New Pre-action Protocol for Medical Negligence

On 29 November 2007, the Subordinate Courts of Singapore issued e-Practice Direction No.3 of 2006 which establishes a new pre-action protocol for medical and dental negligence cases.

The protocol affords patients (or the patients’ administrators, executors or relatives, where death has occurred) a chance to discuss their disputes / differences with their medical practitioners and/or hospitals before commencing a lawsuit against them in Court.  The Subordinate Courts hope that in this way, many disputes will be resolved without the need for court action.

The protocol itself states that its primary objective is to “prescribe a framework for the pre-Writ exchange of information and communication with a view to resolve medical negligence disputes arising out of a negligent act or omission in the course of medical or dental treatment without litigation and to maintain / restore the patient/healthcare provider relationship".

For now, the protocol will only be employed by the Subordinate Courts.  It may be extended to the High Court in future.  It also does not apply to psychiatric care or alternative / traditional medicine procedures.

The protocol takes effect from the time a potential claimant contemplates the filing of a medical negligence suit in the Subordinate Courts.  All discussions held in compliance with the protocol are ‘without prejudice’ and their contents cannot be repeated as evidence in Court.  For example, any apologies or incriminating explanations rendered by medical practitioners during these discussions will not be admissible in Court against them.  Similarly, any statements by the patient against his interests during these discussions cannot be used in evidence.  Open dialogue between patients and doctors / hospitals is encouraged in this way, without fear of compromising their respective cases if the matter cannot be settled.

The Court has a wide power and discretion in policing compliance with the protocol.  The Court may order a stay of the proceedings where the patient has failed to comply with the protocol.  On the other hand, if a doctor or hospital fails to comply with the protocol, the Court may make a special costs order against the doctor and/or hospital e.g. reversing, or ordering more costs than, the normal costs awarded.  But sanctions will not be imposed where parties have good reasons for not complying with the protocol. 

Generally, the protocol involves the following steps:-

• The affected patient or his relative submits a form briefly stating the basis of the claim and requests a medical report on him, and what happened. The doctor has six weeks to submit the report.  The report should address key areas e.g. symptoms, cause of death / adverse outcome, treatment details, risks, alternative treatments etc.

• On receiving the report, the claimant can write to the doctor or hospital to arrange the “without prejudice” meeting. The doctor or hospital has 14 days to respond. The meeting must take place within two months. After this, both sides are free to continue their negotiations or discussions with a view to resolving the matter. 

• If the patient decides to proceed with a lawsuit, he has to give 10 days’ notice to the doctor / hospital before he files anything in Court. 

This gives the patient and his doctor / hospital a final chance to settle the case before going to Court.

The protocol takes effect on 2 January 2007.

Pending changes to the Penal Code

Recent talk of proposed amendments to the Penal Code, which codifies many criminal offences in Singapore has created a buzz among many groups in Singapore. The proposed amendments, many feel, are necessary to make the Code more current, and relevant to the present context. The Code, which is based on the Indian Penal Code last underwent a major review in 1984. In 1998 however, certain enhanced penalties were introduced for specific offences, for example, maid abuse.

The review has come about largely because of much public debate over whether some crimes, such as oral sex between consenting adults, should be considered obsolete. Many have also asked if the Code is equipped to deal with crimes committed the high-tech way (i.e. through electronic media, or hand phones).

What are the proposed changes?
Broadly, the proposed amendments fall into three categories:-

(a)  Offences

• Expanding and modifying the scope of existing offences;
• Introduction of new offences; and
• The repeal of certain offences.

(b)  Clarifying and updating definitions, expressions and explanations; and

(c)  Reviewing penalties for existing offences.

Amendments in terms of Offences
19 sections of the Code are covered as part of the review. While some sections have been expanded to include the commission of offences via electronic medium (e.g. sale of obscene books- Section 292, defamation – Section 499), others have been clarified (for example that an offence of cheating would be committed even if deception was not the sole or main inducement).

The proposed amendments also seek to repeal the existing section 377 of the Code. Section 377 of the Code presently criminalizes all forms of carnal intercourse against the “order of nature”, other than vaginal intercourse between man, woman or animal. Under the existing provisions, it did not matter whether consent for the act was obtained, or whether it was done in a public or private place. The proposed amendments would allow anal and oral sex, if done in private between consenting heterosexual couples aged 16 and above.

Another amendment of considerable interest involves the withdrawal of marital immunity for a husband who rapes his wife. Under the present regime, a husband cannot be prosecuted if he rapes his wife, as long as she was over the age of 13. Whether she had consented or not was an irrelevant consideration. Public sentiment has shown that this was an antiquated view, particularly given the changed status of women, and the nature of the marital relationships in modern Singapore.

It is now proposed that the immunity be withdrawn if it can be shown that the rape occurred in circumstances where the marriage had clearly broken down, (for example where there was an order prohibiting the husband from having sexual intercourse with wife, or that there was a personal protection order in favour of the wife against him).

Other changes proposed deal with the protection of minors and the mentally disabled against adult sexual predators. The Code will also seek to criminalize the act of procuring or soliciting sexual services from minors overseas. Plans are afoot to also criminalize the organizing or promotion of “sex tours” both in Singapore and overseas.

Amendments by way of Clarifications
Certain definitions in the Code will also be clarified. These include the definitions of terms such as :-

• “document”;
• “valuable security”;
• “touching” ; and
• “obscene”.

The aim of this part of the exercise is to update and make clear the extent and purport of these words.

Amendments by way of a review of penalties
Finally, the amendments also seek to review existing penalties, as well as make recommendations for new offences. It was felt that the quantum of fines imposed ought to be reviewed as the last time fines were reviewed was in 1952. Insofar as terms of imprisonment was concerned, whilst certain offences would call for greater terms of custodial sentences, the main ambit of the proposals are to give to the sentencing judge a greater discretion and flexibility to determine the appropriate sentence between available options.

Proposed changes to the period of retention of records

The Statutes (Miscellaneous Amendments) Bill 2006 (the Bill) was introduced in Parliament on 8th November 2006. In addition to other changes, the Bill proposes changes to the Acts listed below to shorten the period for the retention of records for record-keeping to five years.

• Building Maintenance and Strata Management Act (retention of records and books of account by management corporation reduced from 7 years to 5 years)
  
  
• Business Trusts Act (retention of accounting records by trustee-manager of registered business trust reduced from 7 years to 5 years)
  
  
• Charities Act (a. preservation of accounting records by charity trustees, b. preservation of accounting records by charity trustees where a charity ceases to exist and c. preservation of statement of accounts by charity trustees: all reduced from 7 years to 5 years)
  
  
• Companies Act (Accounting records and systems of control reduced from 7 years to 5 years)
  
  
• Corruption, Drug Trafficking and other Serious Crimes (Confiscation of Benefits) Act (definition of “minimum retention period” reduced from 6 years to 5 years)
  
  
• Customs Act (retention of trade documents by importer or exporter of dutiable goods reduced from 7 years to 5 years)
  
  
• Financial Advisers Act (a. retention of circular or other similar written communication in which licensee makes a recommendation with respects to securities and b. register of interests in securities kept by licensee who provides financial advisory service in respect of securities: both reduced from 6 years to 5 years)
  
  
• Income Tax Act (retention of records by person carrying on or exercising any trade, business, profession or vocation reduced from 7 years to 5 years)
  
  
• Limited Liability Partnerships Act 2005 (retention of accounting and other records by limited liability partnership reduced from 7 years to 5 years)
  
  
• Money-changing and Remittance Businesses Act (retention of books, accounts, records and registers by licensee reduced from 6 years to 5 years)
  
  
• Moneylenders Act (retention of books of accounts by moneylender fixed at 5 years)
  
  
• Pawnbrokers Act (retention of books and documents by pawnbroker fixed at 5 years)
  
  
• Securities and Futures Act (a. keeping of books by holder of capital markets services licence, b. retention of written offer, recommendation of written statement by holder of CMS licence and c. register of securities kept by holder of CMS i) to deal in securities, ii) to advise on corporate finance and iii) for fund management: all reduced from 6 years to 5 years)
  
  
• Trust Companies Act (keeping of books and furnishing of returns by licensed trust company reduced from 6 years to 5 years)

When enacted into law, the new period of retention of records will apply to any document whether the obligation to keep or retain such document first arose before, on, or after the date of commencement of the amendment to the relevant Act.

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