No consent: the consequences
In a serious case, the doctor can be prosecuted for the Penal Code offence of use of criminal force, which carries an imprisonment term and a fine.15 Failure to obtain valid consent can also ground a civil case under the tort of negligence16 or tort of battery,17 leading to claims for monetary compensation. It can also be the subject of professional misconduct charges against a doctor upon complaint to the SMC.18
In one SMC case, the disciplinary tribunal held that a failure to obtain informed consent to invasive surgery is a serious form of professional misconduct, and the suspension term it meted out to the respondent doctor was upheld on appeal by the High Court.19 A doctor may therefore be put through the criminal, civil and/or disciplinary justice process for operating without consent. In medicolegal cases, what was discussed and advised during the consent-taking process is largely a question of fact, and the court or disciplinary tribunal will examine the available oral and documentary evidence of those who partook in the process to determine where the truth lies. Whether the advice to the patient meets the required standard of care (or conversely whether it constitutes a breach of the duty of care), will be a question that usually hinges on expert opinion.
In Singapore, the Bolam-Bolitho test applies to the standard of care for diagnosis, treatment as well as advice. Under this test, a doctor is not liable for negligence if they have acted in accordance with a responsible body of medical opinion, provided that this opinion stands up to logical analysis and scrutiny. In this regard, the court will assess whether the expert opinion in support of a certain standard of care has balanced the comparative risks and benefits relating to the matter, considered and weighed all the countervailing factors relevant to the issue, and arrived at a defensible conclusion that is internally cogent and not contradicted by proven extrinsic facts.20