical advice, such as the shift in society’s attitudes toward the doctor–patient relationship. These were not present in the context of legal advice.

It remains to be seen how Singapore courts would respond to attempts to extend the modified Montgomery test to non-medical contexts. In the meantime, prudent professionals should familiarise themselves with the test, as any judicial developments in this area are likely to have retroactive effect (as is the case with common law developments generally).

The modified Montgomery test and other principles from Hii

The test has three stages to it, which can be summarised as follows (after making adjustments to accommodate potential application to non-medical contexts):

(a) Was the information material? “Materiality” can be either objective or subjective, meaning:
(i) Objective: Any reasonable client in the same position would consider it important to their decision.
(ii) Subjective: The particular client would consider it important to their decision, and the professional knew or should have known of facts that made that importance apparent.

(b) Did the professional have the information? (If she did not have it, but perhaps should have had it, that is a separate issue dealt with under the traditional Bolam–Bolitho test.)

(c) Did the professional have a justification for withholding the information?

As to the justifications that could apply at the third stage, one that has obvious cross-profession relevance is waiver (the client has indicated that she does not want such information). Two other justifications, specific to medicine, are emergency treatment (the patient is unconscious or not lucid and is in serious need of urgent treatment) and the so-called therapeutic exception (giving the patient the information would, in itself, cause her great harm). These two justifications may or may not have sensible analogues in other professions. In any event, the list of possible justifications is not closed.

Further rules or principles laid down in Hii, which might also be applied by analogy, include the following:

(a) When assessing materiality from the client’s perspective, both the degree of risk and the degree of harm if the risk actuates must be considered.

(b) The professional’s duty is not discharged merely by giving information. The information must be explained in a way to help the client understand.

(c) The professional should not overwhelm the client with all available information just to cover herself. She must exercise her judgment as to what is objectively or subjectively material to the client.

(d) The fact that a piece of information seems likely to influence a client to make a poor decision is ordinarily not a sufficient justification to withhold it.

Implications for other professions

Non-medical professionals should consider whether their current client communications practices are compatible with the modified Montgomery test, in the event that the Singapore courts decide to apply it by analogy. As a rule of thumb, the more attention a professional pays to communication and facilitating the informed decision-making of the client, the more likely it is that her practices are Montgomery-compliant.

Enterprising plaintiffs’ lawyers should be alive to the availability of possible Montgomery-based arguments to augment or replace arguments based on the traditional Bolam–Bolitho test. If such an argument were accepted, the potential pay-off could be immense: liability could attach so long as the court were to reach a different view from the defendant and her experts as to materiality, even if the experts’ views were otherwise defensible.

Finally, clients should be proactive in making inquiries and expressing their concerns to the professionals who advise them. Regardless of the legal test that applies, the ideal outcome for both client and professional is never litigation, but effective two-way communication that equips the client to make a decision they can live with.