The Future of ESG in Singapore

The PDF version of this article can be found here.

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The future of esg in singapore

ivan tan ren yi*

I.                    Introduction

Globally, policymakers are having to rethink how best to tackle sustainability issues in their own economies, issues created in large part by corporate short-termism.[1] Short-termism refers to an “excessive focus on short term goals at the expense of longer-term objectives”.[2] For companies, the excessive focus on short term growth and earnings without due regard of long terms costs have accelerated the pace of environmental degradation and social inequality.[3] It is within this context that I discuss the importance of companies (specifically Singapore listed companies) integrating Environmental, Social and Governance [ESG] factors into their business practices.

ESG factors refer to the deployment of business and finance in a manner that protects the stability and resilience of the environment, facilitates social justice and promotes long-term economic prosperity, thereby securing the “social foundation” of humanity without further degradation of the “planetary boundaries”.[4]

II.                 The importance of esg factors

There is a growing consensus around the world that ESG factors are a key determinant factor in the corporate performance of companies, and would become even more important in the near future,[5] exacerbated in the wake of Covid-19 with increased scrutiny on how companies treat their employees and customers,[6] coupled with the rise of carbon taxes.

According to a report by the Chartered Financial Analyst [CFA] Institute that studies ESG Integration among companies in Asia [CFA Report],[7] among the 3 ESG factors, corporate governance was the main driver of share prices in listed companies in 2017. More importantly however, the report also indicated that social and environmental issues will have an even greater impact on share prices moving forward.[8]

It is striking that Singapore listed companies, while ranking amongst the highest in Asia for ESG, surprisingly rank amongst the lowest when rankings are adjusted to only reflect Environmental and Social factors [E/S] as compared to companies in other highly developed economies in Asia such as Hong Kong, Korea, Taiwan and Japan. [9] While this is a testament to the long standing reputation of Singapore’s good corporate governance, it also highlights how comparatively, environmental and social factors are lacking.

With the rise of institutional shareholding in listed companies all around the world, institutional investors’ portfolio selection of companies can have a very large impact on a company’s share price performance due to the enormous amount of funds they have at their disposal for investment.[10] Importantly, institutional funds are increasingly screening for E/S factors when making their investment decisions.[11] Taken together, a company that winds up on the negative list of a large international institutional fund such as Blackrock or Vanguard could see its share price drop precipitously.[12]

However, one might argue that the impact of a low E/S score in the Singapore context is less pronounced. Afterall, Singapore’s shareholder landscape is dominated by government linked and family owned companies, where institutional investors do not have a substantial shareholding.[13] Consequently, the impact of an institutional fund’s perception of companies listed in Singapore might not be as pronounced as in the West.

Be that as it may, the implications of having a low E/S score would go beyond altering the perception of institutional investors, to also affecting a company’s reputation amongst their consumers and employees as well. This is especially so in the wake of the Covid-19 pandemic.[14] Also, with the introduction of carbon taxes in Singapore,[15] the cost of noncompliance by companies would be higher, since companies would have to pay more taxes if they are less fuel efficient and this would in turn negatively affect the financial performance of such companies.

In addition to the financial implications for companies, the stakes are even higher for Singapore, which markets itself an International Financial Centre [IFC].[16] Scoring significantly lower than the other developed economies in the Asia-Pacific region on environmental and social factors is not beneficial to Singapore’s reputation.

According to the CFA report, the main reasons for companies in Singapore being reluctant in adopting E/S practices are, inter alia: (i) the “[l]ack of comparable and historical data” (47%), (ii) a “[l]imited understanding of ESG issues” (44%), (iii) “[n]o evidence of investment benefits” (36%), and (iv) a “[l]ack of company culture” (27%).[17] Firstly, ESG remains a highly ambiguous term to many people, and they do not completely understand what ESG entails.[18] Secondly, the correlation between embracing ESG and better corporate performance, specifically E/S factors is still not clear. Currently, studies on corporate outperformance focus predominantly on Europe and the United States. Even when there are case studies that showcase the benefits of ESG, they do not highlight the opportunity costs. The lack of comparable and historical data is also a recurring problem in Singapore.[19] Thirdly, Singapore lacks a culture for ESG integration. While Singapore may be slightly more advanced on ESG integration than other parts of Asia and have a more advanced understanding of ESG, much of this knowledge remain scarce in local companies.[20]

In this article, I will attempt to diagnose the causes of this underperformance, and surmise that a combination of reasons such as a (i) lack of a clear working definition of E/S, (ii) a dearth of data on the relationship between E/S and corporate performance within Singapore, (iii) a weak corporate culture promoting E/S and (iv) a weak regulatory framework to ensure companies comply with E/S principles are all contributing reasons to this phenomenon.

In turn, I propose that an independent regulatory agency be established to assess the quality of the sustainability reports submitted by listed companies in Singapore based on a set list of criteria. These sustainability reports should plug the informational gap that explains how embracing E/S policies is tied to a company’s long-term financial performance. The regulatory agency should also issue recommendations on areas where companies can improve. Additionally, the agency should ensure that companies follow through with E/S policies which they had pledged to adopt in their sustainability reports. Finally, stewardship would play an important role in helping companies embrace E/S factors in the coming years. Both the Singapore Stewardship Code[21] and Family Stewardship Code[22] should be improved by having clearer guidelines on what ESG means and how it should be implemented within companies.

III.              Current regulatory regime

Free trade jurisdictions with open financial markets like Singapore are perceived to prefer incentive based regulation, for fear than an overly-prescriptive approach might drive investment and businesses away.[23] So far, the Singapore Government’s approach to regulation is consistent with such a perception, as shown in the government’s generous funding in supporting companies in their pursuit of sustainability,[24] while simultaneously maintaining a generally flexible regulatory regime.

As of 2016, the Singapore Exchange [SGX] has introduced a regime requiring listed companies to publish annual reports on a “comply or explain” basis.[25] However, these sustainability reports issued by companies have been criticised for box-ticking.[26] Critically, companies are seen to be publishing these reports “without a clear sense of what it means for their future”, and whether environmental issues such as climate change would force them to alter their business model in the long term.[27]

Furthermore, there is no body that serves the function of an independent auditor/regulator monitoring the accuracy and the extent to which these companies actually follow through with the E/S plans they publish in their sustainability reports. In contrast, in Japan, the top ranked economy for E/S factors in the CG Watch Report 2018,[28] most of the corporate disclosures with regard to environmental and social issues have to be sent “to the national regulators for monitoring and compliance purposes”.[29]

Additionally, under the current regime, there is no prescribed method of issuing a sustainable reporting and companies have carte blanche over the topics they want to report on.[30] Consequently, there is a lack of comparable data that other companies can rely on to better implement their own E/S strategies. Also, this flexible regulatory framework opens up the possibility for companies to engage in green washing, where companies can promise to engage in lofty sustainability and corporate social responsibility programmes in their sustainability reports without having to actually follow through on these promises.[31]

There are suggestions as to whether the government should follow the European Union, “which is debating whether to deploy a stick and become a lot more prescriptive in its approach”.[32] In the European Union and the UK where awareness of sustainability issues is high, hard law provisions regulating these issues make sense because compliance is likely to be high. However, in Asia, where many companies are still trying to grapple with E/S concepts, either due to a strong profit maximisation mindset or simply a lack of information,[33] a softer regulatory regime that focuses on education rather than penalties could be more appropriate. Arguably Singapore is in the latter scenario, and in a phase where companies are still trying to grapple with E/S concepts. However, once E/S factors have gained a stronger traction in Singapore, more can be done to ensure companies continuously look for ways integrate E/S concepts into their business practices such as through instituting harsher penalties for failing to comply with E/S laws and guidelines.

On the other hand, the results have shown that the current approach might not be sufficient on its own to achieve the desired results. At the very least, SGX could improve the current regulatory regime by issuing clearer guidelines on what companies should report on, so that companies will publish useful data that others can reference to make their own E/S related decisions. For this, inspiration can be taken from the Global Reporting Initiative, an international independent standards organization that helps businesses, governments and other organizations understand and communicate their impact on issues such as climate change, human rights and corruption.[34] In their 2013 conference, it was suggested that sustainability reports be assessed based on basic reporting principles such as materiality, stakeholder inclusiveness, completeness, comparability, balance, accuracy and reliability.[35]

Additionally, the government could consider setting up an independent regulator, or rely on existing regulators such as SGX or the Monetary Authority of Singapore to make sure that companies actually follow through on what they propose to do in their sustainability reports. Alternatively, the government could mandate that companies have to send their sustainability reports to independent auditors for monitoring purposes. External checks on sustainability reports “reduce the risk of greenwashing and reports being used as” marketing exercises by companies.[36]

IV.              the singapore and the family stewardship codes to play a role beyond halo signalling

Stewardship is another area of focus which the government could look into to help companies better integrate E/S factors into their businesses. The Singapore Stewardship Code and Family Stewardship Code were Singapore’s unique response to the UK’s Stewardship Code[37], which itself was enacted in response to the rise of institutional investors as the largest investor group in listed companies in the United Kingdom [UK] and to compel them to play a supervisory role to alleviate the shareholder-management agency problem.[38]

Unlike the UK, institutional ownership of listed Companies in Singapore continue to be small, and Singapore’s shareholder landscape is dominated by family owned and government-linked companies [GLCs].[39] Consequently, as pointed out by Prof Dan W Puchniak & Samantha S Tang in their article “Singapore’s Embrace of Shareholder Stewardship: A Puzzling Success”, Singapore’s stewardship codes were designed to be “toothless”,[40]and instead were enacted to signal good corporate governance in the country by keeping up with developments in “Anglo-American-cum global standards of good corporate governance”, despite not having any real need for it.[41]

There are a couple of reasons why the Singapore Stewardship Code and Family Stewardship Codes lack any “tooth” in compelling Institutional investors and Family Controllers to comply with them.[42] Firstly, the Singapore Stewardship and Family Stewardship code do “not articulate a singular model of stewardship with which investors should comply”.[43] Secondly, the codes do not employ a “comply or explain” approach, and it operates purely on a voluntary basis.[44] Thirdly, there is no mechanism/metric to determine if institutional investors have complied with the codes.[45] Finally, there is no regulatory agency in Singapore that is responsible for the administration of the codes.

Stewardship Asia, the organisation tasked with drafting the stewardship codes, is only responsible for promoting the code, and does not perform any regulatory function.[46] Given Temasek, Singapore’s state owned investment trust’s close relationship with Stewardship Asia, Puchniak & Tang argue that Temasek is located within an institutional architecture that serves as a functional substitute for shareholder activism and monitoring of management.[47] There are also significant legal obstacles that limits excessive “state influence from being exerted on Temasek’s board or its subsidiary companies”, which “ensures that decisions made by Temasek’s management are made for commercial and not political reasons”.[48]  Temasek has also committed itself to refrain from any direct involvement in the management of its investee companies.[49] This arrangement has served Singapore well in the area of corporate governance, and subsidiary companies of Temasek can operate without a great amount of interference from Temasek.[50] It thus would be accurate to conclude that Singapore’s successes in the area of corporate governance are ‘in spite of’ rather than ‘because of’ the Stewardship code, and by maintaining the status quo.

However, the viability of such an arrangement is put into question when tackling issues arising from E/S factors. As established earlier,[51] because of the multitude of reasons such as the corporate culture in Singapore, coupled together with a lack of solid data, the management of listed companies remain predominantly focused on maintaining high returns on investments, without adequate regard for E/S factors.

Admirably, Temasek has in recent years been more vocal about promoting sustainability efforts.[52] However, the very institutional architecture that has prevented it from interfering directly with the management of GLCs could now also impede its ability to compel the management of GLCs to seriously consider integrating E/S factors. Without greater interference from Temasek, it is unlikely that GLCs would have the necessary incentives to integrate E/S factors into their business practices.

The same criticisms of the Singapore Stewardship Code could also be levelled at the Family Stewardship Code, which was tailored for family owned companies, with the aim of enabling owners to become better stewards of their company. Based on a textual analysis of the Family Stewardship Code, it does not seem to have a huge focus on ESG.[53] ESG factors seem to be implied rather than expressly mentioned in the code, and there are no guidelines on what E/S actually means. For example, Principle 6 of the family stewardship code appears to reflect environmental, social and governance concerns. It states, “Do well, do good, do right; contributing to community”.[54] As Puchniak & Tang note:

This principle promotes the importance of “non-economic wealth”, such as “social capital, communal ties, family reputation and core values”.[55]

Puchniak & Tang also mention that similar to GLCs, there are functional substitutes in the area of corporate governance with regard to family owned companies, where the controlling shareholder (often the family or family members) would naturally act in the best interests of the company and monitor management.[56] However, I question the extent to which family controllers are able to gauge the long term interests of the company, especially since there is a lack of important data showing tangible financial returns from engaging in these E/S practices and a lack of knowledge of how to plan for the long term in light of these E/S factors. As such, due to the lack of knowledge, family controllers might not know the best way to integrate E/S factors into their business practices.

Additionally, in many of these family-controlled companies, there is a long-established business culture and a set way of doing things which had ensured the success of these companies in the past.[57] Owing to these prior successes, it would be difficult to convince the controllers of these companies that urgent change is required, and especially since there are not enough case studies or information available that link the integration of E/S factors with the long-term success of the company.

In view of these problems unique to the Singapore landscape, I am of the view that the objective of stewardship codes should go beyond signalling good corporate governance to also aid in the integration of E/S factors into company’s business practices. For example, stewardship codes can help to spread best practice and have an educative effect on companies, preparing companies for the “potential strengthening of hard law provisions” on sustainability in Singapore.[58] Unlike the area of corporate governance, which is predicated on shareholders having a specific amount of corporate control,[59] institutional investors could play an integral role in educating companies on ESG best practices, regardless of the size of their stake in the company. These institutional investors have better knowledge and experience on how best to integrate E/S practices to boost corporate performance. Also, the presence of clear and fixed metrics in stewardship codes when determining whether stewards have done enough to assist companies on E/S factors would provide the necessary incentives for institutional investors to engage in adequate stewardship since falling short would be detrimental to their reputation, on which they rely on predominantly to attract investors.[60]

More importantly, there should be a regulator monitoring stewardship activity in Singapore. Previously, I have discussed the possibility of SGX being the one to monitor companies’ sustainability reports. Similarly, they could also be the regulator ensuring the intended stewards of these companies exercise proper stewardship since there is likely to be synergy between the two roles.

V.                 Conclusion

I have discussed the reasons for Singapore’s underperformance with regards to E/S factors and possible policies that can be implemented to improve performance. While every policy has to be tailored to suit Singapore’s needs, there is much to be learnt from observing other economies, especially economies which have done better in the E/S sphere. For now, the priority should be to ensure that Singapore’s companies are keeping up with global developments in the E/S sphere. While the current arrangement of maintaining the status quo has worked well in the area of corporate governance as evinced by Singapore’s high score in this area, this approach has to be tweaked to facilitate greater integration of E/S factors by listed companies in Singapore.

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* LLB (Candidate) (NUS). All errors and views expressed in this article remain my own. Weblinks cited in the article are functioning as of the date of publication.

[1]Ernest & Young Poland, “Short-termism in business: causes, mechanism and consequences” (2014) online: <https://www.ey.com/Publication/vwLUAssets/EY_Poland_Report/$FILE/Short-termism_raport_EY.pdf> at 6.

[2] Ibid at 7.

[3] See generally Henry M Paulson Jr, “Short-termism and the threat from climate change” (1 April 2015), McKinsey & Company, online: <https://www.mckinsey.com/business-functions/strategy-and-corporate-finance/our-insights/short-termism-and-the-threat-from-climate-change>.

[4] Beate Sjåfjell and Christopher M Bruner, “Corporations and Sustainability” in Beate Sjåfjell and Christopher M Bruner (eds), Cambridge Handbook of Corporate Law, Corporate Governance and Sustainability (UK: CUP 2019) 3, 7-10.

[5] See generally S&P Global Ratings, “The ESG Advantage: Exploring Links to Corporate Financial Performance” (March 2020), online: <https://www.spglobal.com/_assets/documents/ratings/the-esg-advantage-exploring-links-to-corporate-financial-performance-april-8-2019.pdf>.

[6] Pippa Stevens, “Sustainable investing is set to surge in the wake of the coronavirus pandemic” (7 June 2020), CNBC, online: <https://www.cnbc.com/2020/06/07/sustainable-investing-is-set-to-surge-in-the-wake-of-the-coronavirus-pandemic.html> [Stevens (2020)].

[7]CFA Institute, “ESG Integration in Asia Pacific: Markets, Practices, and Data” online: <https://www.cfainstitute.org/-/media/documents/survey/esg-integration-apac.ashx> at 18. The report noted that in relation to the impact of ESG issues on share prices: (i) governance issues had a 71% impact in 2017 and are predicted to have a 78% impact in 2022, (ii) environmental issues had a 22% impact in 2017 and are predicted to have a 56% impact in 2022, (iii) while social issues had a 22% impact in 2017 and are predicted to have a 47% impact in 2022.

[8] Ibid at 143.

[9] See Jamie Allen et al, “CG Watch 2018: Hard Decisions Asia faces tough choices in CG reform”, (5 December 2018), CLSA & ACGA, online: <https://www.acga-asia.org/cgwatch-detail.php?id=362> [CG Watch 2018] at 8.

[10] See generally Lucian A Bebchuk, Alma Cohen & Scott Hirst, “The Agency Problems of Institutional Investors” (2017) 31(3) J Econ Perspect 89 [Lucian et al (2017)].

[11] See Sara Bernow et al, “From ‘why’ to ‘why not’: Sustainable investing as the new normal” (25 October 2017), McKinsey & Company, online: <https://www.mckinsey.com/industries/private-equity-and-principal-investors/our-insights/from-why-to-why-not-sustainable-investing-as-the-new-normal>.

[12] See Robert G Eccles & Svetlana Klimenko, “The Investor Revolution”, (May-June 2019), Harvard Business Review, online: <https://hbr.org/2019/05/the-investor-revolution> accessed 29 June 2020.

[13] Dan W Puchniak & Samantha Tang, “Singapore’s Puzzling Embrace of Shareholder Stewardship: A Successful Secret” (October 23, 2019) NUS Law Working Paper No. 2019/022, Vand J Transnat’l Law (Forthcoming), online: <https://ssrn.com/abstract=3474151> [Punchniak & Tang (2019)] at 5.

[14] See generally, Stevens (2020), supra note 6.

[15] Masagos Zulkifli, “Welcome Address by Mr Masagos Zulkifi, Minister for the Environment and Water Resources, at the Launch of Singapore Exchange’s (SGX) Inaugural Review of Sustainability Reports Produced by Singapore-listed Companies, on 4 December 2019” (4 December 2019), Ministry of the Environment and Water Resource, Singapore, online: <https://www.mewr.gov.sg/news/welcome-address-by-mr-masagos-zulkifli--minister-for-the-environment-and-water-resources--at-the-launch-of-singapore-exchange-s-sgx-inaugural-review-of-sustainability-reports-produced-by-singapore-listed-companies--on-4-december-2019#:~:text=Welcome%20Address%20by%20Mr%20Masagos,Companies%2C%20on%204%20December%202019&text=Good%20morning%20to%20all.> [Masagos (2019)] at [24].

[16] Woo Jun Jie, “Positioning Singapore in a new financial world order” (2 October 2019), Today, online: <https://www.todayonline.com/commentary/positioning-singapore-new-financial-world-order>.

[17] Supra note 7 at 146. The report notes that: “Percentages represent those who thought each item was a main barrier. Survey respondents could choose more than one answer.”

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Stewardship Asia, “Singapore Stewardship Principles for Responsible Investors”, (November 2016), online: <https://www.stewardshipasia.com.sg/sites/default/files/Section%202%20-%20SSP%20(Full%20Document).pdf>.

[22] Stewardship Asia Publications, “Stewardship Principles for Family Businesses: Fostering Success, Significance and Sustainability”, (October 2018), online: <https://www.stewardshipasia.com.sg/sites/default/files/SSP-brochure-0913_approved%20for%20printing.pdf>.

[23] Jackie Horne, “Singapore ESG Financing: Dirty hands make green work?” (15 January 2019), Finance Asia, online: <https://www.financeasia.com/article/singapore-esg-financing-dirty-hands-make-green-work/449097> [Horne (2019)].

[24] Masagos (2019), supra note 15 at [24]-[27].

[25] See SGX, “Sustainability Reporting”, online: <https://www.sgx.com/regulation/sustainability-reporting>, for an explanation of the “comply or explain” regime put in place for sustainability reporting by companies as of June 2016.

[26] See Claudia Tan, “Investors to see more useful data in mandatory sustainability reports”, 5 December 2019, Business Times online: <https://www.businesstimes.com.sg/companies-markets/investors-to-see-more-useful-data-in-mandatory-sustainability-reports> [Tan (2019)].

[27] CG Watch 2018, supra note 9 at 323.

[28] CG Watch 2018, supra note 9.

[29] WBCSD, “Corporate and sustainability reporting trends in Japan” (10 February 2019), online: <https://www.wbcsd.org/Programs/Redefining-Value/External-Disclosure/The-Reporting-Exchange/Resources/Corporate-and-sustainability-reporting-trends-in-Japan> at 5.

[30] See Tan (2019), supra note 26.

[31] Ibid.

[32] See, Horne (2019), supra note 23.

[33]Eric Ng, “Why is Asia lukewarm to sustainable investing?” (14 October 2017), South China Morning Post, online: <https://www.scmp.com/business/companies/article/2115233/why-asia-lukewarm-sustainable-investing>.

[34] See link for a brief description of goals of the Global Reporting Initiative, see GRI, “About GRI”, online: <https://www.globalreporting.org/information/about-gri/Pages/default.aspx>.

[35] See generally Global Reporting Initiative, “2013 Global Conference on Sustainability and Reporting” (May 2013), online: <https://www.globalreporting.org/resourcelibrary/2013-GRI-Global-Conference-in-Review.pdf>.

[36] European Court of Auditors, “Reporting on sustainability: A stocktake of EU Institutions and Agencies” (June 2019), online <https://www.eca.europa.eu/Lists/ECADocuments/RCR_Reporting_on_sustainability/RCR_Reporting_on_sustainability_EN.pdf> at 35.

[37] Financial Reporting Council, “The UK Stewardship Code” at 5, (September 2012), online: <https://www.frc.org.uk/getattachment/d67933f9-ca38-4233-b603-3d24b2f62c5f/UK-Stewardship-Code-(September-2012).pdf>.

[38] See generally Lucian et al (2017), supra note 10. See also, Puchniak & Tang (2019), supra note 13, “Abstract”.

[39] Puchniak & Tang (2019), supra note 13 at 5.

[40] Ibid at 6.

[41] Ibid at 9.

[42] Ibid at 20.

[43] Ibid at 20.

[44] Ibid at 21.

[45] Ibid at 21-22.

[46] Ibid at 22.

[47] Ibid at 25.

[48] Ibid at 26.

[49] Ibid.

[50] Ibid at 15.

[51] CG Watch 2018, supra note 9 at 323.

[52] See Temasek, “Temasek Review 2019”, online: <https://www.temasekreview.com.sg/overview/from-our-chairman.html>.

[53] Supra note 22 at 6-9.

[54] Puchniak & Tang (2019), supra note 13 at 29, see also supra note 22 at 6.

[55] Ibid. Although it is apposite to note they the principle does not go into detail on how best to effect its goals.

[56] Puchniak & Tang (2019), supra note 13 at 31.

[57] Philip Kunz, “Family businesses need to move on sustainability or be left behind” (19 February 2020), The Business Times, online: <https://www.businesstimes.com.sg/hub-projects/whos-who-in-private-banking-feb-2020/family-businesses-need-to-move-on-sustainability>.

[58] Dionysia Katelouzou & Alice Klettner, “Sustainable Finance and Stewardship: Unlocking Stewardship's Sustainability Potential” (April 17, 2020) European Corporate Governance Institute – Law Working Paper No. 521/2020, online: <https://ssrn.com/abstract=3578447> at 24.

[59] Puchniak & Tang (2019), supra note 13 at 5.

[60] Franklin Templeton, “ESG Study: How Institutional Investors Embrace Responsible Investing” (16 January 2020), Beyond Bulls & Bears, online: <https://global.beyondbullsandbears.com/2020/01/16/esg-study-how-institutional-investors-embrace-responsible-investing/>.

Justice in its Fullest Orb: The Evolving Relationship Between Procedure and Substantive Law (II/II)

The PDF version of this article can be found here.

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Justice in its fullest orb: the evolving relationship between procedure and substantive law (ii/ii)

lim toh han*

I.                    Introduction

This two-part article considers how various High Court and Court of Appeal cases from 2001 to 2020 show that procedure has been made coequal with substantive law, and how this shift to coequality has occurred in two stages:

(a)    From resolving the tension between procedure and substantive law as separate conceptions of justice (“to resolve this tension”, in the words of Andrew Phang JC, as his Honour then was[1]) – discussed in Part I;

(b)   To balancing procedure and substantive law as integrated aspects of the orb of justice (“to integrate … justice”, in Andrew Phang JC’s words[2]) – discussed in Part II (this Part).

II.                 “To integrate justice”

More recent cases have adopted a conceptually different approach. Procedure and substantive law are not conflicting concepts in a tension to be resolved, but harmonious aspects of the orb of justice to be integrated. The following propositions may be distilled from the cases:

A.  The Balance of Justice

First, the court will weigh the procedural and substantive aspects of the case to locate the balance of justice. This judicial discretion is guided, not by rules, but by the following principles:

1.      Procedural Merits

One, procedural merits are not about the technical procedural rights of parties, but the procedural conduct of parties and the spirit of procedural rules. In United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [UOB],[3] Andrew Phang JC dismissed an application to stay winding-up proceedings, pending an appeal against Lai Kew Chai J’s dismissal of an application for a scheme of arrangement. The substantive merits clearly favoured the respondent.[4] The procedural merits also favoured the respondent; the applicant’s long string of procedural applications was merely “another device … to stave off what appeared … inevitabl[e]”,[5] the respondent had endured “continued and unjustified delay”, and the applicant could still sue after winding-up (albeit by its liquidator).[6] The court was unimpressed by the applicant’s plea for “procedural justice”,[7] which were really technical procedural rights. Subsequently, in Liberty Sky Investments Ltd v Aesthetic Medical Partners Pte Ltd,[8] a claim for fraudulent misrepresentation, Andrew Phang JA rejected the representee’s argument that the trial court had erroneously refused rescission as the representor had not pled any bars to rescission (as was the representor’s onus to). Not only was the representee’s argument “rather arid and technical”; it was “antithetical to the very spirit of the rules of pleading”, because in this (somewhat unusual) case, it was the representee (rather than the representor) who had exclusive knowledge of the facts underlying potential bars to rescission.[9] Furthermore, the representee had knowledge of the representor’s arguments on potential bars to rescission, and had even written a letter to the trial court rebutting those arguments.[10]

Two, procedural merits may need to be balanced between the parties. Such balancing was evident in Lea Tool and Moulding Industries Pte Ltd v CGU International Insurance plc [Lea Tools],^[11] where neither party’s procedural conduct was satisfactory (leading the court to dismiss the application initially),[12] though the balance tipped in the plaintiff’s favour (since the court allowed the application only on further arguments).[13]

Three, procedural merits may need to be balanced between the parties and the public. In the administration of justice, the public interest weighs more heavily than the parties’ interests. In Alliance Management SA v Pendleton Lane P [Alliance],[14] the High Court struck out the defence of a party which deliberately disregarded court orders regarding evidence. This was not to punish but to prevent injustice (whether to the other party in the proceedings, or to other litigants generally, with their demands on the court’s limited resources),[15] because irrespective of the possibility of a fair trial, total disregard of court rules or orders amounts to abuse of process.[16]

Four, the adequacy of compensation by costs is a significant, but not determinative, factor. In Eller, Urs v Cheong Kiat Wah,[17] the High Court made a bifurcation order even though the plaintiff only effectively requested bifurcation in closing submissions[18] (rather than before the trial commenced). Any prejudice to the defendant was “readily compensated by costs” as it was “very slight” (at best), because first, a bifurcation order would almost certainly have been granted if the plaintiff had applied for bifurcation timeously,[19] and second, the defendant had not called expert witnesses to rebut the plaintiff’s submissions on quantum[20] (and spent any money or effort doing so). By contrast, in Alliance,[21] the High Court struck out the disobedient party’s defence to liability (though it was allowed to take part on the question of quantum).[22] This reflects the principle that, while adjudication will ordinarily not be denied if costs adequately compensate the aggrieved party, it will be denied if demanded by the public interest on balance (as this case demanded).[23]

2.      Substantive Merits

Five, in weighing substantive merits, the court may need to form a view of the substantive case:

(a)    If liability and remedies have been tried, the court already has a final view of the substantive merits. For example, in Lee Chee Wei v Tan Hor Peow Victor [Lee Chee Wei],[24] where a non-bifurcated trial[25] had taken place, the Court of Appeal could form the view that an order for assessment of damages in lieu of specific performance (which the trial judge had refused to make[26]) was appropriate.[27]

(b)   If not, the court may need to form a provisional view of the substantive merits:

(i)             It may be clear where the substantive justice lies. For example, in UOB,[28] even though the principal petition was still being heard,[29] the “long string of procedural applications”[30] made it clear where the substantive justice lay.[31]

(ii)           If not, the court will likely not require proof on a balance of probabilities. For example, in Lea Tools,[32] the court considered it sufficient that there were triable issues (as summary judgment had been refused[33]).

(c)    Nonetheless, a provisional view may be impossible or unnecessary where evidence is deliberately made unavailable (eg in K Solutions Pte Ltd v National University of Singapore^[34] and Alliance[35]).

Six, the claim amount is also a factor. In Lee Chee Wei,[36] the Court of Appeal ordered damages to be assessed, despite the plaintiff’s failure to plead for damages “to be assessed” and to adduce evidence on damages.[37] While the latter “le[ft] much to be desired”,[38] the court seemed moved by “the princely consideration of $4.5m”, which was “anything but small change”.[39] (The former was not prejudicial, as the words “to be assessed” were “superfluous”.[40]) By contrast, in Edmund Tie & Co (SEA) Pte Ltd v Savills Residential Pte Ltd [Edmund Tie],[41] the High Court did not allow the plaintiff, who had pleaded for a particular amount of damages without the words “or such sums as the court deems fit”, to claim a different amount of damages. The court emphasised that “the amount involved is only $13,385.70, at best, or just $6,255”.[42] (The court also emphasised that the plaintiff made no attempt to rectify its inadequately pleaded case.[43])

3.      Fact Sensitivity

Seven, the exercise is fact-sensitive. The opposite outcomes in Lee Chee Wei[44] and Edmund Tie,[45] despite apparently similar facts, show that “previous decisions [are] no more than guides”.[46]

4.      No Procedure-Substance Dichotomy

Eight, the procedural and substantive aspects need not be distinguished as such in every case. While often convenient, the procedure-substance dichotomy sometimes obscures the true principle: the court balances, not procedure on the one hand and substance on the other hand, but all procedural and substantive aspects of the case in a manner inadequately described by a two-handed metaphor. For example, in Sun Jin Engineering Pte Ltd v Hwang Jae Woo,[47] the Court of Appeal allowed a late application for stay of proceedings based on various factors: the applicant’s lateness was unintentional, the application was not without merit, and the application did not pertain to a notice of appeal.[48] Under the classical approach, these factors must be classified as procedural or substantive before a tension arises. One might argue all the factors are procedural; another might argue that the application’s merits are a substantive aspect of procedural justice. But under the integrated approach, such a fruitless inquiry is unnecessary.

B.  The Importance of Procedure

Second, procedure remains an important aspect of the orb of justice.

Courts constantly enjoin litigants to observe procedural discipline. But the Court of Appeal dramatically enjoined judges to do the same in AXM v AXO,[49] where it considered whether an interim maintenance order could be retrospectively lowered. While substantive justice was not in issue, Andrew Phang JA’s concern was the procedural pathway to the substantive outcome.[50] As a matter of statutory interpretation, an interim maintenance order could not be retrospectively overridden[51] or varied by a final maintenance order.[52] Inherent power was inapt.[53] Instead, a final maintenance order should be (prospectively) made based on retrospective considerations.[54] His Honour concluded that “on the facts at hand … a substantively just and fair result can be achieved in accordance with [procedure]”.[55]

The message is clear: procedure is not just an aspect of the orb of justice that occasionally recedes out of sight as the orb rotates. Even without tensions to resolve, the task of integrating justice remains at hand, for procedural discipline is also justice.

C.  The Place of Ethics

Third, ethics must be an important aspect of the orb of justice. Apart from its fundamental importance to a noble and honourable profession,[56] ethics also affects the administration of justice.

Lock Han Chng Jonathan v Goh Jessiline[57] was a dispute over merely $60.35 that reached the Court of Appeal. The Court of Appeal ordered the plaintiff’s solicitor not to tax his solicitor-and-client costs before disciplinary investigations concluded.[58] Lam Hwa Engineering & Trading Pte Ltd v Yang Qiang[59] was not only a dispute over merely $1,208 that reached the Court of Appeal, but also an appeal with “absolutely no merit” (the defendant’s solicitor quoted a 17^th-century Lord Coke commentary and a 19^th-century case on a 21^st-century Rules of Court issue, which was both irrelevant[60] and erroneous[61]). The Court of Appeal ordered the defendant’s solicitor’s law firm to bear the plaintiff’s costs on an indemnity basis.[62]

These decisions evince the court’s readiness to use procedural mechanisms to address ethical considerations. Indeed, in these cases, costs struck an optimum balance between binding a principal to their agent’s acts and imposing liability on the actual wrongdoer. However, where costs do not adequately compensate (eg where land is involved), a more difficult balance may need to be found between the procedural, substantive and ethical merits of the case.

D.  Limitations

Finally, the orb of justice need not be slavishly applied in well-developed areas of civil procedure. For example, setting aside irregular default judgments is already governed by established Mercurine[63] principles, which embody the orb principle at a less abstract level. An analogy[64] is the Spandeck[65] test in negligence, which is in theory universal, but in practice applied only in novel situations.[66]

III.              Conclusion

Where will the orb of justice next turn? The history of physics provides an instructive parallel. For millennia, space (with its three dimensions) and time were considered separate concepts. Only by Albert Einstein were they unified as four dimensions of the same thing – spacetime.[67] Hermann Minkowski, his ex-teacher, famously hailed thus: “Henceforth, space by itself, and time by itself, are doomed to fade away into mere shadows, and only a kind of union of the two shall [be feasible].”[68] This was hyperbolic, for today, physics remains divided into two branches: classical physics, which separates space and time and is sufficient for most situations, and modern physics, which unifies spacetime and is necessary only for extreme conditions.

Similarly, well-developed areas of civil procedure are governed by established principles. Even in the less-developed areas of civil procedure, most cases can be resolved using the classical approach. Only in the most difficult cases does the integrated approach come vividly to the fore, and “justice in its fullest orb … shine forth”.[69]

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*LLB (First Class Honours) (NUS), LLM (Melb) (w.e.f. 26 July 2020). A version of this article was submitted as a mid-term assignment for the NUS Law module LL4413 Civil Justice and Procedure. I would like to thank Professor Jeffrey Pinsler, SC (Geoffrey Bartholomew Professor, NUS Law) for his kind and helpful comments. All errors and views expressed in this article remain my own.

[1] United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [2005] 2 SLR(R) 425, [2005] SGHC 50 at [9] [emphasis removed].

[2] Ibid.

[3] [2005] 2 SLR(R) 425, [2005] SGHC 50 [UOB].

[4] Ibid at [16]. I use “applicant” and “respondent” to refer to the applicant and respondent in this stay application (rather than the respondent and applicant, respectively, in the principal winding-up petition).

[5] Ibid at [17].

[6] Ibid at [41] [emphasis removed].

[7] Ibid at [14] [emphasis removed].

[8] [2020] 1 SLR 606, [2020] SGCA 7.

[9] Ibid at [16] [emphasis removed].

[10] Ibid at [15].

[11] [2000] 3 SLR(R) 745, [2000] SGHC 241 [Lea Tools]. “Lea Tool” and “Lea Tools” were used interchangeably by the court.

[12] Ibid at [17].

[13] Ibid at [18], [22].

[14] [2008] 4 SLR(R) 1, [2008] SGHC 76 [Alliance].

[15] Ibid at [9].

[16] Ibid at [13].

[17] [2020] SGHC 106.

[18] Ibid at [137].

[19] Ibid at [142].

[20] Ibid at [143].

[21] Alliance, supra note 14.

[22] Ibid at [45].

[23] Ibid at [6]–[7].

[24] [2007] 3 SLR(R) 537, [2007] SGCA 22 [Lee Chee Wei].

[25] Ibid at [64].

[26] Ibid at [57].

[27] Ibid at [80].

[28] UOB, supra note 3.

[29] Ibid at [10].

[30] Ibid at [15] [emphasis removed].

[31] Ibid at [16].

[32] Lea Tools, supra note 11.

[33] Ibid at [3], [21].

[34] [2009] 4 SLR(R) 254, [2009] SGHC 143.

[35] Alliance, supra note 14.

[36] Lee Chee Wei, supra note 24.

[37] Ibid at [62], [72], [80].

[38] Ibid.

[39] Ibid at [65].

[40] Ibid at [62].

[41] [2018] 5 SLR 349, [2018] SGHC 84 [Edmund Tie].

[42] Ibid at [8].

[43] Ibid at [11].

[44] Lee Chee Wei, supra note 24.

[45] Edmund Tie, supra note 41.

[46] Sun Jin Engineering Pte Ltd v Hwang Jae Woo [2011] 2 SLR 196, [2011] SGCA 4 at [30].

[47] [2011] 2 SLR 196, [2011] SGCA 4.

[48] Ibid at [45].

[49] [2014] 2 SLR 705, [2014] SGCA 13.

[50] Ibid at [36].

[51] Ibid at [19]–[20].

[52] Ibid at [29].

[53] Ibid at [23].

[54] See ibid at [29]–[30], [35]–[37].

[55] Ibid at [30].

[56] See Legal Profession (Professional Conduct) Rules 2015 (S 706/2015), r 7(1), Principle (a).

[57] [2008] 2 SLR(R) 455, [2007] SGCA 56.

[58] Ibid at [47].

[59] [2014] 2 SLR 191, [2014] SGCA 3.

[60] Ibid at [24].

[61] Ibid at [25].

[62] Ibid at [42]–[43].

[63] Mercurine Pte Ltd v Canberra Development Pte Ltd [2008] 4 SLR(R) 907, [2008] SGCA 38.

[64] In AXM v AXO [2014] 2 SLR 705, [2014] SGCA 13 at [23], Andrew Phang JA noted parallels between procedural law and negligence law, such as the applicability of the floodgates argument.

[65] Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100, [2007] SGCA 37.

[66] See ibid at [73].

[67] Albert Einstein, “On the Electrodynamics of Moving Bodies” (1905) 322:10 Annalen der Physik 891, set out two postulates of special relativity (the principle of relativity and the principle of invariant light speed). A consequence of the postulates was that space and time were inseparable. Subsequently, Hermann Minkowski, “The Union of Space and Time” (Address delivered at the 80th Assembly of German Natural Scientists and Physicians, 21 September 1908) in Milič Čapek, ed, The Concepts of Space and Time: Their Structure and Their Development (Dordrecht: D Reidel Publishing Co, 1976) 339, developed a mathematical model of special relativity that unified space and time (although, to be precise, it treated the dimension of time differently from the three dimensions of space). Eventually, Minkowski’s model was used by Albert Einstein, “The Foundation of the General Theory of Relativity” (1916) 49:7 Annalen der Physik 769, to develop general relativity.

[68] Hermann Minkowski, “The Union of Space and Time” (Address delivered at the 80th Assembly of German Natural Scientists and Physicians, 21 September 1908) in Milič Čapek, ed, The Concepts of Space and Time: Their Structure and Their Development (Dordrecht: D Reidel Publishing Co, 1976) 339 at 339.

[69] UOB, supra note 3 at [9].

Justice in its Fullest Orb: The Evolving Relationship Between Procedure and Substantive Law (I/II)

The PDF version of this article can be found here.

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justice in its fullest orb: the evolving relationship between procedure and substantive law (i/II)

lim toh han*

I.                    Introduction

Common-law procedure has come a long way since England’s royal courts of justice were established in the 12^th century. For centuries, procedure was the law; the common law was called “a law of procedure” with “whatever substantive law … hidden … in its ‘interstices’”.[1]

Following the 19^th-century Judicature Acts,[2] procedure was made subservient to substantive law. Sir Richard Collins MR (as his Lordship then was) memorably described procedure as a “handmaid” (a servant of a household) rather than a “mistress” (a controller of a household)[3]:

Although … a Court cannot conduct its business without a code of procedure … the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.[4]

Since this century’s turn, procedure has been made coequal with substantive law. VK Rajah JA (as his Honour then was) described procedure as the servant, not of substantive law, but of the “overriding objective” of “even handed justice”:

The rules of court practice and procedure exist to provide a convenient framework to facilitate dispute resolution and to serve the ultimate and overriding objective of justice. Such an objective must never be eclipsed by blind or pretended fealty to rules of procedure. On the other hand, a pragmatic approach governed by justice as its overarching aim should not be viewed as a charter to ignore procedural requirements. In the ultimate analysis, each case involving procedural lapses or mishaps must be assessed in its proper factual matrix and calibrated by reference to the paramount rationale of dispensing even handed justice.[5]

More dramatically, Andrew Phang JC (as his Honour then was) described procedure and substantive law as two facets of one “orb” of justice:

The quest for justice … entails a continuous need to balance the procedural with the substantive. More than that, it is a continuous attempt to ensure that both are integrated, as far as that is humanly possible. Both interact with each other. One cannot survive without the other. There must, therefore, be – as far as is possible – a fair and just procedure that leads to a fair and just result. This is not merely abstract theorising. It is the very basis of what the courts do – and ought to do. When in doubt, the courts would do well to keep these bedrock principles in mind …

It is true, however, that in the sphere of practical reality, there is often a tension between the need for procedural justice on the one hand and substantive justice on the other. The task of the court is to attempt … to resolve this tension. There is a further task: it is to actually attempt, simultaneously, to integrate these two conceptions of justice in order that justice in its fullest orb may shine forth.[6]

Building on Professor Jeffrey Pinsler, SC and Cavinder Bull, SC’s seminal work,[7] which covered cases from 2005 to 2010,[8] this two-part article examines various High Court and Court of Appeal cases from 2001 to 2020, most of which are expressed in terms of the orb of justice or even-handed justice. It considers how these cases show that procedure has been made coequal with substantive law, and how this shift to coequality has occurred in two stages:

(a)    From resolving the tension between procedure and substantive law as separate conceptions of justice (“to resolve this tension”, in Andrew Phang JC’s words[9]) – discussed in Part I (this Part);

(b)   To balancing procedure and substantive law as integrated aspects of the orb of justice (“to integrate … justice”, in Andrew Phang JC’s words[10]) – discussed in Part II.

II.                 “To resolve this tension”

Classically (at least following the Judicature Acts[11]), the common law has been bifurcated between procedure and substantive law, perhaps in line with 19^th-century English lawyers’ tendency to classify the world into binary sets. This sets up a tension which the cases have resolved in several ways:

(a)    For a long time, procedure was subservient to substantive law – discussed in section II(A).

(b)   Recently, procedure has become more dominant, whether:

(i)             In protection of substantive law – discussed in section II(B); or

(ii)           In collaboration with substantive law – discussed in section II(C)

(c)    Fundamentally, procedure is the very means by which substantive law is effectuated – discussed in section II(D).

A.      Procedure Yields to Substantive Law

First, procedure yields to substantive law in the interest of justice, though as an equal “spouse” rather than a subordinate “handmaid” shoved aside by substantive law.

Perhaps the pioneering case in this shift to coequality is Lea Tool and Moulding Industries Pte Ltd v CGU International Insurance plc,[12] where the High Court set aside a judgment in default of compliance with an unless order. Substantive justice favoured setting aside the default judgment: the claim was “substantial” (slightly under $1.5m) and there were triable issues (summary judgment had been refused).[13] The balance of procedural justice was less clear: on the one hand, the application to set aside the default judgment was nearly three years late; on the other hand, the applicant’s non-compliance with the unless order was “minor”, and the respondent’s failure to highlight the potential irregularity to the registrar (when the respondent should have) contributed to the irregularity of the registrar’s default judgment.[14] Ultimately, the court held that the applicant “should not be deprived of the benefit of an insurance cover merely because of a minor [procedural] irregularity”,[15] as “procedural laws are ultimately handmaidens to help us achieve the ultimate and only objective of achieving justice”.[16]

The decision, while expressed in the language of subservient “handmaidens”, foreshadows procedure’s new role as a coequal “spouse” on closer inspection. Initially, the court was not inclined to set aside the default judgment.[17] After further arguments,[18] the court was persuaded that the balance of procedural justice tipped in favour of setting aside the default judgment.[19] Thus, procedure was not violently shoved aside by, but gently yielded to, substantive law in the interest of justice.

B.      Procedure Protects Substantive Law

Second, procedure protects substantive law’s integrity.

In K Solutions Pte Ltd v National University of Singapore,[20] the High Court struck out the claim of a party who deliberately destroyed documents. The court held that the possibility of a fair trial depended, not only on the availability of documents, but also the reasons for any unavailability of documents:[21]

(a)    If the destruction was deliberate, and:

(i)             If important documents were unavailable, striking out would be appropriate.[22]

(ii)           If important documents remained available, striking out would not necessarily be appropriate, depending on the availability of other documents.[23]

(b)   If the destruction was reckless or negligent, striking out would depend on a variety of considerations.[24]

(c)    If the destruction was innocent, even if important documents were unavailable, striking out “must be rare”.[25]

This intricate classification reveals a nuanced approach towards protecting substantive law’s integrity. A fair trial is impossible if important documents are deliberately destroyed. But a fair trial remains possible even if important documents are innocently destroyed, or unimportant documents are deliberately destroyed. Indeed, striking out may even occasion substantive injustice, as “… perfect justice … would actually defeat justice”.[26]

C.     Procedure Collaborates with Substantive Law

Third, procedure collaborates with substantive law to achieve the policy of the law. While policy has long been derided as a “very unruly horse”,[27] the twin whips of procedure and substantive law can be helpful in taming this workhorse.[28]

In Greenline-Onyx Envirotech Phils, Inc v Otto Systems Singapore Pte Ltd [Greenline],[29] the Court of Appeal admitted into evidence a letter which was both a without-prejudice communication and an acknowledgement of debt. It held that the letter fell within all three solutions in Bradford & Bingley plc v Rashid [Bradford][30] to the question of the admissibility of without-prejudice acknowledgements, without endorsing either the majority’s, Lord Hoffmann’s, or Lord Hope’s solution.[31]

Greenline remains to be explained in terms of which Bradford solution(s) apply in Singapore (even if, strictly speaking, the discussion on the admissibility of without-prejudice acknowledgements were obiter, as the ratio turned on the waiver of privilege[32]), for three reasons. First, Greenline was applied without explanation by the Court of Appeal in Fairview Developments Pte Ltd v Ong & Ong Pte Ltd,[33] in admitting a without-prejudice acknowledgement.[34] Second, Greenline was applied at some length by the High Court in Cytec Industries Pte Ltd v APP Chemicals International (Mau) Ltd [Cytec],[35] which preferred the majority’s solution, and noted that Lord Hoffmann’s solution was subsequently disapproved by the UK House of Lords (while ultimately leaving the question to the Court of Appeal).[36] Third, Bradford’s solutions should be reconsidered in Singapore, where both the without-prejudice rule and the acknowledgement rule are statutory rules embodying Parliament’s intent.[37]

Procedure’s collaboration with substantive law can partly explain which Bradford solution(s) should apply in Singapore. The basis for this collaboration is the policy of encouraging settlements shared by the Limitation Act[38] and the Evidence Act;[39] the High Court in Cytec[40] observed that both the without-prejudice rule and the acknowledgement rule have the policy of encouraging settlements.[41] A recent exercise in identifying a policy shared by two statutes is UKM v Attorney-General [UKM],[42] where Sundaresh Menon CJ held that the Adoption of Children Act’s[43] specific provisions on child adoption were “supplemented by” the Guardianship of Infants Act’s general provision for the paramountcy of the child’s welfare,[44] so that the policy of the paramountcy of the child’s welfare was shared by both statutes.[45]

Collaboration favours the majority’s solution – that the without-prejudice rule does not apply to apparently open communications designed only to discuss the repayment of an admitted liability, rather than to negotiate the existence and extent of a disputed liability[46] (which was preferred by the High Court in Cytec[47]). The majority’s solution is not unlike Lord Hope’s solution – that the without-prejudice rule does not apply to “clear admissions or statements of fact”, which do “not form part of the offer to compromise”.[48] Both solutions achieve the policy shared by the without-prejudice rule and the acknowledgement rule – to keep claims out of court.[49] Otherwise, to exclude without-prejudice acknowledgements, even if they clearly admit the existence or extent of liability, not only does nothing to achieve the (other) policy of the without-prejudice rule – to encourage parties to reach agreement[50] (presumably, because agreement has already been reached); but also undermines the policy of the acknowledgement rule – to keep claims out of court (because creditors will be forced to litigate, if the limitation clock cannot be reset by acknowledgement).[51] Indeed, both solutions not only represent collaboration between procedure and substantive law, but would also give full effect to the Singapore Parliament’s intent.

Collaboration is inconsistent with Lord Hoffmann’s solution – that the without-prejudice rule does not apply to acknowledgements,[52] unless parties agree that anything said in negotiations cannot be used as acknowledgements[53] (which was subsequently disapproved by the UK House of Lords, as noted by the High Court in Cytec[54]). Lord Hoffmann’s solution effectively emasculates the without-prejudice rule in the context of acknowledgements (since, as his Lordship acknowledges, parties in this context are unlikely to agree that anything said in negotiations cannot be used as acknowledgements, as creditors will realise that debtors are trying to run down the limitation clock[55]). Indeed, Lord Hoffmann’s solution not only represents the triumph of procedure over substantive law (albeit a largely hollow triumph since, as his Lordship acknowledges, “[q]uestions of evidence to prove the debt will arise later”[56]); it is also questionable in Singapore, where the without-prejudice rule is a statutory rule embodying Parliament’s intent, rather than a “general public policy” as in England and Wales.[57]

Furthermore, collaboration is inconsistent with Lord Hoffmann’s justification for his solution – that a statement of acknowledgement would be used, not as evidence of an acknowledgement (ie an admission), but as the acknowledgement itself.[58] Lord Hoffmann’s justification was subsequently disapproved by the UK House of Lords[59] because his Lordship’s distinction between admissions and acknowledgements was difficult to draw.[60] Perhaps, this is because Lord Hoffmann’s distinction undermines the collaboration between procedure and substantive law; Lord Hope (taking another bite at the without-prejudice cherry) opined that “this is not a situation in which arguments that resort to procedural … technicalities are appropriate”.[61]

D.    Procedure Effectuates Substantive Law

Finally, procedure effectuates substantive law. As Lord Penzance in Kendall v Hamilton[62] said, procedure is “the machinery of the law”.[63]

This perhaps obvious point is vividly illustrated in Family Food Court v Seah Boon Lock,[64] where the Court of Appeal considered an agent’s claim for substantial damages in contract for loss suffered by its (identifiable) undisclosed principal. The substantive law was controversial, with “conflicting arguments” whether to award the agent substantial damages for its loss.[65] Fortunately, procedure had a “simple … solution” for achieving substantive justice: awarding the principal substantial damages for its loss by joining it as a party, whether on parties’ application, of the court’s own motion or by the court’s inherent power.[66] If the principal decides not to join, it cannot re-open the case,[67] presumably for abuse of process.

It seems ironic that, in trying to achieve substantive justice, substantive law tied itself up in knots. Instead, procedure cut the Gordian knot and “obviate[d] all the difficulties [vis-à-vis recovery of damages]”, awarding the principal its “full measure of damages”[68] and achieving the full extent of substantive justice. But it is unsurprising, for procedure has secreted substantive law since the 12^th century. Substantive law’s recent growth spurt (at least since the Judicature Acts[69]) may obscure this. But when substantive law inadvertently throws in a spanner, procedure still restarts the law’s machinery.

III.              Conclusion

Part II discusses how more recent cases have adopted a conceptually different approach, where procedure and substantive law are not conflicting concepts in a tension to be resolved, but harmonious aspects of the orb of justice to be integrated.

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*LLB (First Class Honours) (NUS), LLM (Melb) (w.e.f. 26 July 2020). A version of this article was submitted as a mid-term assignment for the NUS Law module LL4413 Civil Justice and Procedure. I would like to thank Professor Jeffrey Pinsler, SC (Geoffrey Bartholomew Professor, NUS Law) for his kind and helpful comments. All errors and views expressed in this article remain my own.

[1] H Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law, 5th ed (Oxford: OUP, 2014) at 242.

[2] Supreme Court of Judicature Act, 1873 (UK), 36 & 37 Vict, c 66; Supreme Court of Judicature Act, 1875 (UK), 38 & 39 Vict, c 77.

[3] See Jeffrey Pinsler & Cavinder Bull, “Procedure’s multi-faceted relationship with substantive law: Not a ‘mistress’; nor a ‘handmaid’” in Yeo Tiong Min, Hans Tjio & Tang Hang Wu, gen eds, SAL Conference 2011: Developments in Singapore Law between 2006 and 2010 – Trends and Perspectives (Singapore: SAL Publishing, 2011) [Pinsler & Bull (2011)] at [2].

[4] Re Arbitration between Coles and Ravenshear [1907] 1 KB 1 at 4.

[5] Lee Chee Wei v Tan Hor Peow Victor [2007] 3 SLR(R) 537, [2007] SGCA 22 at [82].

[6] United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [2005] 2 SLR(R) 425, [2005] SGHC 50 [UOB] at [8]–[9] [emphasis in original].

[7] Pinsler & Bull (2011), supra note 3. See also Jeffrey Pinsler, “The Ideals in the Proposed Rules of Court” (2019) 31 SAcLJ 987 at section II.

[8] Ibid at [2].

[9] UOB, supra note 6, at [9] [emphasis removed].

[10] Ibid.

[11] Supra note 2.

[12] [2000] 3 SLR(R) 745, [2000] SGHC 241.

[13] Ibid at [3], [21].

[14] Ibid at [17], [21].

[15] Ibid at [21].

[16] Ibid at [16].

[17] Ibid at [17].

[18] Ibid at [18].

[19] Ibid at [22].

[20] [2009] 4 SLR(R) 254, [2009] SGHC 143.

[21] Ibid at [129].

[22] Ibid at [127].

[23] Ibid at [126].

[24] Ibid at [130]; as noted by the SGHC, such circumstances are “infinitely varied”.

[25] Ibid.

[26] Breezeway Overseas Ltd v UBS AG [2012] 4 SLR 1035, [2012] SGHC 170 at [20], citing Nichia Corp v Argos Ltd [2007] EWCA Civ 741 at [51].

[27] Ngiam Kong Seng v Lim Chiew Hock [2008] 3 SLR(R) 674, [2008] SGCA 23 at [40], citing Richardson v Mellish (1824) 2 Bing 229 at 252, 130 ER 294 at 252, 303.

[28] See Ngiam Kong Seng v Lim Chiew Hock [2008] 3 SLR(R) 674, [2008] SGCA 23 at [40], citing Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591 at 606.

[29] [2007] 3 SLR(R) 40, [2007] SGCA 25 [Greenline].

[30] [2006] 1 WLR 2066 [Bradford].

[31] Greenline, supra note 29 at [17]–[19].

[32] Ibid at [22].

[33] [2014] 2 SLR 318, [2014] SGCA 5 at [93].

[34] See ibid at [93].

[35] [2009] 4 SLR(R) 769, [2009] SGHC 177 [Cytec].

[36] Ibid at [36].

[37] See Evidence Act (Cap 97, 1997 Rev Ed Sing), s 23(1); Limitation Act (Cap 163, 1996 Rev Ed Sing), s 26(2).

[38] Cap 163, 1996 Rev Ed Sing.

[39] Cap 97, 1997 Rev Ed Sing.

[40] Cytec, supra note 35.

[41] Ibid at [15], [27]–[28].

[42] [2019] 3 SLR 874, [2018] SGHCF 18.

[43] Cap 4, 2012 Rev Ed Sing.

[44] Cap 122, 1985 Rev Ed Sing, s 3.

[45] UKM, supra note 42 at [148].

[46] Bradford, supra note 30 at [73].

[47] Cytec, supra note 35 at [36].

[48] Bradford, supra note 30 at [25].

[49] Ibid at [34], [74].

[50] Ibid at [74].

[51] Ibid at [3], [38], [74].

[52] Ibid at [16].

[53] Ibid at [16], [18].

[54] Cytec, supra note 35 at [36].

[55] Bradford, supra note 30 at [18].

[56] Ibid at [16]. See KLD Residential CC v Empire Earth Investments 17 (Pty) Ltd (1135/2016) [2017] ZASCA 98, [2017] 3 All SA 739 at [39], where the Supreme Court of Appeal of South Africa, applying Bradford, held, “Where acknowledgements of liability … would interrupt the running of prescription, such acknowledgements should be admissible, even if made without prejudice during settlement negotiations, but solely for the purpose of interrupting prescription. … The admission remains protected in so far as proving the existence and the quantum of the debt is concerned.”

[57] See Bradford, supra note 30 at [16].

[58] Ibid at [16].

[59] See Ofulue v Bossert [2009] 2 WLR 749.

[60] Ibid at [43], [51], [95].

[61] Ibid at [7].

[62] (1879) 4 App Cas 504.

[63] Ibid at 525.

[64] [2008] 4 SLR(R) 272, [2008] SGCA 31.

[65] Ibid at [60], [62].

[66] Ibid at [63]. In Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258, [2013] SGCA 28, VK Rajah JA (as his Honour then was) observed that “inherent power” was not synonymous with “inherent jurisdiction” (at [33]), given the distinction between jurisdiction (the authority to hear and determine a dispute) and power (the capacity to give effect to the determination of a dispute) (at [31]).

[67] Ibid at [65]–[67].

[68] Ibid at [63].

[69] Supra note 2.

Compliance with Cybersecurity and Privacy Laws in the Healthcare Sector in Singapore

A PDF version of the article can be found here.

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COMPLIANCE WITH CYBERSECURITY AND PRIVACY LAWS IN THE HEALTHCARE SECTOR IN SINGAPORE

Harleen Sethi*

I.                    introductioN

Healthcare is a highly regulated industry, even in the cybersecurity and privacy law domain. Applicable laws, rules and regulations in this sector require routine risk assessments. The information pertaining to the healthcare data of patients which is collected and processed by healthcare authorities should adhere to compliance mechanisms and standards as laid down by regulatory authorities. It is essential for such data controllers and intermediaries to demonstrate compliance with such laws to mitigate the risks at hand.

II.                 LAWS, RULES AND REGULATIONS TO BE CONSIDERED BY THE HEALTHCARE AUTHORITIES IN ADDRESSING CYBERSECURITY, PRIVACY/DATA PROTECTION ISSUES

1.      Singapore Computer Misuse Act[1]

This is the main piece of legislation in Singapore that overlooks criminal activities that take place in the online environment. Section 3 of the CMA establishes the principle offence under the Act, that is the “Unauthorised access” offence[2] and section 4 of the CMA is an aggravated computer hacking offence.[3] Sections 5, 6, 7, 8 of the CMA further regulate offences like unauthorised modification, unauthorised obstruction, unauthorised disclosure of access codes. The important point to note here is that in 2017, a new set of provisions were enacted under the CMA to criminalise activities associated with the use of personal information obtained in the breach of the other provisions under the CMA. Section 8A deals with the issue of identity theft in Singapore.[4] Another essential provision to note is Section 9 of the CMA which was adopted from the US Computer Fraud and Abuse Act[5] and introduced the concept of “protected computers”. Section 9(2)(d) of the CMA means to include “the protection of public safety including systems related to essential emergency services such as police, civil defence and medical services” under the ambit of the definition of “protected computers”.[6]

2.      Singapore Cybersecurity Act[7]

The Cybersecurity Act is an omnibus piece of legislation which applies to all type of information and computer systems. In Singapore, which is known to be a smart city and technologically advanced in its operations, private corporations and government verticals rely heavily on the internet for provision and delivery of a wide range of services, including essential services as specified under the First Schedule of the Cybersecurity Act[8]. This increase in the reliance on the technological and digital network stimulated environment has its pros but at the same time also exacerbates vulnerability to cybersecurity attacks which result in disruptions to such essential services, causing not only moral and economic damage, but also personal harm and loss of life. In this regard, the Cybersecurity Agency [CSA] which was set up in 2015 oversees and coordinates all aspects of cybersecurity for Singapore, ensuring cybersecurity strategy and crisis management across all critical information infrastructure [CII] sectors[9] (which includes healthcare). The Cybersecurity Act imposes duties on CII owners to ensure cybersecurity of their respective CIIs and advocates the creation of a framework for sharing cybersecurity information with CSA and for complying with the provisions of the Cybersecurity Act. Under the Cybersecurity Act, there are certain obligations which need to be complied with by CII owners. A brief summary of the same is provided below in order to highlight the important provisions which need to be taken into consideration by the healthcare sector:

(a) Section 10[10] states that the identified owner/operator of the CII has to furnish specific information; even if such information is confidential and commercially sensitive,[11] pertaining to the CII infrastructure including its set up, design, security, operation, configuration.

(b) Section 11[12] gives authority and enables the Commissioner of the CSA to regulate by prescribing standards of performance and codes of practice to the CII owners. These may not be binding in nature but have to be complied with as non-compliance attracts criminal penalties.[13] The Personal Data Protection Act 2012[14] has issued advisory guidelines on key concepts which set out factors to assess the reasonableness of security arrangements.[15]

(c) Section 13 imposes an obligation on the CII owner to report to the CSA Commissioner any legal or beneficial change in the ownership/share of ownership in the CII.[16]

(d) Section 14(1)-(3) impose obligations on the CII owners in respect of the reporting of a cybersecurity incident within a prescribed period.[17] For this purpose, it is pertinent that the CII owners have in place a mechanism for detecting such cybersecurity threats and incidents.[18] It is for these reasons that hospitals need to put a risk management and compliance framework in place which facilitates the timely detection of such cybersecurity risks and threats, as non-compliance to these sections attracts criminal penalties.[19]

(e) Section 15[20] and section 16[21] impose additional obligations on the CII owners to conduct regular cybersecurity audits and risk assessments of their CII infrastructure by a third party approved auditor. In addition to this an audit or risk assessment may be ordered by the Commissioner in certain circumstances of non-compliance, misleading/inaccurate/incomplete provision of information by the CII[22] or where such assessments have not been carried out satisfactorily.[23]

III.              privacy and personal data protection obligations

Singapore follows a hybrid approach with its PDPA as it is an extensive privacy legislation supplemented by certain sector-specific legislation.[24] The PDPA constitutes a comprehensive set of provisions that provides for baseline standards and requirements for the protection of personal information. All private organisations are subject to the data protection obligations under the PDPA.[25] The statutory definition of “personal data”[26] is stated under section 2(1) of the PDPA. The purpose of the PDPA as per Section 3 is to govern the collection, use and disclosure of personal data by organisations in a manner that balances the interests between the right of individuals to protect their personal data and the requirement of the organisation to collect, use and disclose personal data for purposes a reasonable person would consider appropriate in the business circumstances.[27] It is pertinent to note that hospitals possess a fair amount of personal information pertaining to the identification and healthcare of their patients. This information is highly sensitive in nature and as per the Cybersecurity Act, comes under the ambit of CII sector.[28] Section 11 of the PDPA imposes and enforces that it is the primary duty of the organisation to comply with the PDPA.[29] It is important to note here that it is because of the sensitive and highly critical nature of the information in the healthcare sector that Singapore has proposed a Healthcare Services Bill in 2018, following the Singhealth data breach incident (as discussed below).[30] Further, sections 24[31] and 25[32] of the PDPA highlight steps to be taken by the organisation for the protection and retention of personal data.

IV.              impact of such rules and regulations in the healthcare sector

The PDPC issued advisory guidelines for the healthcare sector in 2014, which were revisited and revised in 2017.[33] These guidelines and the PDPA endorse a set of basic principles[34] which governs the rules, laws and legislations under this domain that should be complied with by organisation in the process of collection, use and dissemination of personal information. These principles are also enforced by international rules and regulations, for instance the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data[35], the EU GDPR[36], Health Insurance Portability and Accountability Act [HIPAA] Privacy Rule[37] and HIPAA Security Rule[38].

The PDPA and the PDPC Healthcare Guidelines[39] provide rules and guidelines to be followed by healthcare institutions which engage third parties like data intermediaries to process personal data and also impose obligations on such institutions to oversee data processing.[40] In these unprecedented times of COVID-19, where countries around the world including Singapore are launching apps for contact tracing of affected individuals in order to flatten the curve, these rules and regulations will play an extensive role in ensuring that privacy is maintained. A repeat of the Singhealth breach would not be desirable at the moment. Given that the contact tracing app “TraceTogether” works by exchanging short distance Bluetooth signals between phones to detect other participating app users in close proximity, privacy risks are certainly elevated.[41]

A recent pertinent shift can be seen in the minds of the law and policy makers towards taking steps to strengthen legislation governing cybersecurity, privacy and data protection laws. It is submitted that the reasons for such shift can be attributed to the increase in technological advancements, the growing importance of the nature of personal information, and the absence of robust laws, rules and regulations to deal with such pertinent issues. In light of these circumstances, it is not just sufficient to execute the laws and rules in this area, but to effectively comply with and practice the same within the realities and limits of sound business practices. In view of the above, the healthcare sector needs to shift towards a proportionate compliance and risk management approach in cybersecurity, privacy and data protection laws in order to successfully maintain privacy standards and safeguard themselves from increased security and data privacy concerns.

One of the worst breaches of personal data in Singapore’s history took place when between May 2015-July 2018, the personal information of 1.5 million patients and records of outpatient dispensed medicines for 160,000 of those patients were stolen, malicious accessed and copied. This information included national registration identity card numbers, gender of patients, date of birth, age which is regarded as personal information under the PDPA. This cyberattack was effected on the Singapore Health Services Pte Ltd [SingHealth] patient database system.[42]

As reiterated above, the health sector handles one of the most critical and sensitive sets of personal information. The patients have a right to expect and ensure security and protection of such data provided to the hospitals and the government in confidentiality.[43] The role of the government in collecting and processing the information pertaining to the medical history and travel whereabouts, inter alia, in the wake of this pandemic so as to better trace and facilitate contact tracing to identify the affected individuals and confirmed cases of COVID-19, is also to be taken into account. In view of these practices, which are no doubt critical in COVID-19 times, it is pertinent to be aware of the potential cybersecurity and privacy threats which need to be guarded against.

Once we are at a stage of flattening the curve and even whilst collecting such personal information ‘privacy by design’ plays an extremely essential role right through the process of inflow to the outflow of such data. Data organisations and intermediaries should prepare a checklist of the obligations to be complied with under the Cybersecurity Act and the PDPA with regard to the privacy and security of such data in order to set up a compliance framework in place to ensure all these rules, laws and regulations are complied with.

Due diligence tests need to be conducted on the third-party vendors, especially data intermediaries (specifically in cases of contact tracing via apps) which need to be engaged in order to ensure that the data intermediaries also comply with the obligations set forth on them under the PDPA and PDPC Guidelines. The data organisations should also ensure that their policies, controls and standard operating procedures are implemented and updated to log the physical/electronic movement of records and maintain an audit trail of record transactions to ensure protected safe keeping and secured access to such records.

V.                 concluding remarks

As the SingHealth data breach case has cautioned, it is not only important to have policies and procedures in place, it is equally significant to timely and efficiently execute such procedures. The TraceTogether app which has been developed by the Government Technology Agency of Singapore in collaboration with the Ministry of Health does not collect or use location data.[44] It also does not have access to the contacts in the user’s phone. It primarily uses Bluetooth data to establish a contact and all such data which is collected is stored locally on the user’s phone and is encrypted.[45] It is only when an individual is confirmed to have contracted COVID-19 that the government will request the user to upload the data to the government in order to facilitate contact tracing of close contacts.[46] An additional privacy practice which is followed by the app pertains to the storage of such data wherein if a user does not come into close contact with a confirmed COVID-19 case, data which is older than 21 days will be automatically deleted.[47] It is also essential to note here that in order to flatten the curve, artificial intelligence in health care may be able to supplement manual contact tracing but cannot replace the same. It cannot pick up on nuances like false positives and negatives, which health care workers can do.[48] The apps do not account for instances beyond the algorithm activated, for instance certain factors beyond proximity like environment and activity. There are lives at stake and false positives and negatives may actually result in life and death consequences. This is why technology should be used as an aid to the human-fronted process in combating this pandemic, rather than a replacement, whilst maintaining all privacy and security standards in the healthcare sector.

Note: At the time of publication, the Personal Data Protection (Amendment) Bill 2020 had not been passed.

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* LLM (IP and Technology Laws) (NUS), Class of 2020.

[1] (Cap 50A, 2007 Rev Ed) [CMA].

[2] CMA, supra note 1, s 3(1) states that “any person who knowingly causes a computer to perform any function for the purpose of securing access without authority to any program or data held in any computer shall be guilty of an offence”.

[3] Ibid, s 4(1) states that “Any person who causes a computer to perform any function for the purpose of securing access to any program or data held in any computer with intent to commit an offence to which this section applies shall be guilty of an offence.”

[4] Ibid; s 8A(1) provides that “A person shall be guilty of an offence if the person, knowing or having reason to believe that any personal information about another person (being an individual) was obtained by an act done in contravention of section 3, 4, 5 or 6… .”

[5] 18 U.S.C. § 1030.

[6] CMA, supra note 1, s 9(2)(d).

[7] Cybersecurity Act 2018 (Act 9 of 2018) [Cybersecurity Act].

[8] Cybersecurity Act, supra note 7, s 2(1) defines “essential service as any service essential to the national security, defence, foreign relations, economy, public health, public safety or public order of Singapore, and specified in the First Schedule”.

[9] Ibid; s 2(1) defines CII as “critical information infrastructure means a computer or a computer system in respect of which a designation under section 7(1) is in effect”.

[10] Ibid; s 10.

[11] Cybersecurity (Critical Information Infrastructure) Regulations 2018, s 4(2)(a).

[12] Ibid; s 11 establishes the Codes of practice and standards of performance.

[13] Ibid; s 12 establishes the power of Commissioner to issue written directions in the event of non-compliance.

[14] Personal Data Protection Act 2012 (No. 26 of 2012) [PDPA].

[15] Personal Data Protection Commission Singapore, “Advisory Guidelines on Key Concepts in the Personal Data Protection Act (revised 9 October 2019)”, online: PDPC <https://www.pdpc.gov.sg/-/media/Files/PDPC/PDF-Files/Advisory-Guidelines/AG-on-Key-Concepts/Advisory-Guidelines-on-Key-Concepts-in-the-PDPA-9-Oct-2019.pdf> [PDPC Guidelines].

[16] Cybersecurity Act, supra note 7, s 13.

[17] Ibid; s 14(1) states “the owner of a critical information infrastructure must notify the Commissioner of the occurrence of any of the following in the prescribed form and manner, within the prescribed period after becoming aware of such occurrence”.

[18] Ibid; s 14(2) states “the owner of a critical information infrastructure must establish such mechanisms and processes for the purposes of detecting cybersecurity threats and incidents in respect of the critical information infrastructure, as set out in any applicable code of practice”.

[19] Ibid; s 14(3) states “any owner of a critical information infrastructure who, without reasonable excuse, fails to comply with subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 2 years or to both”.

[20] Ibid; s 15(1) “The owner of a critical information infrastructure must:

(a)at least once every 2 years (or at such higher frequency as may be directed by the Commissioner in any particular case), starting from the date of the notice issued under section 7, cause an audit of the compliance of the critical information infrastructure with this Act and the applicable codes of practice and standards of performance, to be carried out by an auditor approved or appointed by the Commissioner; and

(b)at least once a year, starting from the date of the notice issued under section 7, conduct a cybersecurity risk assessment of the critical information infrastructure in the prescribed form and manner”.

[21] Ibid; s 16 states “the Commissioner may conduct cybersecurity exercises for the purpose of testing the state of readiness of owners of different critical information infrastructure in responding to significant cybersecurity incidents”.

[22] Ibid; s 15(4).

[23] Ibid; s 15(5).

[24] Examples of certain sector-specific privacy legislation in Singapore: Banking Act (Cap 19, 2008 Rev Ed); Protection from Harassment Act (Cap 256A, 2015 Rev Ed); Infectious Diseases Act (Cap 137, Rev Ed 2003).

[25] Warren B Chik and Pang Keep Ying Joey, “The Meaning and Scope of Personal Data under the Singapore Personal Data Protection Act” (2014) 26 SAcLJ 354.

[26] Personal Data under the PDPA is defined as “data, whether true or not, about an individual who can be identified from that data; or from that data and other information to which the organisation has or is likely to have access”.

[27] PDPC Guidelines, supra note 15, 31.

[28] Cybersecurity Act, supra note 7, s 7(1) interprets Critical Information Infrastructure [CII] sectors to refer to such sectors that are responsible for the continuous delivery of essential services in Singapore and healthcare is one of the sectors under CII.

[29] PDPA, supra note 14, s 11(1) states that the organisation must be the one to consider whether their practices are what a reasonable person would consider appropriate under the circumstances and s 11(2) states that an organisation is responsible for personal data in its possession or under its control.

[30] Public Consultation on the Draft Healthcare Services (HCS) Bill, Ministry of Health (5 January 2018- 15 February 2018) online: Reach <https://www.reach.gov.sg/participate/public-consultation/ministry-of-health/corporate-communications/public-consultation-on-the-draft-healthcare-services-bill>.

[31] PDPA, supra note 14, s 24.

[32] Ibid, s 25.

[33] Personal Data Protection Commission Singapore, “Advisory Guidelines for the Healthcare Sector

(revised 28 March 2017)”, online: PDPC <https://www.pdpc.gov.sg/-/media/Files/PDPC/PDF-Files/Sector-Specific-Advisory/advisoryguidelinesforthehealthcaresector28mar2017.pdf> [PDPC Healthcare Guidelines].

[34] PDPC Healthcare Guidelines, supra note 33; These basic principles include consent, use, retention, collection, transfer and purpose limitations; notification, access, security, accountability, correction, data quality, accuracy, transfer and openness obligations to be complied with by the organisations with such personal information of individuals.

[35] OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (2013 Rev Ed), online: OECD <https://www.oecd.org/sti/ieconomy/oecd_privacy_framework.pdf>.

[36] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.

[37] United States Department of Health and Human Services OCR Privacy brief, “Summary of the HIPAA Privacy Rule”, online: HHS <https://www.hhs.gov/sites/default/files/privacysummary.pdf>.

[38] United States Department of Health and Human Services OCR Privacy brief, “Security 101 for Covered Entities”, online: HHS <https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/administrative/securityrule/security101.pdf>.

[39] PDPC Healthcare Guidelines, supra note 33, 15.

[40] PDPA, supra note 14, s 4(3) states “the organisation that engages the data intermediary would still have the same obligations under the PDPA in respect of personal data processed on its behalf as if the personal data were processed by the organisation itself”.

[41] Dean Koh, “Singapore government launches new app for contact tracing to combat spread of COVID-19” Mobi Health News (20 March 2020), online: Mobi Health News <https://www.mobihealthnews.com/news/asia-pacific/singapore-government-launches-new-app-contact-tracing-combat-spread-covid-19> [Mobi Health News].

[42] PDPC Commissioner, “Singapore Health Services Pte. Ltd. & Ors’ [2019] SGPDPC 3”, online: PDPC <https://www.singaporelawwatch.sg/Portals/0/Docs/Judgments/2019/[2019]%20SGPDPC%203.pdf> [PDPC Singhealth].

[43] PDPC Singhealth, supra note 42, 17.

[44] Mobi Health News, supra note 41.

[45] Ibid.

[46] Ibid.

[47] Ibid.

[48] Alfred Ng, “Tech isn’t the solution to COVID-19” CNet Health and Wellness (13 April 2020), online: CNet <https://www.cnet.com/health/director-behind-singapores-contact-tracing-app-says-tech-isnt-the-solution-to-covid-19/>.

Re-examining Prosecutorial Discretion in the Context of s 300(a) Murder and s 299 Culpable Homicide

A PDF version of this article can be found here.

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Re-examining Prosecutorial Discretion In The Context Of s 300(a) Murder and s 299 Culpable Homicide

Nicholas Khong

I. Introduction

Article 35(8) of the Constitution of the Republic of Singapore[1] confers on the Attorney-General the “power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence”. In other words, the Attorney-General has control over whether a suspect should be charged, and which charge should be brought against a suspect. Such prosecutorial discretion is required for a fair and effective criminal justice system.[2] The alternative, “automatic prosecution” of all suspected criminal offences, is untenable as it would likely harm the public interest and overwhelm our criminal justice system.

However, the Singapore Court of Appeal [SGCA] recognised in Chng Suan Tze v. Minister for Home Affairs[3] that unfettered discretion would be inconsistent with any conception of the rule of law, since all legal powers should have legal limits.[4] To this end, prosecutorial discretion should be re-examined in the context of murder under Section 300(a) of the Penal Code[5] [s 300(a)] and culpable homicide under the first limb of Section 299 of the Penal Code [s 299]. Specifically, prosecutorial discretion in this context should be premised on two additional mechanisms: an obligation to explain its decisions, as well as published, non-binding and specific guidelines.

II. Consequences of prosecutorial discretion in murder and culpable homicide

In Public Prosecutor v P Mageswaran and another appeal[6] [Mageswaran], the SGCA observed that s 300(a) and the first limb of s 299 have exactly the same elements, namely: (1) an intention to kill the victim; and (2) an act which caused the victim’s death.[7] It should be noted that an accused person could be charged under the first limb of s 299 if one or more of the Exceptions to s 300(a) are applicable. However, the prosecution may exercise their discretion to charge the accused person under s 299 even though none of the Exceptions to s 300 apply. This came to the fore in Mageswaran, where the accused was charged with an offence under the first limb of s 299, even though the accused did not have any partial defences open to him.[8]

Further, the SGCA has noted that the exercise of prosecutorial discretion has enhanced importance in such a context.[9] While a charge under the first limb of s 299 only attracts a term of imprisonment, a charge under s 300(a) attracts the mandatory death penalty. Hence, where an accused person’s act fulfils the essential elements of the above offences, whether he faces life imprisonment or death depends almost entirely on prosecutorial discretion.

III. An obligation to explain prosecutorial decisions in the context of murder AND CULPABLE HOMICIDE

Notably, in Mageswaran, the SGCA inferred that the prosecution had decided to charge the accused person under the first limb of s 299 because the mandatory death penalty was not warranted in that case, “having weighed all the relevant circumstances in the exercise of prosecutorial discretion”.[10] Following the case of Ramalingam Ravinthran v Attorney-General[11][Ramalingam], where the SGCA held that the prosecution is generally not required to give reasons for prosecutorial decisions,[12] the court in Mageswaran was entitled to make such an inference. However, the prosecution’s exact reasons for charging the accused person under s 299 in Mageswaran remain unknown , and it is argued that the prosecution should have an obligation to give reasons for its prosecutorial decisions in the present case where the life of an accused person depends almost entirely on the exercise of prosecutorial discretion.

On the surface, Mageswaran does not imply a need for this obligation, since the accused person was charged under s 299 rather than the relatively graver offence under s 300(a). However, this need becomes pertinent when the prosecution exercises their discretion in the converse situation. An accused person who is charged with s 300(a), and to whom the Exceptions to s 300 do not apply, would naturally question why the prosecution exercised their discretion differently in Mageswaran.

The Attorney-General’s Chambers (AGC) has raised two main arguments against any general obligation to explain prosecutorial decisions.[13] Unfortunately, these arguments are neither convincing nor satisfactory in the specific context of s 299 and s 300(a).

A.      Delayed prosecutions and undermined prosecutorial effectiveness?

Firstly, the AGC argues that an obligation to explain its prosecutorial decisions in every case would delay criminal proceedings and undermine prosecutorial effectiveness, as it would likely result in frequent challenges to the courts by dissatisfied parties.[14]

However, this obligation need not extend to every case, and an exception for cases where s 299 and s 300(a) are concerned can be made on the ground that prosecutorial discretion has enhanced importance here.[15] This would be a more principled approach as opposed to one that relies on public sentiments.[16] Such an approach would also accord with the Chief Justice Sundaresh Menon’s recent pronouncement in Han Fang Guan v Public Prosecutor[17], that “the liberty of individuals should not be dependent on discretionary powers when they may be dealt with in a principled way”.[18]

Further, frequent challenges to the courts can be justified by the fact that, if there was indeed a prosecutorial mistake, it is the accused person who suffers an irreversible and unjustified loss of life or liberty.[19] This would be consistent with Singapore’s gradual shift away from the crime control model of criminal justice by introducing further due process safeguards.[20]

B. Attorney-General’s ability to exercise prosecutorial discretion undermined?

Secondly, the AGC asserts that any obligation to explain its prosecutorial decisions “which runs counter to the judicial deference shown by the courts to the Attorney-General’s discretion would impair the performance of a core executive function designated in the Constitution”.[21]

However, it is unclear as to why such an obligation would necessarily impair the Attorney-General’s ability to “institute, conduct or discontinue”[22] proceedings for an offence. The AGC has occasionally explained their reasons for certain prosecutorial decisions, and their prosecutorial discretion does not appear to have been impaired in such instances.[23] Instead, explaining prosecutorial decisions appears to be complementary to the functions of the Attorney-General in this context. Such an obligation would provide clarity to accused persons who could potentially face the death penalty for their offences.

Further, greater transparency in the exercise of prosecutorial discretion, as opposed to an opaque blanket of secrecy, would bolster public trust and confidence in the AGC.

IV. Specific guidelines to promote transparency in decision making

Given that the life or death of an accused person hinges largely on prosecutorial discretion in this context, prosecutorial discretion should also be guided by published, non-binding and specific guidelines.[24] This would encourage greater scrutiny of prosecutorial decisions beyond the AGC and promote consistent decision-making by the prosecution.

Parliament can further preserve the flexibility of prosecutorial discretion and abate concerns about new defences arising from these guidelines by enacting the appropriate legislation; that is, legislation which provides that non-compliance with these guidelines does not give the accused a cause of action against the prosecution.[25]

While the AGC has argued that the publication of specific guidelines could lead to an increase in offending in areas where the prosecution might exercise restraint,[26] this is not a concern in the present context. An accused person who is guilty of an offence under the first limb of s 299 faces imprisonment for life or imprisonment for a term of up to twenty years.[27] This sentencing regime still poses a strong deterrent to potential offenders. Therefore, it is unlikely that there will be more offenders simply because the prosecutorial guidelines imply an imprisonment sentence of up to twenty years or for life, instead of the death penalty.

V. The court as a check and balance?

Notably, the AGC has made the implicit assertion that the court serves as a check and balance against the arbitrary exercise of prosecutorial discretion. This is because it is the court who ultimately determines the guilt of an accused person and the punishment that follows if the accused person is found guilty.[28]

However, this form of check and balance is significantly curtailed in the context of s 300(a) and the first limb of s 299. As the SGCA in Mageswaran stated, “any exercise of prosecutorial discretion would inevitably have an impact on the outcome and the eventual sentence”.[29]

It should be reiterated that the elements of the first limb of s 299 and s 300(a) are exactly the same, and it follows that where none of the Exceptions to s 300 apply, an accused person who fulfils the elements of the first limb of s 299 would also be able to fulfil the elements of s 300(a). Assuming that the accused person did indeed have an intention to kill, and performed an act which caused the victim’s death, it follows that the prosecution’s preferred charge is the crucial factor which draws the fork in the road between the mandatory death penalty and a term of imprisonment. This is especially so as the courts have evinced an unwillingness to question or interfere with the prosecution’s exercise of their discretion in such a context.[30] Therefore, where an accused person may be found guilty of both offences, it is the prosecution who effectively determines the sentence which follows the finding of guilt.

Further, the AGC’s reference to judicial review as a clear remedy for the unlawful or unconstitutional exercise of prosecutorial discretion is unsatisfactory.[31] Owing to the high office of the Attorney-General, a presumption of constitutionality applies to prosecutorial discretion.[32] This has the effect of placing the burden of proof on the accused to specifically produce prima facie evidence of (1) bad faith, or (2) a breach of his constitutional rights, for judicial review to be available.[33]

This is problematic, as the way in which this burden of proof can be discharged is uncertain and overly onerous on accused persons. In Ramalingam, the SGCA stated that the appellant in Teh Cheng Poh v Public Prosecutor[34], who was prosecuted for a capital offence, could “show prima facie impropriety [in the exercise of prosecutorial discretion] by producing evidence that another offender in similar circumstances had been prosecuted for a non-capital offence”.[35] This is broadly analogous to our present case since an accused person can be charged with either a capital offence under s 300(a) or a non-capital offence under the first limb of s 299. However, there are two problems associated with such an approach.

Firstly, the phrase “similar circumstances” is not precisely defined. How similar must the circumstances be for an accused person to use Mageswaran as evidence to discharge this burden of proof? [36]

Secondly, the phrase “had been prosecuted” suggests that similar circumstances must be based on past, and not merely hypothetical events.[37] Hence, the accused person’s ability to rebut the presumption hinges on the availability of available precedents, which may or may not exist, or which may be inaccessible to the accused person.

These problems significantly impair the accused person’s ability to discharge the burden of proof. It could be briefly suggested that these issues may potentially be resolved by shifting the burden to the prosecution, who can readily produce evidence of their decision-making process. However, this inquiry warrants a much deeper examination, and is not within the scope of the present article.

In sum, the court’s role as a check and balance against the arbitrary exercise of prosecutorial discretion appears to be significantly curtailed in the context of the first limb of s 299 and s 300(a). It follows that greater transparency and accountability in the exercise of prosecutorial discretion is particularly desirable in this context.

VI. Conclusion

Given the current sentencing regime that applies to the first limb of s 299 and s 300(a), the exercise of prosecutorial discretion in such a context is unjustifiably opaque. In view of the potential injustice that may be caused, one may even go so far as to say that the exercise of prosecutorial discretion in this specific context is dangerous. Therefore, it has been argued that an obligation to explain prosecutorial decisions, as well as the publication of non-binding and specific guidelines, would do much to ease these concerns.

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[1] 1999 Rev Ed Sing.

[2] Kumarlingam Amirthalingam, “Prosecutorial Discretion and Prosecution Guidelines” (2013) Sing JLS 50 at 57.

[3] [1988] SGCA 16; [1988] 2 SLR(R) 525.

[4] Chen Siyuan, “The Limits of Prosecutorial Discretion in Singapore: Past, Present and Future” (2013) 1 International Review of Law 1 at 11-12.

[5] Cap 224, 2008 Rev Ed Sing.

[6] [2019] SGCA 22; [2019] 1 SLR 1253.

[7] Supra note 6 at para 35.

[8] With respect, it is submitted that the SGCA in Mageswaran and the authors of Stanley Yeo, Neil Morgan & Chan Wing Cheong, Criminal Law in Malaysia and Singapore, 3rd Ed (Singapore: LexisNexis, 2018) may have wrongly cited Dewi Sukowati v Public Prosecutor [2017] SGCA 8 [Dewi Sukowati] as another instance of a scenario where the accused person was charged under the first limb of s 299 even though no partial defence was open to the accused. In Dewi Sukowati, both the SGHC’s and SGCA’s judgements noted at para 42 and para 14 respectively that Dr Kenneth Koh of the Institute of Mental Health was of the opinion that the accused person qualified for the partial defence of diminished responsibility under Exception 7 to s 300 of the Penal Code. This was the likely reason why the prosecution had charged the accused under the first limb of s 299 rather than under s 300(a) of the Penal Code. Nonetheless, such ambiguity could have been avoided if the prosecution had an obligation to explain its exercise of prosecutorial discretion in such a context.

[9] Supra note 6 at paras 34-37.

[10] Ibid at para 37.

[11] [2012] SGCA 2; [2012] 2 SLR 49.

[12] Ibid at paras 74-78.

[13] Attorney-General’s Chambers, “The Exercise of Prosecutorial Discretion” (January 2012), Attorney-General’s Chambers, online <https://www.agc.gov.sg/docs/default-source/newsroom-doucments/media-releases/2012/agcpressrelease200112-theexerciseofprosecutorialdiscretion.pdf>.

[14] Ibid at para 11.

[15] Supra note 6 at para 36.

[16] In their press statement on the exercise of prosecutorial discretion, supra note 14 at para 12, the AGC has stated that “where the reason for prosecuting or not prosecuting raises a question of importance for the public and disclosure would not impact the proper resolution of the case, the Attorney-General’s Chambers does consider providing at least brief reasons for its decision, so that confidence in the justice system may be maintained”. See for example Ng Huiwen, Death of Annie Ee: AGC explains why couple who abused her were not charged with murder (December 2017), online, <https://www.straitstimes.com/singapore/death-of-annie-ee-agc-explains-why-couple-who-abused-her-were-not-charged-with-murder>.

[17] [2020] SGCA 11.

[18] Ibid at para 117.

[19] Gary Kok Yew Chan, “Prosecutorial Discretion and the Legal Limits in Singapore” (2013) 25:1 SAcLJ. 15.

[20] Keith Jieren Thirumaran, “The Evolution Of The Singapore Criminal Justice Process” (2019) 31 SAcLJ. 1042. See also the SGCA’s recent ruling in Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] SGCA 25, where the court held that, in addition to the obligations established in Muhammad bin Kadar and another v Public Prosecutor [2011] SGCA 32, the prosecution also has the obligation to disclose the statements of material witnesses even if the said witness was not called by the prosecution to testify.

[21] Supra note 13 at para 10.

[22] Supra note 1.

[23] See for example: Ng Huiwen, “Death of Annie Ee: AGC explains why couple who abused her were not charged with murder” (December 2017), The Straits Times, online, <https://www.straitstimes.com/singapore/death-of-annie-ee-agc-explains-why-couple-who-abused-her-were-not-charged-with-murder>;Attorney-General’s Chambers, “PP v Joshua Robinson” (March 2017), Attorney-General’s Chambers, online <https://www.agc.gov.sg/docs/default-source/newsroom-doucments/media-releases/2017/agc-press-release-jr-8-mar-17bd1400354dcc63e28975ff00001533c2.pdf/>; and Amelia Teng, “NUS Peeping Tom given conditional warning due to high likelihood of rehabilitation: Police” (23 April 2019), The Straits Times, online: <https://www.straitstimes.com/singapore/courts-crime/student-in-nus-sexual-misconduct-case-given-conditional-warning-due-to-high>.

[24] The United States of America is one example of a jurisdiction which has adopted a similar approach to the publication of non-binding prosecutorial guidelines. See The United States Department of Justice, “Justice Manual”, online: <https://www.justice.gov/jm/justice-manual>.

[25] Supra note 4.

[26] Supra note 13 at para 9.

[27] See s 304 of the Penal Code (Cap 224, 2008 Rev Ed Sing). Further, an offender who is sentenced to imprisonment for life is also liable to caning, and an offender who is sentenced to term imprisonment is also liable to fine or to caning.

[28] Supra note 13 at para 13.

[29] Supra note 6 at para 37.

[30] See Ibid.

[31] Supra note 13 at para 14.

[32] Supra note 11 at para 44.

[33] Ibid at paras 70-72.

[34] [1979] 1 MLJ 50.

[35] Supra note 11 at para 26.

[36] Supra note 19 at para 42.

[37] Ibid.

The Unique Standard of Care for Doctors in Singapore – Part 1 of the HCK Series

The PDF version of this article can be found here.

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the unique standard of care for doctors in singapore – part 1 of the hck series

Keith Jieren Thirumaran*

I.                    Introduction

In the practice of medicine, a doctor’s job can be divided into 3 components: diagnosis, treatment, and advice.[1] Traditionally, the legal test for determining the standard of care that a doctor was expected to meet to avoid liability in negligence was the doctor-centric Bolam-Bolitho test which focuses on the doctor’s perspectives. While this test originally applied to medical advice in the UK[2] and Singapore[3], the position in the UK has since been changed by the Supreme Court in Montgomery v Lanarkshire Health Board [Montgomery][4] where a patient-centric approach similar to the Australian High Court’s approach in Rogers v Whitaker [Rogers][5] was taken. After considering these and other overseas cases[6], the Singapore Court of Appeal adopted a modified and unique test in the context of medical advice in the landmark decision of Hii Chii Kok v Ooi Peng Jin London Lucien [HCK][7].

In this two-part series of articles, the HCK test will be examined in detail with comparisons drawn with the tests of other jurisdictions. Part 1 of the HCK series begins by providing an overview of the HCK test followed by an analysis of various aspects of the test such as the balance that was struck in HCK, the seemingly additional test of relevancy, the types of information covered, the scenario where information is unknown, and the remaining ambiguities. Part 2 of the HCK series[8] will deal specifically with stage 3 of the HCK test relating to the situations where a doctor is justified in withholding information, otherwise known as the exceptions to a doctor’s duty of disclosure.

II.                 Overview of the Singapore Test

The HCK test formulated by the Singapore Court of Appeal is a three-stage test.

1.       First Stage

The first stage involves the patient’s identification of the information not provided and why it should be regarded as relevant and material.[9] The court held that a doctor must disclose information that would either “be relevant and material to a reasonable patient situated in the particular patient’s position”, or the doctor knows is important to the particular patient.[10]

The identification of the information not provided is necessary in order “to determine whether the doctor possessed that information at the material time” and therefore “whether the withholding of the information was justified”.[11] The underlying concern for this requirement “is to ensure that the scope of the dispute is clearly delineated” and that the process is fair to doctors.[12]

The court will take into account the personal circumstances of the patient to determine what “a reasonable person in the position of the patient in question would consider material”.[13] However, such information is only relevant “to the extent that the doctor knew or ought reasonably to have known of them.[14]

The materiality of the information is assessed from the patient’s perspective[15] and takes into account what the particular patient was “reasonably likely to have attached significance to” as well as what the doctor knew or should have known the particular patient would have attached significance to.[16] The analysis of relevancy and materiality of the information would be largely matters of “common sense” and would generally exclude “information that reasonable people would regard as immaterial or irrelevant”.[17] This analysis would also take into account information that is immaterial to the reasonable person in the patient’s position which the actual patient still found material for the patient’s own reasons, but would only require disclosure if “the doctor actually knew or had reason to believe that the particular information was relevant and material to the particular patient”.[18]

The court in HCK also went further than Montgomery[19] in terms of the types of information that could be considered material. The court held that it would not confine the information to material risks concerning the treatment and its alternatives[20] but would instead adopt the broad types of material information that were identified in the Canadian case of Dickson v Pinder[21]. These include: the doctor’s diagnosis of the patient’s condition, the prognosis of that condition with and without medical treatment, the nature of the proposed medical treatment, the risks associated with the proposed medical treatment, and alternatives to the proposed medical treatment as well as their advantages and risks.[22] The type of information reasonably material would depend on factors such as certainty, consequence, and context.[23]

2.       Second Stage

The second stage involves determining whether the doctor was in possession of the information identified as relevant and material.[24] Where the doctor was not in possession of the information, the case will no longer be assessed under the category of negligent advice, but instead be assessed as a negligent diagnosis or treatment case and therefore be subjected to the normal Bolam-Bolitho test.[25]

3.       Third Stage

The third stage involves an examination of the reasons why the doctor chose to withhold the information from the patient.[26] While an overview of the third stage is provided at this juncture, a detailed analysis of this stage can be found in Part 2 of the HCK series.[27]

The court would determine whether the “doctor was justified in withholding the information”.[28] However, whether the doctor was justified would not be measured by the Bolam-Bolitho test, even though it is informed by medical considerations.[29] After determining that the doctor’s reasons were justified, the court would then determine whether the doctor’s decision “was a sound judgment having regard to the standards of a reasonable and competent doctor”.[30] At this stage, expert medical evidence will have some significance because there is still “an element of professional judgment involved”.[31]

The court did not want to confine or restrict the situations that could be justifiable but held that courts would consider all the circumstances in determining whether the withholding of information was justified.[32] However, the court elaborated on 3 non-exhaustive categories of situations that would justify non-disclosure.[33]

The first situation allowing for the withholding of information is where the patient does not wish to know the information.[34] This is treated as a “factual question” on the existence and scope of a patient’s waiver of the information, and will not usually involve expert opinion.[35]

The second situation is where there is an emergency scenario, such as when there is a threat of death or serious harm to the patient, while the patient lacks decision-making capacity and there is no appropriate substitute decision-maker.[36] For this situation, the Bolam-Bolitho test will apply because medical expert opinion will be “crucial” in determining whether the urgency of the situation is such that seeking opportunities to provide information to the patient can be sacrificed.[37]

The third situation involves therapeutic privilege and applies where a doctor “reasonably believes that the very act of giving particular information would cause the patient serious physical or mental harm”.[38] For this situation, expert medical and psychological evidence will “be helpful or even crucial” to the court.[39] However, the Bolam-Bolitho test will not be applied because the focus is on whether the court is of the opinion that the patient would likely be harmed when informed of the material information.[40]

III.              ANALYSIS OF THE HCK TEST

It is clear that while the HCK test draws some inspiration from the Montgomery test, it also modifies and refines it in several aspects. This section will now explore the reasons and rationale for the approach taken in HCK as well as examine the unique aspects of the HCK test.

1.       The balance struck in HCK

In HCK, the court made a “carefully calibrated shift in the standard of care” that is required of doctors in the context of advice.[41] The result is that the new test in Singapore is a middle-ground between the patient-centric position in Montgomery as well as the doctor-centric position in Bolam-Bolitho. However, in relation to certain aspects that will be discussed below, the court in HCK has in fact gone further than the court in Montgomery towards patient centricity.

The key reason why this shift was needed, and was indeed made, was that there has been an increase in recognition for the “need to treat patient autonomy seriously” in the law.[42] This is a result of the developments within the medical profession as well as the rest of society which have shifted patient autonomy to a position of prime importance[43] in what has been a “seismic shift in medical ethics, and in societal attitudes towards the practice of medicine”[44].

This evolution in the nature of the patient-doctor relationship in Singapore is in light of the “level of education and access to knowledge” of ordinary people.[45] A patient, during the advice stage, is no longer a passive recipient of care but has become an “active interlocutor in whom ultimately rests the power to decide”.[46] This has resulted in a new generation of patients who have become much more informed about “medical matters, their choices and rights”.[47]

Furthermore, a patient has a right to decide and choose whether or not to undergo medical treatment.[48] Such decisions and choices are “ultimately the patient’s to make”, while a doctor’s function is simply to “empower and enable the patient to make that decision by giving him the relevant and material information”.[49] Lastly, a decision on what information patients should be given is only partially a medical science assessment, with the other part being an assessment of a patient’s personal concerns and priorities.[50]

However, a balance needs to be struck between patient autonomy and beneficence (i.e. the doctor’s provision of benefits to a patient through the fair weighing of benefits against risks and costs).[51] This balance necessitates another balance to be struck between the doctor’s perspective and the patient’s perspective.[52] A “proper balance”[53] must take into account the fact that a doctor is able to be objective and dispassionate in making judgment calls as to the significance of information while a patient, on the other hand, might be emotional and place inappropriate emphasis on risks.[54]

Another reason that necessitated the “carefully calibrated shift” is that rising healthcare costs as well as defensive medicine are “real concerns” that the courts need to bear in mind when they are approaching the question of legal reform.[55] The court in HCK noted that this was not a sufficient reason to “shut the door to reform entirely” and was a minor issue when only a partial reform is attempted.[56] Nonetheless, it is suggested that this may well have been one of the decisive reasons why the court chose to adapt Montgomery to better fit the Singapore context, especially given the way healthcare expenditure is funded in Singapore.[57]

2.       “Relevant and Material”

The first unique feature of the HCK test is the usage of the phrase “relevant and material” information.[58] Therefore, there appears to be a test of both relevancy and materiality in the HCK test. This is as opposed to the use of “material” risks in cases such as Rogers[59] and Montgomery[60], which imply a test of materiality alone. The UK courts have in fact stressed that the test in Montgomery is materiality and not relevance.[61]

As noted by the UK courts, the tests of relevance and materiality might conceivably be different[62], and the author agrees that these concepts are indeed distinguishable. Nonetheless, a difficulty arises in the conceptualisation of information that is material but not relevant to a patient. If the information is material to a patient, it is highly likely that it would also be relevant to that patient.[63] On the other hand, relevant information is not necessarily material.[64] Thus, the test of materiality is a subset of the broader test of relevancy. As such, whether the addition of the requirement of relevancy has any effect on the scope of information that needs to be disclosed remains to be seen in future Singapore cases.

As there was no specified reason in the Singapore judgment as to why the word “relevant” was added in HCK, any discussion on this would be entirely speculative. However, it is entirely plausible that the court intended to limit the range of possible information that a patient would be able to claim for by adding the additional requirement of relevancy. This is likely to be because of the expanded scope of disclosure under the HCK test that is not confined to risks and alternatives. Therefore, it is submitted that the intended effect of including the word “relevant” into the test was to help guard against the practice of defensive medicine by doctors in Singapore by limiting the scope of information that needs to be disclosed.

It is respectfully submitted that defensive medicine[65] is the practice by doctors of adopting “what they think is legally safe”, despite their beliefs as to what is best for the patient.[66] The court in HCK stated that the “concerns in defensive medicine pertain mainly to diagnosis and treatment.”[67] However, in the context of advice, it is possible for defensive practices to exist. It is respectfully submitted that this could take the form of disclosing more information than is necessary in the doctor’s attempt to be legally safe, despite the fact that such information may not be necessary or may even entail unforeseen harmful effects.

The disclosure of excessive information may result in the wastage of medical time and resources and risks frightening a patient, thus leading them to reach an unbalanced decision.[68] Defensive medicine also results in higher medical costs and a wastage of precious medical resources.[69] Other foreseeable detrimental effects of defensive medicine may include higher insurance costs[70], compromising of the quality of medical care[71], denial of access to medical care and attention, and a tendency towards unnecessary or sub-optimal medical decisions.[72] The possibility of such defensive practices is exacerbated under the HCK test because information is not confined to material risks concerning the treatment and its alternatives[73] but instead involves the broad types of material information that were identified in the Canadian case of Dickson v Pinder[74].

It is important to note that in a recent Singapore case, defensive medicine was defined differently as encompassing “the situation where a doctor takes a certain course of action in order to avoid legal liability rather than to secure the patient’s best interests”.[75] In that case, the court stated that overwhelming patients with a deluge of information on unlikely risks is not defensive medicine.[76] The reason given for this is because “giving too much information will not avoid legal liability” because bombarding the patient with information leaves the patient more confused and less able to make a proper decision, thus leading to legal liability for failing to obtain informed consent.[77] This position, unlike the definition adopted above[78], is not dependent on a doctor’s subjective belief of what will allow him to avoid legal liability.

While there is merit in framing defensive medicine as excluding situations where legal liability is not avoided, with respect, this definition is under-inclusive and does not fully capture the potential range of behaviour that is defensive in nature. In essence, if a doctor is misguided and therefore fails in his attempt to avoid legal liability, that does not make the attempted defensive actions any less defensive in nature. In any event, misguided attempts at defensive action, whether or not considered to be “defensive medicine”, would still have the same detrimental effects as defensive medicine itself. Indeed, the Ministry of Health in Singapore has highlighted that there is a very real possibility of over-disclosure of risks being taken as attempted defensive action.[79] Therefore, it is respectfully submitted that it would be helpful to recognise excessive disclosure of information as “defensive medicine” so that its risk can be properly accounted for.

Lastly, the court in HCK, although providing a definition and test for materiality, did not do the same for relevancy. As such, there is a lack of a clear distinction between the two requirements of relevancy and materiality. Therefore, despite any intended limiting effect of the introduction of a relevancy requirement, the practical effect of this addition is likely to be negligible. This is because the test is conjunctive, hence the information must have been both relevant and material to a reasonable patient in the patient’s position. Thus, the additional requirement will likely have no effect as doctors will not be sure whether a material piece of information is irrelevant and therefore disclose it nonetheless.[80] As such, any intended additional guidance or reassurance is negated and further clarification by the courts is necessary in order to delineate any additional considerations that doctors should be mindful of.

3.       Types of Information

The second unique feature of the HCK test is that the information that needs to be disclosed is wider than the information defined in Montgomery.

As aforementioned, the court in HCK expanded the information that could be considered material to include the broad types of material information that were identified in the Canadian case of Dickson v Pinder.[81] Furthermore, this list is non-exhaustive and the court left the door open for other types of information. The court made reference to the idea of certainty[82] which could potentially lead to more information being relevant where for example there is uncertainty present (such as information on alternative diagnoses).[83]

It is, however, noted that the case of Montgomery was concerned with a patient alleging that she was not informed about the risk of shoulder dystocia in her case.[84] The case of HCK, on the other hand, concerned a patient who alleged that the advice on a Gallium scan and its limitations, the importance of the morphological scans, and peculiarity of the pancreas in relation to functional scans were insufficient to allow him to make an informed decision.[85] As a result, while the court in Montgomery was solely concerned with risks, the court in HCK had a wider range of information that it had to contend with. As a result, forms of information other than risks would not have been the focus of the Supreme court in Montgomery.

Therefore, it is possible that future UK decisions might not limit material information to risks of treatment and alternatives and expand them in a similar way to HCK. In the UK courts, it was in fact noted in obiter that although Montgomery involved the provision of information in order to determine whether to undergo a particular treatment, it could potentially be expanded to cover all aspects of advice.[86] As such, in the future, this may no longer be a distinguishing factor of the HCK test and may be applicable in other jurisdictions.

4.       Unknown Information

The third unique feature of the HCK test is that where a doctor is not in possession of the information that is relevant and material, the case will no longer be assessed under the category of negligent advice but instead be assessed as a negligent diagnosis or treatment case and therefore be subjected to the normal Bolam-Bolitho test.[87] The cases of Montgomery and Rogers are silent on this aspect. This scenario involves a doctor who lacks the information through his own fault and not scenarios where the risk was not even comprehended by medical knowledge at the time of the alleged breach.[88]

While the end-result of this re-characterisation is correct in principle, the classification of such a case may not be as straightforward as it seems.

For cases where a doctor is unaware of information due to a failure to conduct certain procedures on the patient, that would rightly fit under the rubric of diagnosis. Diagnosis involves establishing the medical needs of a patient and includes the obtaining, consideration, and analysis of information gathered followed by the formation of provisional conclusions on the best way to proceed.[89] An analogous situation to this surfaced in a subsequent recent case.[90]

However, where a doctor is unaware of information due to a lack of factual or technical knowledge of a particular risk, such a situation is not as clear-cut.

Firstly, treatment involves the carrying out of the solution chosen by the patient as well as the care the patient receives.[91] If a patient fails to receive information on a risk of a specific procedure, the treatment of the patient by the doctor is not itself defective. The issue is instead whether the patient would have chosen the same solution had the patient known of the information.

Secondly, diagnosis involves establishing the medical needs of a patient and determining the best way to proceed.[92] Here, an argument can be made that the doctor might have been negligent in not ascertaining the best way to proceed properly.

Thirdly, advice involves the presentation of information to the patient and includes recommendations as well as other material information.[93] While it is agreed that “one cannot give what one does not have” [94], this does not necessarily stop the lack of information from being a negligent advice scenario. It is correct that a doctor without the material information cannot provide that information to the patient. However, this also means that the doctor has failed to advise the patient properly as a result of that lack of information, which is arguably still a failure in advising.

Nonetheless, the outcome of the re-characterisation is that the Bolam-Bolitho test is applied to cases where the doctor lacks the information that is considered material which is correct in principle. This is because a failure of a doctor to be aware of medical information due to his own ignorance is essentially a failure of a medical nature and therefore recourse should be sought from the Bolam-Bolitho test. It is submitted that an alternative and clearer conceptual approach would be to analyse it plainly from the perspective of whether the doctor “was negligent in not having such information”[95] without the need for re-characterising the case as diagnosis or treatment.

5.       Remaining Ambiguities

While the current framework provided by the HCK test has many positive features, there remains some ambiguity and uncertainty that permeates through the test. There are two prominent ambiguities that have yet to be discussed and are important to highlight at this juncture.

The first prominent ambiguity that surfaces from the HCK test relates to the level of flexibility that has been injected into the analysis as compared to Montgomery. In the Montgomery test, once the conditions specified in the definition of materiality[96] are fulfilled, the information is considered material. This is because the definition uses the phrase “is whether”, which results in the conditions being phrased as the test of materiality itself.[97]

On the other hand, the definition of materiality in the HCK test[98] uses the phrase “having regard to”. This means that the HCK test does not specify automatic conditions in order for the information to be considered material but provides factors that are taken into account in determining materiality.[99] This approach of treating the conditions as factors results in fluidity in determining what information is material, thus leading to uncertainty.

This fluidity from treating the conditions as factors, coupled with “common sense” playing a more powerful role[100], and further exacerbated by the fact that the “tests” adopted from Montgomery are in itself inherently difficult for doctors to determine materiality in practice, results in a problematic level of uncertainty. The combined effect of these would mean that a doctor will have great difficulty in practice in determining whether a particular piece of information is material or not. This would result in defensive practices such as disclosing more information than is necessary in the doctor’s attempt to be legally safe, accompanied by the attendant detrimental effects[101]. The Ministry of Health has highlighted that doctors are indeed having difficulty in applying the HCK test.[102]

The second prominent ambiguity relates to the classification of a doctor’s actions in the three aspects of medical care (diagnosis, treatment and advice). In HCK, the Court of Appeal stated that the three aspects of medical care are not monolithic and cannot always be demarcated clearly.[103] The court then noted that the different aspects of medical care will often be in play concurrently.[104] These aspects “emerge and submerge repeatedly” at different points in the doctor-patient relationship.[105] The court acknowledged therefore that the application of differing standards of assessment is not a straightforward task.[106]

While the effect of this makes it difficult for a doctor to determine which standard of care will apply to any given situation, it is submitted that the uncertainty created by this ambiguity will have negligible practical effect on medical advice. This is because defensive practices would result in doctors choosing to apply the more demanding standard of care to the situation and this would indeed be the HCK test, a favourable consequence.

IV.              CONCLUSION

In conclusion, patient-centricity has come a long way from the days of Sidaway. In some respects, the HCK test has gone further than the Montgomery test in favour of patients but in other aspects it has been more conservative.

The test has many complexities and nuances that strike a delicate balance between the Montgomery test and the Bolam-Bolitho test. The HCK test as a whole highlights a shift in emphasis towards patient autonomy. The three-stage inquiry separates the various components of the test to ensure that analysis is done in a systematic way. The scope of information that needs to be disclosed appears to be expanded in HCK. However, this is balanced against an additional test of relevancy, a test which needs further clarification. Defensive medicine is also mitigated to some extent by the requirement that a doctor does not indiscriminately bombard the patient with information like an information dump.[107] These adaptations by the Court of Appeal were arguably necessary to adapt to Singapore’s context.[108]

Nonetheless, what is clear is that the HCK test seeks to strike a unique balance in Singapore between patient autonomy and beneficence. The HCK test, in light of its various features and aspects, has thus set a new standard of care required of Singapore doctors in advice scenarios that has sought to place an appropriate emphasis on both the patient and the doctor.

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* LLB (Hons) (NUS), Class of 2019.

[1] A classification that was made in Dr Khoo James & Anor v Gunapathy d/o Muniandy, [2002] SGCA 25; [2002] 1 SLR(R) 1024 and elaborated on in Hii Chii Kok v Ooi Peng Jin London Lucien and Another, [2017] SGCA 38; 2017 2 SLR 492 at [89].

[2] Sidaway v Bethlem Royal Hospital Governors, [1985] AC 871 (HL (Eng)).

[3] Dr Khoo James & Anor v Gunapathy d/o Muniandy, [2002] SGCA 25; [2002] 1 SLR(R) 1024 at [65].

[4] Montgomery v Lanarkshire Health Board, [2015] 1 AC 1430 (SC (Eng)).

[5] Rogers v Whitaker, [1992] 175 CLR 479 (HCA).

[6] Such as the American case of Canterbury v Spence, [1972] 464 F 2d 772, the Canadian case of Reibl v Hughes, [1980] 2 SCR 880 (SCC) and the Malaysian case of Foo Fio Na v Dr Soo Fook Mun & Anor, [2007] 1 MLJ 593 (FC).

[7] Hii Chii Kok v Ooi Peng Jin London Lucien and Another, [2017] SGCA 38; [2017] 2 SLR 492.

[8] Keith Jieren Thirumaran, “The exceptions allowing for Non-Disclosure of Information by Doctors in Singapore – Part 2 of the HCK Series” (2019) Singapore Law Review, 11 Juris Illuminae (online).

[9] Supra note 7 at [132].

[10] Ibid at [132].

[11] Supra note 7 at [134]; Lam Kwok Tai Leslie v Singapore Medical Council, [2017] SGHC 260; [2017] 5 SLR 1168 at [31].

[12] Supra note 7 at [149]; Lam Kwok Tai Leslie v Singapore Medical Council, [2017] SGHC 260; [2017] 5 SLR 1168 at [31].

[13] Supra note 7 at [144].

[14] Ibid.

[15] Ibid at [137].

[16] Ibid.

[17] Ibid at [139] and [143]. In determining materiality, the court gave the example of risks and opined that the likelihood and severity of the risk would determine materiality to a reasonable patient – Ibid at [140].

[18] Ibid at [145].

[19] In Montgomery, the types of information only included “any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments” – See: Supra note 4 at [87].

[20] Supra note 7 at [132] and [138].

[21] Dickson v Pinder, [2010] ABQB 269 at [68].

[22] Ibid at [68]. Supra note 7 at [132] and [138].

[23] Supra note 7 at [143]. For example, “where the diagnosis is uncertain, more information pertaining to other possible diagnoses will also become material” – See: Supra note 7 at [143].

[24] Supra note 7 at [133].

[25] Ibid at [133].

[26] Ibid at [134].

[27] Supra note 8.

[28] Supra note 7 at [134].

[29] Ibid.

[30] Ibid.

[31] Ibid at [148].

[32] Ibid at [149].

[33] Ibid.

[34] Ibid at [150].

[35] Ibid.

[36] Ibid at [151]. In this situation, rather than justifying a doctor’s withholding of information, the reality is that the duty to advise the patient is itself suspended out of necessity.

[37] Ibid at [151].

[38] Ibid at [152]. The court also elaborated on some examples such as patients with anxiety disorders or are easily frightened as well as patients “whose state of mind, intellectual abilities or education” make it “impossible or extremely difficult” to weigh the risks and understand the reality.

[39] Ibid at [153].

[40] Ibid.

[41] Ibid at [85].

[42] Ibid at [116].

[43] Ibid at [118].

[44] Ibid at [120].

[45] Ibid at [119].

[46] Ibid at [113].

[47] Ibid at [118], citing Singapore Medical Council, Ethical Code and Ethical Guidelines, Singapore: Singapore Medical Council, 2016.

[48] Ibid at [125].

[49] Ibid at [97].

[50] Ibid at [125].

[51] Ibid at [120].

[52] Ibid.

[53] Ibid at [131].

[54] Ibid at [113].

[55] Ibid at [85].

[56] Ibid.

[57] Healthcare in Singapore is largely funded privately or through insurance schemes, although government subsidies may be provided. On the other hand, the UK’s National Health Service is financed by the government through taxes. As a result, in the event that an overly patient-centric approach results in defensive medicine, the increase in healthcare costs would have a greater impact on Singapore society that in the UK. This is because it would mean higher out-of-pocket expenditure by those in need of healthcare as well as higher insurance premiums for the general public.

[58] Supra note 7 at [132].

[59] Supra note 5 at [16].

[60] Supra note 4 at [87].

[61] Regina (M & Another) v Human Fertilisation and Embryology Authority, [2017] 4 WLR 130 (CA (Eng)) at [79].

[62] Ibid at [79].

[63] If a patient is reasonably likely to attach significance to the information (thereby considering it material), then there is no conceivable way for the information to be irrelevant to the patient. This is because where a patient considers information material, the information must logically be in some way related or have some connection to the scenario the patient is in. If the information were not relevant because it was not related or connected to the patient in any way whatsoever, no patient would reasonably attach significance to it in the first place.

[64] This is clear from the facts of HCK where certain specific information on the test (like the number of times it had been used before) were not material, although they were relevant to the patient as it was the test that the patient had undergone – See: Supra note 7 at [186].

[65] It is important to note that there is a recent Singapore case that takes a different view of defensive medicine and this is discussed later in this commentary: see note 75 below and its accompanying text.

[66] Supra note 2 at 887.

[67] Supra note 7 at [84] & [87].

[68] Tong Seok May Joanne v Yau Hok Man Gordon, [2012] SGHC 252 at [76].

[69] Supra note 3 at [144].

[70] Response by Chief Justice Sundaresh Menon at the Opening of the Legal Year 2016 (11 January 2016) at para 43.

[71] Singapore Parliamentary Debates, Official Report (1 April 2019) vol 94 “Protecting Patients’ Interests and Supporting the Medical Community” (Gan Kim Yong, Minister for Health) – which states: “In the current climate of uncertainty, there is a real risk that medical practitioners will adopt defensive medicine. There is evidence that this is already happening. Fearing that they might be called out should a complication occur, doctors are likely to overwhelm patients with voluminous information on multiple unlikely risks, protecting themselves legally but confusing patients.”

[72] Chief Justice Sundaresh Menon, “Evolving Paradigms for Medical Litigation in Singapore”, (28 October 2014) Obstetrical & Gynaecological Society of Singapore at [33].

[73] Supra note 7 at [132] & [138].

[74] Supra note 21 at [68].

[75] Singapore Medical Council v Lim Lian Arn [2019] SGHC 172 at [53].

[76] Ibid at [53].

[77] Ibid at [54].

[78] See note 66 above and its accompanying text.

[79] Singapore Parliamentary Debates, Official Report (1 April 2019) vol 94 “Protecting Patients’ Interests and Supporting the Medical Community” (Gan Kim Yong, Minister for Health) – which states: “In the current climate of uncertainty, there is a real risk that medical practitioners will adopt defensive medicine. There is evidence that this is already happening. Fearing that they might be called out should a complication occur, doctors are likely to overwhelm patients with voluminous information on multiple unlikely risks, protecting themselves legally but confusing patients.”

[80] Being unsure, a doctor is likely to behave defensively in an attempt to remain legally safe, thus resulting in the disclosure of material information whether relevant or irrelevant. This final outcome would also have originated under the Montgomery test.

[81] Supra note 7 at [132] and [138]. Supra note 21 at [68].

[82] Supra note 7 at [143].

[83] Ibid.

[84] Supra note 4 at [13].

[85] Supra note 7 at [47].

[86] Spencer v Hillingdon Hospital NHS Trust, [2015] EWHC 1058 at [32].

[87] Supra note 7 at [133].

[88] This is because in such a scenario, a reasonable medical practitioner cannot be expected to have possession of such information beyond medical science – See: Rosenberg v Percival, [2001] HCA 18 at [67], Gummow J.

[89] Supra note 7 at [96].

[90] Noor Azlin Bte Abdul Rahman v Changi General Hospital Pte Ltd [2018] SGHC 35 at [55]; Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2019] SGCA 13 at [80] – [82].

[91] Supra note 7 at [98].

[92] Ibid at [96].

[93] Ibid at [97].

[94] Ibid at [133].

[95] Supra note 90 at [55].

[96] “The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.” – See: Supra note 4 at [87].

[97] Supra note 4 at [87].

[98] “Materiality is to be assessed from the vantage point of the patient, having regard to matters that the patient in question was reasonably likely to have attached significance to in arriving at his decision, or matters which the doctor in fact knew or had reason to believe that the patient in question would have placed particular emphasis on.” – See: Supra note 7 at [137].

[99] Supra note 7 at [137].

[100] Supra note 7 at [139] & [143].

[101] See note 68-72 above and its accompanying text.

[102] Singapore Parliamentary Debates, Official Report (11 February 2019) vol 94 “Informed Consent for Medical Procedures Following Recent Case where Orthopaedic Doctor was Fined” (Dr Lam Pin Min, Minister of State for Health) – which states: “There has been feedback on the considerable confusion amongst medical practitioners on the requirements on informed consent and material information, and how the modified Montgomery Test and the ECEG should apply. … I am clearly aware of the concerns of many medical professionals on the Modified Montgomery Test. I have personally received feedback from fellow medical practitioners especially on the requirement on informed consent and material information, and how this new test should be applied. There is also feedback from the medical community that this may lead to defensive medicine and escalation of healthcare cost.”

[103] Supra note 7 at [90].

[104] Ibid.

[105] Ibid at [91].

[106] Ibid at [92].

[107] Ibid at [143].

[108] Supra note 57.

The Exceptions Allowing For Non-Disclosure of Information by Doctors in Singapore – Part 2 of the HCK Series

The PDF version of this article can be found here.

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the Exceptions Allowing for Non-disclosure of information by Doctors in Singapore – part 2 of the hck series

Keith Jieren Thirumaran*

I.                    INTRODUCTION

In the landmark decision of Hii Chii Kok v Ooi Peng Jin London Lucien [HCK][1], the Singapore Court of Appeal adopted a modified and unique test in the context of medical advice for doctors in Singapore. In Part 1 of the HCK series[2], an overview of the HCK test was provided together with a detailed analysis of various aspects of the test. Part 2 of the HCK series will now focus specifically on stage 3 of the HCK test relating to the situations where a doctor is justified in withholding information from the patient regardless of its materiality, otherwise known as the exceptions to a doctor’s duty of disclosure.

II.                 OVERVIEW OF HCK TEST’S STAGE 3

The HCK test formulated by the Singapore Court of Appeal is a three-stage test. The first stage involves the patient’s identification of the information not provided and why it should be regarded as relevant and material.[3] The second stage involves determining whether the doctor was in possession of the information identified as relevant and material.[4]

The third stage involves an examination of the reasons why the doctor chose to withhold the information from the patient.[5] The Court would determine whether the “doctor was justified in withholding the information”.[6] However, this would not be measured by the Bolam-Bolitho test even though it is informed by medical considerations.[7] After determining that the doctor’s reasons were justified, the Court would then determine whether it “was a sound judgment having regard to the standards of a reasonable and competent doctor”.[8] At this stage, expert medical evidence will have some significance because there is still “an element of professional judgment involved”.[9]

The Court did not want to confine or restrict the situations that could be justifiable, but held that courts would consider all the circumstances in determining whether the withholding of information was justified.[10] However, the Court elaborated on 3 non-exhaustive categories of situations that would justify non-disclosure.[11]

The first situation allowing for the withholding of information is where the patient does not wish to know the information.[12] This is treated as a “factual question” on the existence and scope of a patient’s waiver of the information and will not usually involve expert opinion.[13]

The second situation is where there is an emergency scenario such as when there is a threat of death or serious harm to the patient while the patient lacks decision-making capacity and there is no appropriate substitute decision-maker.[14] In this situation, rather than justifying a doctor’s withholding of information, the duty to advise the patient is itself suspended out of necessity.[15] For this situation, the Bolam-Bolitho test will apply because medical expert opinion will be “crucial” in determining whether the urgency of the situation is such that seeking opportunities to provide information to the patient can be sacrificed.[16]

The third situation involves therapeutic privilege and applies where a doctor “reasonably believes that the very act of giving particular information would cause the patient serious physical or mental harm”.[17] For this situation, expert medical and psychological evidence will “be helpful or even crucial” to the Court but the Bolam-Bolitho test will not be applied as the focus is on whether the Court is of the opinion that the patient would likely be harmed when informed of the material information.[18] The Court of Appeal also elaborated on some examples, such as patients with anxiety disorders, patients who are easily frightened and patients “whose state of mind, intellectual abilities or education” make it “impossible or extremely difficult” to weigh the risks and understand the reality.[19]

III.              ANALYSIS OF STAGE 3 OF THE HCK TEST

It is evident from the HCK test that stage 3 is much more detailed and specific in its elaboration of the various exceptions to a doctor’s duty of disclosure, as compared to the UK Supreme Court’s test in Montgomery v Lanarkshire Health Board [Montgomery][20]. The HCK decision draws inspiration from the Montgomery decision while simultaneously building upon the existing pronouncements on the exceptions to disclosure. This section will now explore the features of the HCK test’s stage 3 that set it apart from the decision in Montgomery.

1.       Expansion of exceptions using an open-ended approach

The first unique and distinguishing feature of the HCK test’s stage 3 relates to the situations (or exceptions) that entitle doctors to withhold relevant and material information.

The Court in HCK adopted an open-ended circumstance-based approach regarding what kinds of situations would justify the withholding of information.[21] The Court would determine whether the doctor had reasonably justifiable reasons for withholding the information and whether it “was a sound judgment having regard to the standards of a reasonable and competent doctor”.[22]

At first glance, this might seem like a reversion back to the Bolam-Bolitho test. However, the Court has emphasised that this would not be the case[23] and medical evidence merely has significance due to “the element of professional judgment involved”[24]. Although the second aspect of this approach takes into account medical evidence, this is only done to the extent that medical considerations are involved.[25] As such, in the final analysis, it is the Court that must be “satisfied that the non-disclosure of information was justified” on the facts of the case and not whether the non-disclosure was accepted as proper by a responsible body of medical men.[26]

Insofar as the balance between patient autonomy and doctor’s opinions are concerned, HCK appears to take a patient-centric approach by not applying the Bolam-Bolitho test across the board for all situations that justify the withholding of information. While Montgomery is silent on the tests for assessing the situations justifying the withholding of information, support for Singapore’s position can be found in the Australian High Court where it was stated that medical practice and opinion are still relevant although it is no longer conclusive because the decision belongs to the courts.[27] As such, although patient autonomy now plays an important role, this is balanced against the fact that medical evidence will still be taken into consideration, albeit not in the same manner as Bolam-Bolitho.

However, insofar as the types of situations where non-disclosure might be justifiable are concerned, the Court in HCK has gone further than Montgomery by applying a flexible test that is broad and leaves the possibility open for other situations. While it may be argued that the open-ended nature will add to the ambiguities and uncertainties discussed in Part 1 of the HCK series[28], it is submitted that this will likely have no immediate impact on doctors who are likely to continue relying solely on the three well-established exceptions. This is a result that would have eventuated under the Montgomery test as well. Nonetheless, it does give some flexibility and manoeuvrability to the courts in the event of a future case outside the scope of the three established exceptions that has special facts that justify a doctor’s withholding of information.

2.       Details on the application of exceptions

The second unique and distinguishing feature of the HCK test’s stage 3 is that it elaborates and provides the exact conditions that need to be satisfied in order to successfully rely on the situations (or exceptions) that entitle doctors to withhold relevant and material information. As the Supreme Court in Montgomery did not elaborate on the exceptions, it remains to be seen whether the standards adopted will be the same.

Where the patient does not wish to know the information, the issue would be treated as a “factual question” on the existence and scope of a patient’s waiver of the information and will not usually involve expert opinion.[29] This must be correct as a doctor’s decision on whether there has been a waiver is not dependent on medical expertise[30] but is merely dependent on whether a waiver of information actually exists on the facts.

In an emergency situation, the Bolam-Bolitho test will apply as medical expert opinion will be “crucial” in determining whether the urgency of the situation is such that seeking opportunities to provide information to the patient can be sacrificed.[31] This is correct as the urgency of treatment is essentially a medical issue and an area in which judicial wisdom has its limits.[32]

The final situation dealt with in HCK where a doctor can withhold information from the patient is therapeutic privilege. Therapeutic privilege applies where “the doctor reasonably believes that the very act of giving particular information would cause the patient serious physical or mental harm”.[33]

In cases involving therapeutic privilege, expert medical and psychological evidence will “be helpful or even crucial” to the Court but the Bolam-Bolitho test will not be applied as the focus is on whether the Court is objectively of the opinion that the patient would likely be harmed when informed of the material information.[34] Here, the Court adopts the middle ground by recognizing that medical opinion is relevant but reserving the final determination on whether the patient would be harmed to the Courts.

The necessity of therapeutic privilege in any case is largely a medical decision to make. This is because determining the effect of the information on a patient involves analysis that extends to the state of mind and psychological condition of the patient, of which doctors have a degree of experience with assessing in light of their medical training. However, a decision on the applicability of therapeutic privilege would take away a patient’s autonomy in making a choice and as such it is understandable that the Court did not wish to leave such a decision entirely to the medical profession. One concern that arises is whether interfering with medical opinion on therapeutic privilege goes against the principle that “a judge, unschooled and unskilled in the art of medicine, has no business adjudicating matters over which medical experts themselves cannot come to agreement”.[35] However, it appears that the Court in HCK was only reserving the final decision on therapeutic privilege to itself. This can be viewed as a Bolitho-style test of logic and consistency. Therefore, if interpreted this way, the courts reserving the right of making the final determination on therapeutic privilege does not result in any inconsistency.

A common concern that arises out of therapeutic privilege is that it has the “potential to ‘swallow’ the doctor’s obligation of disclosure”.[36] If left unchecked, the effect of the therapeutic privilege exception could render patient autonomy otiose or non-existent. This would occur where doctors are given too much freedom in exercising the privilege.

While the Court in Montgomery did not elaborate on the scope of this exception, the Court in HCK gave the exception a broad and expansive scope. This was because the Court felt that “doctors should have a measure of latitude in invoking the therapeutic privilege”.[37] Nonetheless, the Court in HCK stressed that therapeutic privilege should not be abused to prevent a patient that is capable of making a choice from doing so just because the doctor believes that it is contrary to the patient’s best interests[38]. This point was also made in Montgomery.[39] The broad scope of therapeutic privilege under HCK raises two areas of concern with regards to medical paternalism.

The first area of concern involves the kind of potential harm that would permit a doctor to withhold information. The position in Montgomery allows withholding information where it would be “seriously detrimental to the patient’s health”[40] while in Rogers v Whitaker withholding information is allowed where it would “prove damaging to a patient”[41]. Notwithstanding the cautionary statements made by the courts earlier, these vague tests have the potential to include the effects of making a bad decision as a type of harm under therapeutic privilege. This would render patient autonomy illusory because a doctor can simply claim that an informed choice not to undergo treatment would result in harm to the patient simply because the patient would not be getting treated. Under HCK, the position appears to be similar and includes both serious “physical” harm and “mental” harm.[42] This potentially allows physical harm caused by not undergoing treatment to qualify.[43] This is further supported by the fact that the privilege applies even where a patient may be “easily frightened out of having even relatively safe treatments that can drastically improve their quality of life”.[44]

The second area of concern involves the type and condition of patients who may potentially have therapeutic privilege invoked against them. Under HCK, therapeutic privilege extends to cases where a patient’s decision-making capabilities are impaired to an appreciable degree, although they may not strictly lack mental capacity.[45] In determining whether the patient suffers from an impairment of his decision-making abilities, regard will be given to the benefits of the treatment, the relatively low risks present, and the probability that even with suitable assistance the patient would refuse treatment due to a misapprehension of information.[46] The factors that are taken into account suggest that a patient who has made a mistake in his decision, and as a result has not chosen something that would objectively be considered good for him, may be considered as having an impairment in decision-making abilities. This mimics medical paternalism where the patient’s choice is overturned because it is not good for the patient. This is difficult to reconcile with the principle that a person should not be treated as unable to make a decision merely because he makes an unwise decision under the Singapore Mental Capacity Act.[47]

Furthermore, although the Court in HCK emphasized that a patient’s decision-making ability had to be “impaired to an appreciable degree”, the Court tapered this with the inclusion of patients who were easily frightened and whom it would be extremely difficult to explain the true reality to.[48] To some extent, this is contradictory with the earlier statement that a patient who is “capable of making a choice” should be allowed to do so even if it is contrary to the patient’s best interests.[49]

The combined effect of these two areas of concern is that the balance between patient autonomy and medical paternalism becomes blurred. While medical decisions in clear-cut scenarios of mentally incapacitated patients should be left to the doctor and a clear-minded and informed patient should be allowed to make a “bad” decision, the line becomes very fine in the grey area where a patient has mental capacity but his decision-making ability is impaired. This presents a difficult tension between allowing the patient to “wrongly” weigh the information in the interests of patient autonomy and allowing medical paternalism to protect the patient from his own decisions and their resultant harms under beneficence.

As such, the current position in respect of the scope of the therapeutic privilege exception in Singapore is unclear and requires further clarification. The effect of the current uncertainty surrounding this privilege is that doctors will not be comfortable invoking therapeutic privilege in the grey area where their patient has mental capacity along with some impairments in decision-making abilities. This may well be the desirable position to remain in in order to give full effect to patient autonomy and allow patients to make “bad” decisions.

IV.              CONCLUSION

In conclusion, although the HCK test has many positive features and has made great progress in the direction of patient autonomy[50], stage 3 of the HCK test presents certain difficulties that have the potential to derail the progress made in the former stages of the test. The expansion of the potential exceptions and situations for the withholding of information entails different forms of analysis within each exception. The HCK test provides details on how each exception should be applied, some of which bring back notions of medical opinion and evidence playing roles. However, the adoption of therapeutic privilege from English and Australian law requires further thought. Nonetheless, overall the HCK test strikes a unique and delicate balance between patient autonomy and beneficence in Singapore.

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*LLB (Hons) (NUS), Class of 2019.

[1] Hii Chii Kok v Ooi Peng Jin London Lucien and Another, [2017] SGCA 38; [2017] 2 SLR 492.

[2] Keith Jieren Thirumaran, “The Unique Standard of Care for Doctors in Singapore – Part 1 of the HCK Series” (2019) Singapore Law Review, 11 Juris Illuminae (online).

[3] Supra note 1 at [132].

[4] Ibid at [133].

[5] Ibid at [134].

[6] Ibid.

[7] Ibid.

[8] Ibid at [134].

[9] Ibid at [148].

[10] Ibid at [149].

[11] Ibid.

[12] Ibid at [150].

[13] Ibid.

[14] Ibid at [151].

[15] Ibid.

[16] Ibid.

[17] Ibid at [152].

[18] Ibid at [153].

[19] Ibid at [152].

[20] Montgomery v Lanarkshire Health Board, [2015] 1 AC 1430 (SC (Eng)).

[21] Supra note 1 at [149].

[22] Ibid at [134].

[23] Ibid.

[24] Ibid at [148].

[25] Ibid at [149].

[26] Ibid at [134].

[27] Rosenberg v Percival, [2001] HCA 18 at [7], Gleeson CJ.

[28] Supra note 2.

[29] Supra note 1 at [150].

[30] Supra note 20 at [13].

[31] Supra note 1 at [151].

[32] Dr Khoo James & Anor v Gunapathy d/o Muniandy, [2002] SGCA 25; [2002] 1 SLR(R) 1024 at [144]. Supra note 1 at [81].

[33] Supra note 1 at [152].

[34] Ibid at [153].

[35] Supra note 32.

[36] Meyer Estate v Rogers, [1991] O.J. No. 139, 2 O.R. (3d) 356 at [31].

[37] Supra note 1 at [152].

[38] Ibid at [153].

[39] Supra note 20 at [91].

[40] Ibid at [88].

[41] Rogers v Whitaker, [1992] 175 CLR 479 (HCA) at [9].

[42] Supra note 1 at [152].

[43] Ibid.

[44] Ibid.

[45] Ibid at [152]-[153]. Examples provided by the court included patients with anxiety disorders, geriatric patients who may be easily frightened out of relatively safe treatments, and patients whose state of mind, intellectual abilities or education make it impossible or extremely difficult to explain the true reality to them.

[46] Ibid at [153].

[47] Mental Capacity Act (Cap 177A, 2010 Rev Ed Sing), s 3(4).

[48] Supra note 1 at [152].

[49] Ibid at [152]; Supra note 20 at [91].

[50] Supra note 2.