singapore law gazette (may 2015)

Recruit Legal391A Orchard Road

#11-03 Ngee Ann City Tower ASingapore 238873

Legal & Compliance In-HouseL0415 - 2395 Senior Legal Counsel Holding Company -> 10-15 PQE A Singapore-based holding company with diverse business interests including Real Estate, Logistics, and offshore operations is looking for a Senior Counsel to join its team. The well-established brand has been geared towards growing beyond Singapores shores in the past 2 decades and now has successful global operations. The selected candidate can expect to work on highly valued projects. Contact Helmi

L0115 - 2371 Senior Legal Counsel - Technology - >10 PQE An established US MNC in the technology industry is seeking for a Senior Legal Counsel. Reporting to the General Counsel, you will be expected provide legal advice to the region including all commercial, antitrust, compliance as well as IP matters. As a Key Counsel in the team and as a senior advisor to the business units, you should have at least 13 - 15 years of PQE and have had prior in-house experience. Prior industry background in the IT industry will be advantageous. Interested candidates please contact Eileen

L0415-2392 Senior Legal Counsel Energy/Utilities 10PQE A Singapore listed company is looking for a Legal Counsel to join their legal team. You can expect to provide a wide range of legal support for the Groups business (both local and overseas) including drafting of contracts, providing legal advice, ensuring statutory and regulatory compliance. Preferably you should have prior experience in the telecommunications industry. Interested candidates please contact Eileen

L0415-2391 - Senior Legal Counsel - Aviation - 8-10 PQE A listed company in the aviation industry is seeking a Senior Legal Counsel to join its established legal team. You will be required to handle substantial M&A matters as well as lead IP projects including drafting, reviewing and negotiation licensing and technology contracts. You should have at least 8-10 years of PQE with strong in-house experience. Interested candidates please contact Eileen

L0315-2387 - Regulatory Compliance Manager - >8-10PQE A British multinational institution specialising in Insurance is looking to hire a Regulatory Compliance Manager. You would be expected to ensure that monitoring and advisory activities are effectively managed and review and update Compliance Policies. You should have 8 years of experience with at least 5 years in compliance. Contact Jane

Please visit www.recruit-legal.com for a full list of our positionsAlternatively, contact us at (65) 6535 8255 or 391A Orchard Road, #11-03 Ngee Ann City Tower A, Singapore 238873

Interested? Please contact Claire Lin Xiuxin (R1103711) at [email protected], Muhammad Helmi Ali (R1113285) at [email protected], Eileen Low Yi Lin (R1330643) at [email protected], Yasmeen Fatmah Hussain (R1327217) at [email protected], Daniel Yoong Jiarong (R1332481) at [email protected], Adeline Lim Chan Yin (R1324939) at [email protected],

Kate Chang Chu Yan (R1332479) at [email protected], or Jane See Si Hui (R1332480) at [email protected] or (65) 6535 8255 for more information

L0415-2394- Legal Counsel Brokerage firm - 8-10 PQE -> Established global brokerage firm is looking for a legal counsel to join their team. Candidates called to a Common Law bar with brokerage or banking experience will be considered favourably. Contact Daniel

L0415 2397 Legal Counsel Oil & Gas - > 5 PQE A global MNC is seeking a Legal Counsel. Candidates with APAC working experience will be considered favourably. Contact Adeline

L0415 2398 FMCG - > 5 PQE A prominent player in the FMCG industry is seeking a Legal Counsel to join their expanding team. Candidates with supply chain management experience will be considered favorably. Contact Adeline

L0415 - 2400 - Automotive - >5PQE My client, in the automotive industry is seeking a Legal Counsel with at least 5PQE. As a sole Legal Counsel, you are required to provide legal advice to the business units, drafting and negotiating agreements, as well as policy development. Candidates with knowledge of PDPA, Anti-Corruption law or Lemon law will be highly considered. Interested, please contact Kate

L0415-2396 - Legal Counsel - Real Estate - > 4 PQE My client, an MNC in the real estate industry, is looking for a Legal Counsel. Responsibilities include drafting and negotiating a variety of commercial agreements and managing risks as well as litigation matters. The role covers a regional scope and will involve travelling. Contact Yasmeen

L0415-2389 - Legal Counsel - Telco - 3- 7 PQE My , client, an International telecommunications company it looking for a Legal Counsel to join its team. You should have 3-6 years of legal experience within a telecommunications company or law firm, with solid skills in the drafting of commercial contracts. The ideal candidate is a team player, who thrives in a multicultural environment. Contact Yasmeen

L0415 - 2399 - Hospitality - 3-6PQE One of the worlds largest hotel group is looking for a mid level Legal Counsel, 3-6PQE. Main responsibilities include drafting, reviewing and negotiating hotel related contracts and providing legal advice to the business units, covering the Asia Pacific region. Candidates with general corporate experience, with hospitality or real estate exposure is highly preferred. Please contact Kate

Continued on page 4

Sui Generisrelentlessly advocated and demanded zero tolerance where corruption was concerned. He aimed, quite idealistically, for elimination rather than amelioration.

Did he succeed? How do we defi ne success? Corruption still exists, albeit sporadic and confi ned, but the wholesale eradication of a human vice is a wholly inappropriate measure of success. What is more signifi cant is the vast majority of us intellectually and viscerally disavow and repudiate corrupt acts. In Singapore, corruption is considered morally reprehensible, unlike other parts of the world, where it operates in a sort of moral demilitarised zone.

More importantly for us as lawyers, we enjoy the benefi t of a system where we have one of the most incorruptible judiciaries in the world. Disputes can be adjudicated fairly, transparently and predictably, in accordance with law and due process, instead of being infl uenced by factors exogenous to the legal system. The concept of payment for outcomes is not only anathema, it is alien. No dispute resolution system is perfect, miscarriages of justice may still happen because Judges are human and can make mistakes. Our comfort is two-fold; these mistakes are not mala fi de, and the option to appeal is usually available. What Mr Lee has left behind is a judiciary that can be trusted to uphold the law and that cannot be manipulated. It has given our Courts exceptional credibility, and on that foundation, allowed it to raise judicial standards to a level that is universally respected. That has allowed the profession to fl ourish, to attract and retain top minds in the dispute resolution space, and allow us the almost audacious ambition to create an international commercial court in Singapore.

Another perhaps more enduring legacy was aspirational. Lee Kuan Yew taught us that we could dare to dream, to imagine, and to achieve excellence, and beyond. Richard Nixon said of Lee Kuan Yew that had he lived in another time and place, he may have "attained the world stature of a Churchill, a Disraeli, or a Gladstone. After witnessing world

"One of the asymmetries of history, is the lack of correspondence between the ability of some leaders and the power of their countries.

Henry Kissinger on Lee Kuan Yew

Prime Minister. Global Statesman. Founding Father. His story is an inextricable part of Singapore's remarkable narrative, and the quintessence of Singapores pioneering spirit. He did win hearts and minds, and in many ways, belonged to the nation. But he was also an advocate and solicitor, the fi rst Honorary Member of the Law Society. We, the profession, proudly claim him as one of us.

Much has been and will be written about his legacy to Singapore, and that is too large a canvass for me to even sketch. I will only attempt to articulate a part of the legacy that he left to our profession. One is foundational, for us to maintain. The other is visionary, for us to attain.

It is clear that his training in the law, and as a lawyer, was foundational to his thinking and the shaping of his policies. The idea of the Rule of Law, justice and fairness, were fundamental, and never far from sight. They may have been tempered by realpolitik, qualifi ed by pragmatism, and occasionally subordinated to national development, but he was a realist, concerned with what worked and what didnt in his words, he always tried to be correct, not politically correct. While there have been criticisms over where the right balance was struck, as a practising lawyer, I witness, fi rst hand, every day, the reality and effective operation of the Rule of Law, and the attitudes of mind supporting this.

I speak of Mr Lee's approach to corruption. This is in fact an area where his pragmatism did give way to ideology. There was no grudging acceptance of the inherent weakness of human nature, or any allowance for entrenched social and cultural norms where rules against corruption were more honoured in the breach than in their observance. He

01Presidents

Message

Singapore Law Gazette May 2015

Sui Generis 01Presidents Message M

Diary and Upcoming Events 05From the Desk of the CEO 06Law Society Members Remember Mr Lee Kuan Yew 08The Changing Role of Lawyers in the Next Few Years: 11Singapore Legal Career Forum 2015Know Your CPD Requirements Phase 2 of CPD Scheme 15

NewsN

Consent: Time to Say Goodbye to Bolam and Sidaway? 16An Offenders Lack of Antecedents: A Closer Look at its Role in Sentencing 24Singapore Merger Regime: Notifi cation Not Compulsory but Highly Recommended? 30

FeaturesF

The Young Lawyer The Fundamentals of International Legal Business Practice 35Practice Support Forensic Reconstruction A Primer for Lawyers 38

ColumnsC

Alter Ego Business and Law 43Food A Kyushu Seven Star Experience on Rail 45

LifestyleL

Notices In Memoriam Lee Kuan Yew's Legacy as Lawyer 50Professional Moves 54Information on Wills 56N 57Appointments

A

Contents

Th e Singapore Law Gazette

An Offi cial Publication of Th e Law Society of Singapore

Th e Law Society of Singapore39 South Bridge Road, Singapore 058673Tel: (65) 6538 2500Fax: (65) 6533 5700Website: http://www.lawsociety.org.sgE-mail: [email protected]

Th e Council of Th e Law Society of SingaporePresident Mr Th io Shen Yi, SCVice Presidents Mr Kelvin Wong Mr Gregory VijayendranTreasurer Ms Kuah Boon Th eng

Mr Lok Vi Ming, SC (Immediate Past President), Mr Lim Seng Siew, Mr Adrian Tan, Mr Steven Lam, Ms Parhar Sunita

Sonya, Ms Lisa Sam, Mr Anand Nalachandran, Mr Chiam Tao Koon, Ms Usha Chandradas, Mr Sunil Sudheesan, Mr Yeo Chuan Tat, Ms Katie Chung, Ms Wendy Lin, Mr Paul Tan, Mr Arvindran s/o Manoosegaran, Ms Simran Kaur Toor, Mr Grismond Tien

Editorial BoardMs Malathi Das, Mr Rajan Chettiar, Ms Celeste Ang, Ms Simran Kaur Toor, Mr Benjamin Teo, Mr Cameron Ford, Ms Debby Lim, Mr Evans Ng, Mr Kishan Pillay, Ms Lye Hui Xian, Mr Marcus Yip, Mr Prakash Pillai, Ms Shen Xiaoyin, Mr Vincent Leow

Th e Law Society SecretariatChief Executive Offi cer Ms Tan Su-YinCommunications & Membership Interests Mr Shawn TohCompliance Mr Kenneth GohConduct Ms Ambika Rajendram, Mr K GopalanContinuing Professional Development Ms Jean WongFinance Ms Jasmine Liew, Mr Cliff ord HangInformation Technology Mr Michael HoPro Bono Services Mr Tanguy Lim, Ms Babara Seet, Mr Choy Weng Leong, Mr Eoin MuimhneachinPublications Ms Sharmaine LauRepresentation & Law Reform Ms Delphine Loo Tan,Mr K Gopalan

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leaders over the last 20 years confer on him the status of global statesmen, and the unqualifi ed accolades visited on him during his wake and funeral, we Singaporeans would be forgiven a little chutzpah in saying that he did. They did great things, but Mr Lee was a great man. He had the vision to build a fi rst world global city when there was no expectation that we would even survive. Mr Lee made a mockery of the tag once attached to him, "a big man on a small stage". Look around you. Our stage, this country, is no longer that small.

Shortly after Singapore separated from Malaysia, Mr Lee said Over 100 years ago, this was a mud-fl at swamp. Today, this is a modern city. Ten years from now, this will be a metropolis. Never fear. Indeed. We are a global city today, and one of the most infl uential cities in the world. We have come a long way. When I was growing up, we were in the midst of building the Singapore miracle, and we still characterised ourselves as part of the third world. Our claim to signifi cance was that we had the fourth busiest port in the world. That statistic was our assurance of a tentative place on the global stage, that we were ascending the economic ladder.

It sounds surreal, almost ridiculous, when viewed with todays eyes. Today, we top multiple economic, judicial, trade and other rankings, often deservedly, and we have come to expect that in some areas, we will remain at those pinnacles. We have become world class in many areas. We have learnt our lessons from the best in the world. Now, in many aspects, we have something to teach the rest of the world.

As I refl ected on this over the course of the national week of mourning, I recalled the sentiments that I expressed in my speech at the Opening of the Legal Year that our lawyers need to be world class. And there is no reason why we can't be. Our entire nation is evidence of what can be achieved with vision, gumption, self-belief, desire and commitment. Rising to the challenge must be our response to his legacy.

We can be world class lawyers, whether in our own domestic fi rms or in international fi rms. We can build great domestic law fi rms, in every arena professional, organised, effective, committed and ethical; with the concerted belief that Singapore lawyers can put Singapore on the legal world map. The belief that we can be the choice of law for this region and beyond. That we can be a major global legal centre, for disputes and transactions. That our law fi rms can and will one day build globally respected brands.

It's not too big a vision to aspire to the highest standards. Singapore in many ways, has been there, done that. We've done the improbable, maybe even the impossible already. We owe it to ourselves, and to Mr Lee, to try.

Thio Shen Yi, Senior Counsel President The Law Society of Singapore

Continued from page 1

Update of the Guide to the Legal Profession (Solicitors Accounts) Rules

The Solicitors Accounts Rules (SAR) Committee of the Law Society has updated the existing Guide to the SAR. This task was undertaken in recognition of the importance of SAR compliance when running a law practice. The Committee has accordingly updated the Guide and made it available on the Law Society website for easy access to members. The Guide provides a useful brief on each of the Rules in the SAR and includes information on the application of the Rules. The Guide was launched on 8 May 2015 and can be downloaded at no charge at http://www.lawsociety.org.sg/forMembers/ResourceCentre/EShop/Store.aspx

04Presidents Message


Diary1 April 2015Topical Issues in International Arbitration: Singapore Case LawThrough a Comparative LensCo-organised by Young International Arbitration Group(of the London Court of International Arbitration) and theArbitration Committee of the Law Society2.45pm-4.40pmMaxwell Chambers

10 April 2015The Annual Law Fraternity Golf Tournament 2015Organised by the Sports CommitteeFrom 12.30pmKeppel Club

20 April 2015Seminar on the Psychology of Vulnerable Witnesses and VictimsOrganised by the Continuing Professional Development Department3.30pm-5.40pmThe Law Society of Singapore

28 April 2015Recent Developments in the Singapore Legal IndustryOrganised by the Continuing Professional Development Department12.30pm-1.30pm100 High Street, The Treasury

30 April - 2 May 2015Annual Malaysia/Singapore Bench & Bar Games 2015Organised by the Sports Committee

Upcoming Events13 & 14 July 2015Module 1: Mediation: Strategic Confl ict Management for Professionals

3, 4 & 5 August 2015Mediation: Strategic Confl ict Management for Professionals (Module 2)

7 September 2015Associate Mediator Accreditation Assessment

13 November 2015Law Society Annual Dinner & Dance

05News


Diary and Upcoming Events

From the Desk of the CEO

Dear Member

We are proud to announce that Team Singapore has won the 46th Annual Bench & Bar Games held in Singapore from 30 April to 2 May 2015. Out of 15 competitive sports and three non-competitive games played, the fi nal score came in at Team Singapore 9.5 and Team Malaysia 5.5. Our congratulations go out to all the athletes for their excellent performance this year, which enabled us to bring the Judges Cup back to Singapore during our SG50 Jubilee Year!

The Games would not have been possible without a large group of people who worked tirelessly behind the scenes to make this event a success. Our Sports Committee, supported by our Membership Services team at the Secretariat, have spent the last few months toiling over the organisation of the Bench & Bar Games. Credit goes to the Sports Committee, the individual conveners of the 18 sports and all players and offi cials, for training hard and gearing up for the much anticipated games. Many of the intensive training sessions ramped up as early as December 2014, with some sports training all year round. The passion and commitment of all our sportsmen has been extremely inspiring, with some sports organising their own friendly matches against other bar associations, to gear up for the Bench & Bar Games. In addition, the close co-operation between our Bench and our Bar over sports (and a common goal!) has continued to grow over the years, and we look forward to deepening these ties going forward.

In addition to the Bench & Bar Games, our Membership Services team supports Council on several less high profi le but no less important events. These events include the regular bi-monthly Council luncheons with members at the State Courts Bar Room. These lunches have been a good opportunity for members to meet with Council members and an avenue by which to share feedback with the Law Society. Dates and details of the lunches are put out through our e-mail blasts and on announcements in the Bar Rooms. Please do sign up and join us for lunch if you are available.

Our Membership Services team also works hard to ink sponsorship arrangements with a myriad of corporate organisations for the benefi t of members. Previous and current retail and lifestyle privileges include preferential rates at hotels locally and abroad, attractive dining benefi ts and IT software packages. Information on the latest membership privileges can be found in the weekly eJus News bulletin and on the Law Society website. Our team looks forward to bringing you other promotions and benefi ts throughout the year.

Tan Su-Yin Chief Executive Officer The Law Society of Singapore

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CEO's Message

Law Society Members Remember Mr Lee Kuan Yew

Upon the passing of our founding father Mr Lee Kuan Yew on 23 March 2015, the Law Society opened a Condolence Book for members to pen their tributes and condolences during the week of national mourning. Two hundred and sixty fi ve members took time off their schedules to come to the Law Society offi ce to spend moments in thought, as they expressed their heartfelt gratitude and sadness, and pondered the loss to our nation.

We were honoured to invite Mrs Lee Suet Fern, Senior Director of Morgan Lewis Stamford LLC and daughter-in-law of the late Mr Lee to the Law Society on 14 April 2015, where President Mr Thio Shen Yi, SC, presented the three Condolence Books to Mrs Lee. At the simple ceremony Mrs Lee thanked members for their kind thoughts in remembering Mr Lee. She said, Id like to think that all his skills as a lawyer stood him in good stead as a leader. Because a lot of the skills that we have, the ability to persuade, the ability to bring people with us, the clear thinking, the logic; a lot of the skills that make for a good lawyer helped make him the wonderful leader that he is.

The Law Gazette will be publishing some of the tributes from members in its SG50 edition in August. Read the In Memoriam for Mr Lee on page 50 of this issue.

The Condolence table at the Law Society. We are grateful to Alice Chan and Irene of Alice Tailoring for sewing the table cloth at short notice at no charge.

President Mr Thio Shen Yi, SC, presenting the Condolence Books to Mrs Lee Suet Fern

08News


Condolence Book Signing

Mr Thio and Mrs Lee reading the messages in the Condolence Books

09News



10News



Introduction

Since the start of the year, the legal fraternity has been involved in much debate. There has been the on-going discussion about the glut of lawyers in Singapore. There was also a big debate over the dropping of certain UK universities from the approved list of overseas law schools. These discussions have spurred much thought about the attractiveness of lawyering as a career (especially among fresh-faced undergraduates) and the changing role of lawyers in society.

Thus, it was fortuitous that on Friday, 13 March 2015, the Young Members Chapter under the Professional Affairs Committee of the Singapore Academy of Law and SCCA PEERS Sub-Committee jointly organised the Singapore Legal Career Forum 2015, entitled, Being a Lawyer in the Next Five Years. Mirroring the on-going discussion in the wider fraternity, the aim of the Forum was to give those present an idea about the changing role of Singapores lawyers amidst the fast-evolving legal landscape. Held

at the Viewing Gallery on the eighth fl oor of the Supreme Court, the impressive skyline of the Central Business District provided a fi tting backdrop to the Forum.

The Forum brought together a panel consisting of distinguished practitioners from different fi elds of legal work. The high-powered panel, chaired by the Honourable Justice Quentin Loh from the Supreme Court, consisted of: the Honourable Judicial Commissioner Chua Lee Ming, Mr Harpreet Singh Nehal, SC (Managing Partner, Cavenagh Law LLP), Mr Adrian Tan (Director, Stamford Law Corporation (now known as Morgan Lewis Stamford LLC)), Mrs Stefanie Yuen Thio (Joint Managing Director, TSMP Law Corporation), and Mr Wong Taur-Jiun (President, Singapore Corporate Counsel Association).

Local Lawyers, Global Practitioners

Kicking off the forum, Mr Singh spoke about where business opportunities were going to be, and what skill-sets would be needed to make the most of such opportunities. He

Th e Changing Role of Lawyers in the Next Few Years: Singapore Legal Career Forum 2015

From left to right: Mr Kabir Singh, Mrs Stefanie Yuen Thio, Mr Adrian Tan, the Honourable Judicial Commissioner Chua Lee Ming, the Honourable Justice Quentin Loh, Mr Wong Taur-Jiun, Mr Harpreet Singh Nehal, SC, Ms Thng Shin Min

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Legal Career Forum

fi rst reminded the audience to think about where the real lawyering opportunities were going to be in 15 to 20 years, rather than deciding ones career path based on short-term interests.

With the region becoming the worlds next economic centre of gravity, the real opportunities in lawyering were going to be cross-border in nature. In particular, these opportunities would be Asia-centric. Further, given the nature of Asian economies, areas such as international investment, construction, energy and resources, international regulatory work, and international dispute resolution would be fertile areas for growth.

Thus, lawyers had to prime themselves with skills that would help them take advantage of these opportunities. Besides having profi cient lawyering skills, a crucial differentiator would be the willingness to spend time outside of Singapore. This was because, Mr Singh noted, the real opportunities to shine will lie in places that right now might seem less comfortable compared to Singapore. Moreover, lawyers should have a broad mindset, cross-cultural awareness, and business skills. This meant that lawyers had to read widely, be able to work well with cross-cultural teams, develop long-term skills by thinking like a businessman, and understand how macroeconomic and geo-political events could impact business.

Adding on to Mr Singhs views, Mrs Yuen Thio said that practitioners had to learn how to be technology lawyers. In other words, lawyers had to understand how technology could enable or disrupt clients businesses. Mrs Yuen Thio also noted that Singapore lawyers were no longer the lowest rung in the global legal pecking order. Increasingly, Singaporean lawyers were heading international teams. This meant that one had to be a good leader and manager, on top of being a good worker.

Being Adaptable Decision-makers

The notion of being a good leader also resonated strongly in Mr Wongs views. Representing the perspectives of in-house counsel, Mr Wong pointed out that in-house counsel was, more than anything else, about solving problems. Unfortunately, Mr Wong noted that people nowadays like to give everyone else options, and nobody wants to make a decision. Thus, to Mr Wong, the most important quality of lawyers was to be able to make good decisions.

Furthermore, Judicial Commissioner Chua observed that in-house work was another hotbed of lawyering opportunities. The in-house legal profession continues to develop and the demand for in-house counsel will increase. Tying the

initial discussion together, Chua JC pointed out that law is a fl exible discipline which equips one to work in different fi elds. Chua JC reminded the audience to be adaptable and to be willing to take up any opportunity that came ones way.

Upcoming Changes in the Next Ten Years

A Change in How Clients View Lawyers

In response to a question by Justice Loh, Mrs Yuen Thio quipped that lawyers were no longer treated as Gods. The idea that people went to lawyers to receive sage advice was no longer relevant today. Rather, clients today saw lawyers as just another service provider. Clients expect lawyers to help them look at their situations, and explain the best way to sort things out. Thus, for lawyers to develop long-term business relationships with clients, lawyers had to adopt a client-centric, service-minded approach.

Adapting to Computerisation and Commoditisation

A big topic that garnered discussion was the commoditisation and computerisation of work. The fear was that this would end up diminishing the demand for lawyers. For example, as Justice Loh pointed out, using the example of IBMs Watson supercomputer, data-mining could already be done so well by computers, at a fraction of the cost of hiring three trainees to do the same amount of work. Would law fi rms and clients still need lawyers?

Thankfully, the answer was that lawyers would still be in demand. Lawyers must, however, be prepared to change their mindset fundamentally. With regard to commoditisation of legal work, Chua JC noted that lawyers must upgrade themselves to be as productive and effi cient as possible. To make his point, Chua JC referred to an article about the former General Counsel of Kia who developed a test to assess the digital productivity of lawyers (how effi cient they were in using productivity tools, like Microsoft Word). More than half of the lawyers who took the test failed. Thus, lawyers had to do a lot more to ensure that they provide their clients more bang for the buck.

Mrs Yuen Thio added that everyday work will get commoditised, but what law fi rms need to provide as much as possible is customisable work in other words, work that computers and non-lawyers could never do. Computers, for example, still could not devise a good litigation strategy for clients. They could not tell clients how to best frame their case. Thus, as long as lawyers were able to tap on the power of computers to enhance their services, there was no need to be afraid. Moreover, as Mr Wong noted, computers could never completely replace humans. That is because,

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Legal Career Forum

to build a sustainable practice, law fi rms would still need to groom their own trainees and associates to be successful lawyers and directors in the future.

To have a leg up over others with regard to experience in Court, Mr Tan suggested trying the public service route in other words, becoming a DPP in the AGC. To Mr Tan, while this was not a route to riches, it would give young lawyers a good grounding as regards Court processes. Mr Tan also warned that traditional law fi rms may one day become extinct. Thus, to him, it also made sense to explore opportunities provided by international law fi rms in Singapore.

How Law Students and Lawyers Can Respond to the Changing Structure of the Legal Industry

Responding to a question about changes in the structure of the legal industry, Mr Singh noted that the legal industry in Singapore is experiencing substantial change, with local law fi rms facing increasing competition and reviewing their

growth strategies to remain relevant and competitive for the longer term.

In his view, fi rms that focused purely or heavily on the domestic Singaporean market would fi nd themselves plateauing and risk missing the real growth opportunities cross-border work. Given shifting economic trends and growth opportunities, he foresees increased tie ups between Singaporean and international fi rms. Adding on to Mr Singhs views, Mrs Yuen Thio believed that overseas tie-ups would help the partnering fi rms build on each others resources to serve a larger client base.

With this glimpse into the future of the legal industry, Mr Singh encouraged law students and young lawyers to pursue opportunities with fi rms that had a systematic growth strategy. Nonetheless, Mrs Yuen Thio added a touch of pragmatic idealism when she counselled law students to fi nd a law fi rm that allows them to end each day a better lawyer than they started it.

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Legal Career Forum

Mr Wong added that law students and young lawyers had to be aware of their personal branding. To Mr Wong, the reality of practice was that, regardless of ones brilliance, one would probably still not get far staying in a relatively unknown fi rm. Getting into well-known fi rms adds to personal branding, however, that also meant having the pre-requisite abilities and potential to do so.

Turning from big and medium-sized fi rms to small fi rms, Mr Singh believed that there was no need to fear for the viability of small fi rms in Singapore. This was because small fi rms would continue to play a key role of providing legal services that were accessible to many people in Singapore.

Where and What Kind of Education Should Lawyers Seek?

On to the topic of hiring, the panel touched on two topics: fi rst, whether there was a need to expand ones knowledge base, and second, the removal of approved overseas universities.

In response to a question of whether it was prudent to learn things outside of law through a second degree, Mrs Yuen Thio pointed out that it was ultimately up to each individual. This was because it was more important to focus on what one was personally interested in, and what one thought would make him or her, a better thinker and person.

Mr Singh and Mr Wong, however, pointed out that there were specifi c areas that could be useful to study. Mr Singh felt that it was useful for lawyers to be dual qualifi ed in Singapore law and either English or New York law. This was tied to his belief that the real growth opportunities of the future would be cross-border in nature. Similarly, Mr Wong advised the audience to be able to speak and understand the lingo of ones clients. In that respect, an MBA could be helpful.

On the issue of approved overseas universities, the panel had a consistent view: it did not substantially matter if one came from a local or overseas university. This was for three reasons. First, fi rms were on the lookout for people who had good aptitudes and were a good fi t with the fi rm, not necessarily the university name that appeared on their CV. Second, fi rms were suffi ciently sophisticated to judge people by what they brought to the table. Third, even if ones school were taken into account at the point of entry, a lawyer would eventually be judged by his/her ultimate performance at work. After all, as Mr Tan, pointed out, partners and fi rms quickly forget which university you come from. This must come as a welcome relief to everyone, especially to overseas law graduates. Nevertheless, Chua JC raised a

caveat (as was the case with anything that had to do with law): in practice, HR (especially in large organisations) may fi lter and short-list applicants based on their degrees. As a result, talented individuals may not have the opportunity to be interviewed. Chua JC noted that the short-listing criterion depends on each organisations policies.

A Word of Encouragement from the Panellists

Justice Loh wrapped up the entertaining and informative discussion by asking the panellists for their concluding thoughts. In response, Mr Wong reminded the audience to pursue their dreams if they could afford it and if their circumstances allowed them to do so. This was because everybody is only young once.

Mr Singh noted that in spite of the uncertainties that lay ahead, young lawyers should not be overly anxious or fearful. After all, as he quipped, life always has a way of working out. He reminded everybody that being legally-trained made lawyers one of the most adaptable groups of people. He also reminded the attendees to pursue their long-term goals, and not be afraid to take the road less travelled.

Mrs Yuen Thio had perhaps the most heart-warming advice of all: Do something that you love, and live life with the goal that you want to know that when you look back, youre happy about the journey that you walked. Life is made up of the relationships youve formed, the friends youve made, the times youve had. If you live your life every day with that in mind, then thats fi ne. Do something thats for you. Stand up for what you believe in.

Concluding Th oughts

As Mrs Yuen Thio ended the discussion with that sentence, I almost expected the audience to actually stand up and clap such were the conviction in her words. It was an inspiring fi nish to an informative and entertaining session. Even as a salary-less student, the $20 admission fee I had paid felt fully justifi ed. It was a meaningful night spent interacting face-to-face with so many formidable and respectable individuals. I thank the Academy and SCCA for putting the Singapore Legal Career Forum together for the legal fraternity.

Lee Kok Thong Graduating Senior SMU School of Law

14News


Legal Career Forum

With the Singapore Institute of Legal Educations (SILE) implementation of Phase 2 of the CPD Scheme from 1 January 2015, we would like to remind all advocates and solicitors (including those practising as locum solicitors) of your CPD Requirements. An Advisory from SILE was sent in December 2014 to all advocates and solicitors who need to fulfi l the mandatory CPD requirement for 2015. The same was published on SILEs website (since December 2014) and eJus News in January 2015.

All advocates and solicitors (including those practising as locum solicitors) admitted to the Singapore Bar on or after 2 January 2010 (Newly-Qualifi ed Lawyers) OR Senior Lawyers admitted to the Singapore Bar between 2 January 2000 and 1 January 2010 (both dates inclusive) and holding a Singapore practising certifi cate (Practising Certifi cate) must meet the CPD Requirements set out in the CPD Rules for this CPD year, ie 1 January 2015-31 December 2015.

Newly-Qualifi ed Lawyers

If you are a Newly-Qualifi ed Lawyer, between 1 January 2015 and 31 December 2015, you are required to fulfi l the following CPD Points Requirements:

a. If you hold a Practising Certifi cate for more than eight months

You need to obtain 16 CPD Points. At least eight must be Public CPD Points

b. If you hold a Practising Certifi cate for more than fi ve months up to eight months

You need to obtain eight CPD Points. At least four must be Public CPD Points

c. If you hold a Practising Certifi cate for fi ve months or less

You do not need to obtain any minimum CPD Points

Senior Lawyers

If you are a Senior Lawyer, between 1 January 2015 and 31 December 2015, you are required to fulfi l the following CPD Points Requirements:

a. If you hold a Practising Certifi cate for more than eight months

You need to obtain eight CPD Points. At least four must be Public CPD Points

b. If you hold a Practising Certifi cate for more than fi ve months up to eight months

You need to obtain four CPD Points. At least two must be Public CPD Points

c. If you hold a Practising Certifi cate for fi ve months or less

You do not need to obtain any minimum CPD Points

The Law Society of Singapore organises CPD activities throughout the year to assist members to achieve the required public and private CPD points. Please refer to the CPD portal for more information about our suite of programmes: http://www.lawsoc.org.sg/. For enquiries about our CPD programmes, please contact the CPD team at: [email protected]/6538 2500.

Know Your CPD Requirements Phase 2 of CPD Scheme

15News


CPD Requirements

Consent: Time to Say Goodbye to Bolam and Sidaway?

Earlier this year, the UK Supreme Court handed down a landmark decision modernising the law on consent with a focus on patient autonomy, and changing the doctor-patient relationship. This article examines the UK decision and discusses its implications in Singapore.

The medico-legal community in the UK was in a terrifi c tizzy when the UK Supreme Court issued its judgment in Montgomery v Lanarkshire Health Board1 (Montgomery) on 11 March 2015.

Before Montgomery, the law on consent was established by two cases: Bolam v Friern Hospital Management Committee [1957] WLR 582 (Bolam), and Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 (Sidaway).

Under the Bolam test, a doctor would not be found to be negligent if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.2 In Sidaway, a majority of the House of Lords confi rmed the application of the Bolam test, which had been applied in the context of the diagnosis and treatment of a patient, to a failure to advise a patient of risks involved in treatment.

In Montgomery however, the UK Supreme Court reversed the judgments at fi rst instance and on appeal, making clear that in the UK, the doctors duty to advise her patient of the

risks of proposed treatment falls outside the scope of the Bolam test.3

Background

In 1999, Nadine Montgomery, the appellant, became pregnant with her fi rst child. She was 1.55 metres tall and suffered from insulin dependent diabetes mellitus. Women suffering from diabetes are likely to have babies that are larger than normal, and they are at increased risk of problems such foetal abnormalities and shoulder dystocia (the babys shoulders becoming stuck above the pelvis). For these reasons, Mrs Montgomerys pregnancy was defi ned as a high risk pregnancy requiring intensive monitoring.

During her pregnancy, Mrs Montgomery attended regularly at a combined obstetric and diabetic clinic at Bellshill Maternity Hospital. One Dr McLellan, a consultant obstetrician, was in charge of her antenatal care and labour. Ultrasound examinations were performed regularly to assess foetal size and growth.

At her 36-week appointment, Mrs Montgomery expressed concern about the size of her baby and that the baby would be too big to deliver vaginally, and in her evidence, Dr McLellan accepted that Mrs Montgomerys concerns had been raised with her more than once.

At trial, Dr McLellan gave evidence that the risk of shoulder dystocia in diabetic mothers was 9-10 Per cent. In a vast majority of shoulder dystocia cases, the shoulder dystocia was dealt with by simple procedures. The chance of a severe injury to the baby during such a delivery was approximately 1 in 500 for a brachial plexus injury, and of that number, approximately 1-2 per cent would be at risk of cerebral palsy.4

However, Dr McLellan said that her practice was not to spend any time discussing the potential risks of shoulder dystocia. This was because the risk of a grave outcome for the baby was very small. Dr McLellan said that if the risk of shoulder dystocia was mentioned to every diabetic

16Feature


Continued on page 20

patient, and the very small risk of the baby dying in labour was mentioned to any mother, then everyone would ask for a caesarean section, and it was not in the maternal interests for women to have caesarean sections. Of course, if Mrs Montgomery had raised the issue of risks with vaginal delivery, Dr McLellan said that she would have advised Mrs Montgomery about the risk of shoulder dystocia. Since Mrs Montgomery had not done so, all Dr McLellan said to Mrs Montgomery was that she should be able to deliver vaginally, and that if there were diffi culties during labour, a caesarean section could be performed. Dr McLellan contended that Mrs Montgomery accepted her advice, and that if Mrs Montgomery had requested for an elective caesarean section, Mrs Montgomery would have been given one. Additionally, Dr McLellan decided that as a result of these expressions of concerns, it was not psychologically benefi cial for Mrs Montgomery to have an ultrasound scan at the 38th week.

Soon after her 38th week of pregnancy, Mrs Montgomery underwent induction of labour at the Hospital. After some time, the babys head was delivered. However, for the next 12 minutes, Dr McLellan attempted without success to deliver the rest of the babys body. The babys shoulders were obstructing delivery (shoulder dystocia), and during those 12 minutes, his umbilical cord was occluded, depriving him of oxygen. After his birth, the child was diagnosed as suffering from cerebral palsy. He had also suffered a brachial plexus injury resulting in paralysis of the arm.

Mrs Montgomery brought an action for damages in the Scottish Courts on behalf of the child for the injuries he sustained. She argued that she should have been informed of the risk of shoulder dystocia, and that she should have been offered and advised about the alternative of delivery by caesarean section. If she had been informed of the risks of shoulder dystocia, she would have wanted Dr McLellan to explain what that meant, and the possible risks of the outcomes. If she had considered that it was a signifi cant risk to her, she would have elected to deliver her baby by caesarean section.

UK Supreme Court

All seven Judges of the UK Supreme Court allowed Mrs Montgomerys appeal. Lord Kerr and Lord Reed gave the leading judgment, with which Lady Hale, Lord Neuberger, Lord Clarke, Lord Wilson and Lord Hodge agreed. Lady Hale gave a concurring judgment.

In their extensive review of the post-Bolam cases relating to informed consent, Lord Kerr and Lord Reed commented that the views and circumstances of an individual patient may affect their attitude towards a proposed form of treatment and

the reasonable alternatives, and that the relative importance attached by patients to the consequences (or lack thereof) of medical treatment will vary as between patients. They said that [t]he doctor cannot form an objective medical view of these matters, and is therefore not in a position to take the right decision as a matter of clinical judgment.5

Lord Kerr and Lord Reed criticised the signifi cance attached in Sidaway to a patients failure to question the doctor as profoundly unsatisfactory, taking the view that this approach would lead, as in the case before them, to the drawing of excessively fi ne distinctions between questioning and expressions of concern falling short of questioning.6 They said that there was something unreal about placing the onus of asking upon a patient who may not know that there is anything to ask about. In their view, it was those who lacked knowledge about the risks they faced, and who were as a consequence unable to ask specifi c questions about those risks and instead expressed their anxiety in more general terms, who were in the greatest need of information. The Sidaway approach also disregarded the social and psychological realities of the relationship between a patient and her doctor, where patients might feel too intimidated or inhibited to question their doctor.

Lord Kerr and Lord Reed noted that the English Courts had been moving away from Sidaways adoption of the Bolam test as the measure of a doctors duty to disclose information about the potential risks of proposed medical treatment, and towards recognising the right of patients to know of signifi cant risks in the treatment proposed to them.7

In their view, it had become clear since Sidaway that the paradigm of the doctor-patient relationship implicit in the speeches in that case [had] ceased to refl ect the reality and complexity of the way in which healthcare services are provided or the way in which the providers and recipients of such services view their relationship.8 Patients had become widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession, and were widely treated as consumers exercising choices. It had also become far easier and far more common for members of the public to obtain information about symptoms, investigations, treatment options risks and side-effects. Given the changes in the provision of healthcare services and society, [i]t would therefore be a mistake to view patients as uninformed, incapable of understanding medical matters or wholly dependent upon a fl ow of information from doctors.9

All these social and legal developments pointed away from a model of the relationship between the doctor and the patient based upon medical paternalism, and pointed away

17Feature


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from a model based upon a view of the patient as being entirely dependent on information provided by the doctor.10 What they pointed towards was an approach to the law which treats patients so far as possible as adults capable of understanding that medical treatment is uncertain of success and may involve risks, of accepting responsibility for the taking of risks affecting their own lives, and of living with the consequences of their choices. This approach entailed a duty on doctors to take reasonable care to ensure that patients are aware of material risks inherent in treatment.11

Lord Kerr and Lord Reed continued to hammer nails in Bolams coffi n, commenting that because the extent to which a doctor may be inclined to discuss risks with a patient is not determined by medical learning or experience, the application of the Bolam test could result in the sanctioning of differences in practice, which would be attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients autonomy.12

Finally, Lord Kerr and Lord Reed set out what they opined was the correct position in relation to the risks of injury involved in treatment:13

An adult of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patients position would be likely to attach signifi cance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach signifi cance to it14 (emphasis added).

Lord Kerr and Lord Reed added that the assessment of whether a risk is material is fact-sensitive and cannot be reduced to percentages.15 The factors affecting the signifi cance of a given risk may include the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefi ts sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. Also, the therapeutic exception should not be abused.16

On the facts, Lord Kerr and Lord Reed took the view that Dr McLellan should have advised Mrs Montgomery of the risk

of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section.17 Even though the risk that the baby might suffer a grave injury was small, shoulder dystocia was a major obstetric emergency requiring procedures which might be traumatic for the mother and involving signifi cant risks to her health. In stark contrast, the risk involved in an elective caesarean section for the mother was extremely small, and for the baby, virtually non-existent.

Lord Kerr and Lord Reed concluded that if Dr McLellan advised Mrs Montgomery of the risk of shoulder dystocia and discussed with her the potential consequences, and the alternative of a caesarean section, Mrs Montgomery would probably have elected to deliver by caesarean section.18 The baby would then have been born unharmed.

In her judgment, Lady Hale emphasised the right of autonomy, the freedom to decide what shall and shall not be done with ones body. She said that the issue is not whether enough information was given to ensure consent to the procedure, but whether there is enough information given so that the doctor is not acting negligently, and is giving due protection to the patients right of autonomy.19

Following from this, it is not possible to consider a particular medical procedure in isolation from its alternatives; suffi cient information must be given so that arguments for and against each of the options can be considered.20 In pregnancy, for example, doctors should volunteer the pros and cons of each option where either the mother or the child is at heightened risk from a vaginal delivery.21

In Lady Hales opinion, Dr McLellans view that it was not in the interests of women to have caesarean sections, did not look like a purely medical judgment, but a value judgment.22 Lady Hale opined that once purely medical considerations are departed from, and value judgments are involved, the Bolam test of conduct supported by a responsible body of medical opinion becomes quite inapposite.23

Lady Hale said that a patient is entitled to take into account their own values, and they are entitled to the information which will enable them to take part in deciding on the treatment they are to receive.24 The medical profession must respect the patients choice, unless the patient lacks the legal capacity to decide.

Commentary

In Singapore, there appears to be a divergence between what the position might be in law, and what the position is in medical practice. In 2002, the Singapore Court of Appeal

20Feature


affi rmed in Khoo James v Gunapathy d/o Muniandy [2002] 2 SLR 414 (Gunapathy) that the Bolam test applied to the issue of advice. Notwithstanding that the Court of Appeal clarifi ed in Gunapathy that it was not actually making a pronouncement on the doctrine of consent, since the issue had not been fully addressed in submissions,25 a line of subsequent High Court cases followed, applying the Bolam test to the issue of advice. 26 The High Court considered itself bound by Gunapathy.

In Montgomery, Lord Kerr and Lord Reed noted that developments in the doctor-patient relationship, seeing patients as persons holding rights and consumers exercising choices had been refl ected in the guidance given to doctors by the General Medical Council (GMC) (a body similar to the Singapore Medical Council (SMC)).27 To the extent that guidelines issued by the SMC on consent can be said to be an indication of the attitude of society towards patient autonomy at that time, it is submitted that the SMC had as early as 2002 when it published its Ethical Code and Ethical Guidelines, recognised patient autonomy as being as broad as described in Montgomery:

4.2.2 Informed consent

It is a doctors responsibility to ensure that a patient under his care is adequately informed about his medical condition and options for treatment so that he is able to participate in decisions about his treatment. If a procedure needs to be performed, the patient shall be made aware of the benefi ts, risks and possible complications of the procedure and any alternatives available to him

4.2.4 Patients right to information and self determination

4.2.4.1 Right to information

A doctor shall provide adequate information to a patient so that he can make informed choices about his further medical management. A doctor shall provide information to the best of his ability, communicate clearly and in a language that is understood by the patient.

A doctor shall respect a patients choice of accepting or rejecting advice / treatment that is offered, after steps have been taken to ensure that there is no language barrier and the patient understands the consequences of his choice 28

It is submitted that this breadth of patient autonomy in Singapore has also been recognised by the medical profession in newsletters published in the Singapore Medical Association (SMA).29 In their July 2011 newsletter, it was noted that [r]ecent judgments in hearings of professional disciplinary tribunals have suggested a move to a more patient-centred standard of disclosure, as being the preferred professional standard, and that the professional standards of consent have clearly moved [so that] patients must be given options to choose, and not just information of one line of treatment.30 Their July 2013 newsletter listed information that a patient may need to know and understand in making an informed decision, including the risks and likelihood of risks materialising, and the risks and benefi ts of other options, and exhorted medical practitioners to discuss serious risks, even those of low frequency.31

Our High Court had commented in DConceicao Jeanie Doris v Tong Ming Chuan [2011] SGHC 193 that the growing emphasis on human rights and autonomy in the UK could be attributed to the European Convention of Human Rights (ECHR), which the English Courts were bound by, but not the Singapore Courts.32 With respect, it is submitted that there is a difference between diagnosing and treating, and discussing with a patient the risks of a treatment plan and possible alternatives. As recognised by the UK Supreme Court and the High Court of Australia, the former involves the exercise of professional skill and judgment and is a matter falling within the expertise of members of the medical profession.33 The latter does not depend upon medical standards or practices, and does not involve the exercise of any special medical skill, the kind with which the Bolam test is concerned.34 Diagnosis and treatment is something that is performed on the patient, whereas medical advice is meant to enable the patient to make an informed decision.35

The UK Supreme Court added, rather scathingly, that because the extent to which a doctor may be inclined to discuss risks with a patient is not determined by medical learning or experience, the application of the Bolam test to the issue of advice was liable to result in the sanctioning of differences in practice which are attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients.36

Practical Implications in Singapore

It may take some time for a defi nitive ruling by our Court of Appeal on whether the Bolam test should continue to be applicable to medical advice, or whether society has changed such that a patients right to decide whether or not to submit to the medical treatment proposed now takes the

21Feature


forefront, giving rise in turn to their right to know of material risks inherent in the treatment and alternatives.

Meanwhile, it is submitted that medical practitioners in Singapore should adopt a patient-centred approach in obtaining consent, with the aim of empowering patients to make their own decisions about important procedures to be undertaken on their bodies on the basis of information about material risks relevant to them,37 bearing in mind that what may seem immaterial to them because of the low probability of the risk eventuating may be material to the particular patient because of the nature of the risk involved.38

The test of materiality has already been set out above39 (refer to the portion in bold), and the factors affecting the signifi cance of a risk set out immediately after. Additionally, if it is agreed that patient autonomy and patient empowerment should now guide the extent of disclosure to be performed, then it is suggested that medical practitioners consider informing patients also of any information that the medical practitioner himself or herself considers material, taking into account the nature of the matter to be disclosed, the nature and/or the necessity of the proposed treatment, the patients desire for information,40 the patients health and temperament, alternative sources of advice or treatment, and general matters such as the patients occupation.

The UK Supreme Court said that the doctor must aim to ensure that the patient understands the seriousness of his or her condition, the anticipated benefi ts and risks of the proposed treatment, and any reasonable alternatives.41 It would follow that a doctors obligation will not be fulfi lled by bombarding the patient with technical information which they cannot be expected to grasp;42 the information provided must be comprehensible.43 It may not be discharged by simply dumping information leafl ets on patients; there must be dialogue.44

But what if the patient does not wish to have such a discussion? The UK Supreme Court anticipated this possibility and said that the doctor would not be obliged to discuss the risks inherent in treatment with them. 45 After all, a request not to be given information is similarly an exercise by the patient of their autonomy.46

With respect to record keeping, it is submitted that it can now only be in the interests of doctors to take and keep detailed contemporaneous notes on the consent-taking process, as well as the patients attitude to discussing the risks inherent in treatment, and to advice. Doctors should note that the UK Supreme Court in Montgomery indicated that they will not be able to rely simply on a signature on a consent form as evidence that they had discharged their duty. 47

The Outer House of the Scottish Court of Session had observed more than ten years ago that medical records may not contain a complete record of events, and that hospital records are not maintained by lawyers or for the use of lawyers, but are maintained for medical purposes.48 The Court also said that the courts should not give any encouragement to the development of defensive record-keeping. Our own High Court has been cautious about rais[ing] the spectre of defensive medicine.49

The UK Supreme Court did recognise that the legal obligations they were imposing on doctors would be liable to result in defensive practices and an increase in litigation.50 However, the members of the UK Supreme Court were unanimous in their view that an approach which results in patients being aware that the outcome of treatment is uncertain and potentially dangerous, and in their taking responsibility for the ultimate choice to undergo that treatment, may be less likely to encourage recriminations and litigation, than an approach which requires patients to rely on their doctors to determine whether a risk inherent in a particular form of treatment should be incurred.51

In any event, doctors in Singapore already appear to be aware that good medical documentation is essential in defending against negligence claims, and that it is in their interests to document material risks discussed with the patient.52 Perhaps the only questions are how much longer queues and waiting lists will grow from doctors spending more time in discussion with their patients, and how dramatic a rise there will be in the consultation fees of medical practitioners in private practice to account for the greater amount of time spent with each patient at consultations.53

*The author is grateful to Dr Brenda McGivern, Mr Palaniappan Sundararaj and Ms Vanessa Lim for their helpful suggestions and comments. All errors are the authors own.

Notes

1 [2015] 2 WLR 768..

2 Bolam v Friern Hospital Management Committee [1957] WLR 582 at 587.

3 See Montgomery v Lanarkshire Health Board [2015] 2 WLR 768 at [86] (Montgomery).

4 See Montgomery v Lanarkshire Health Board [2010] CSOH 104 at [171].

5 Montgomery, supra (note 3 above) at [46].

6 Ibid, at [58].

7 Ibid, at [69].

Alicia Zhuang* Australian Lawyer Advocate & Solicitor E-mail: [email protected]

22Feature


8 Ibid, at [75].

9 Ibid, at [76].

10 Ibid, at [81].

11 Ibid, at [82].

12 Ibid, at [84].

13 Ibid, at [87].

14 In Rosenberg v Percival [2001] HCA 18, Gummow J commented at [79] that the equivalent limb in the equivalent test in Rogers v Whitaker (1992) 175 CLR 479 (Rogers) recognises that the particular patient may not be a reasonable one, and may have a number of unreasonable fears or concerns.


16 Ibid, at [91].

17 Ibid, at [94].

18 Ibid, at [104].

19 Ibid, at [108]. See also Mrs A v East Kent Hospitals University NHS Foundation Trust [2015] EWHC 1038 at [90].

20 Ibid, at [109].

21 Ibid, at [111].

22 See Montgomery, supra (note 3 above) at [114]-[115].


24 Ibid.

25 See Khoo James v Gunapathy d/o Muniandy [2002] 2 SLR 414 at [142]-[143] (Gunapathy). Contrast Tong Seok May Joanne v Yau Hok Man Gordon [2013] 2 SLR 18 at [60], at which Andrew Ang J opined that the law in Singapore [was] clear, and that the Court of Appeal in Gunapathy had considered and approved the Bolam test in the context of giving advice.

26 See for eg Surender Singh s/o Jagdish Singh v Li Man Kay [2010] 1 SLR 428; DConceicao Jeanie Doris v Tong Ming Chuan [2011] SGHC 193 (DConceicao) and Tong Seok May Joanne v Yau Hok Man Gordon [2013] 2 SLR 18.

27 See Montgomery, supra (note 3 above) at [77]-[79].

28 It is submitted that the adequacy of the information provided should no longer (if it were ever so) be measured against the standard of care set out in Bolam, and that following Montgomery, the standard of care and hybrid subjective-objective test set out in Montgomery should be adopted.

29 See for eg T Th irumoorthy, Th e Legal and Professional Standards of Consent in Clinical Practice 7 Singapore Medical Association News 43, 20; T Th irumoorthy, Consent in Medical Practice 1 45 Singapore Medical Association News 6, 44; T Th irumoorthy, Consent in Medical Practice 245 Singapore Medical Association News 7, 11.

30 T Th irumoorthy, Th e Legal and Professional Standards of Consent in Clinical Practice 43 Singapore Medical Association News 7, 21. See Eu Kong Weng v Singapore Medical Council [2011] 2 SLR 1089 at [5] where it was noted that the Disciplinary Committee (DC) of the Singapore Medical Council (SMC) had taken the view that a doctor must explain to the patient all the options (of which he has knowledge) and risks involved before treating the patient, and Low Cze Hong v Singapore Medical Council [2008] 3 SLR(R) 612 at [83] where an extract of the verdict of the DC of the SMC was reproduced: Th e Committee also stresses the critical importance of patients understanding all options available, and the risks and benefi ts of these options, especially when treatment is elective.

31 T Th irumoorthy, Consent in Medical Practice 2 45 Singapore Medical Association News 7, 11-12.

32 DConceicao, supra (note 25 above) at [123]. See also Paul Tan, Biomedical Law and Ethics (2012) 13 SAL Ann Rev 89, p 91 where the author argues that [i]t is diffi cult

to see why [that] should mean that an individuals autonomy to decide whether to undergo treatment is either non-existent or should not be taken into account in formulating legal principles.

33 See Montgomery, supra (note 3 above) at [82]-[84]; Rogers, supra (note 13 above) at 489-490 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ.

34 Contrast Gunapathy, supra (note 24 above) at [3] and [144].

35 J Devereux, Its Just a Jump to the Left and then a Step to the Right: Developments post Rogers v Whitaker in the Law Relating to Failure by a Medical Practitioner to Advise of Risks (1998) 17(1) University of Tasmania Law Review 63, p 69.


37 See Tracey Carver and Malcolm Smith, Medical Negligence, Causation and Liability for Non-Disclosure of Risk: A Post-Wallace Framework and Critique (2014) 37(3) University of New South Wales Law Journal 972 p 973.

38 See F v R (1983) 33 SASR 189 at 192-193 per King CJ.

39 Cf. Rogers, supra (note 32 above) at 490; Video v Kennedy (1981) 124 D.L.R. (3d) 127, 133-134 (Ont. C.A.).

40 For eg the patient-plaintiff in Rogers, supra (note 32 above) was noted to have incessantly questioned the doctor as to possible complications, and to be keenly interested in the outcome of the suggested procedure, and the patient-plaintiff in Rosenberg, supra (note 13 above) was noted to have questioned her doctor closely about possible complications. Contrast NM v Lanarkshire Health Board [2013] CSIH 3 at [36] where Lord Eassie opined that a patients expression of generalized anxiety in advance of surgery or other medical procedure may appear to warrant only reassurance in reply.

41 See Montgomery, supra (note 3 above) at [90]. Contrast Michael Jones, Medical Negligence (Th ird edition, Sweet & Maxwell, 2003) at para 6-132, where the author suggests that the duty is not to make the patient understand, but to make a reasonable eff ort to communicate information to the patient.

42 Cf. NM v Lanarkshire Health Board, supra (note 39 above) at [41] where Lord Eassie pointed out that too much in the way of information or warnings may only serve to confuse or alarm the patient.

43 See Montgomery, supra (note 3 above) at [90].

44 Quaere, whether the doctors obligation would be discharged by delegating the duty to advise to, for example, nurses, and the extent to which it may be delegated.

45 See Montgomery, supra (note 3 above) at [85]. See also F v R, supra (note 37 above) at 193 where King CJ said that a doctor is not required to infl ict on his patients information which they do not seek and do not want.

46 See F v R, supra (note 37 above) at 193 per King CJ.


48 See Jean Antonucci or McConnnell v Ayrshire and Arran Health Board (Lord Reed, unreported 14 February 2001) at [28].

49 See for eg Gunapathy, supra (note 24 above) at [144].


51 See Montgomery, supra (note 3 above) at [93]. See also the insightful comment made to the blog post at (accessed 20 March 2015).

52 See for eg T Th irumoorthy, Consent in Medical Practice 1 45 Singapore Medical Association News 6; T Th irumoorthy, Consent in Medical Practice 2, 45 Singapore Medical Association News 7. See also T Th irumoorthy, Consent in Medical Practice 4, 45 Singapore Medical Association News 9, 15, where the author sets out aspects of the consent process and suggests that they be documented in the form of contemporaneous case notes.

53 Delegation of the duty, as suggested at note 43 above, may be a possible solution.

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An Off enders Lack of Antecedents: A Closer Look at its Role in Sentencing

This article examines the role an offenders lack of antecedents should play in the offenders sentencing. It is argued that all an offenders clean record should do is to reduce or obviate the need to effect specifi c deterrence in coming up with an appropriate sentence; by itself, it should not operate to support a departure from an established benchmark, nor justify a distinct discount in the overall sentence.

Introduction

Criminal Courts have to pass sentence on fi rst offenders on a daily basis. These are accused persons who have been convicted for an offence(s) but who are facing their fi rst brush with the law. In other words, they have a clean record; they do not have any antecedents. But what impact should this fi rst offender status have in a Courts consideration of the appropriate sentence?1 Is it a personal mitigating factor2 that operates to justify a discount in the overall sentence? Or is it just a neutral factor that should not have any relevance on the sentence?

It appears that a clear answer eludes this seemingly straightforward question. Criminal practitioners frequently cite an offenders lack of antecedents as a mitigating factor, and Courts have on occasion explicitly stated that they treat it as such.3 Contrastingly, there have also been cases where the Courts intimated that an offenders lack of antecedents

per se is merely a neutral factor.4 Furthermore, there is a line of cases5 which suggests that whether an offenders lack of antecedents is of mitigating value depends on the seriousness of the offence(s) involved and the public interest at stake.6

As observed by Andrew Ashworth, the concepts of aggravation and mitigation have tended to attract little close examination or theoretical discussion.7 Given what has been highlighted in the preceding paragraph, it is submitted that an offenders lack of antecedents is quite clearly one such sentencing consideration that has been overlooked and merits closer analysis. After all, whether a factor is deemed aggravating, neutral or mitigating can have a signifi cant impact on the sentence meted out, and thus it is vital that sentencers consider and apply factors in a uniform manner equality and fairness require sentencers to apply mitigating and aggravating factors consistently.8

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This article explores whether there is a defensible rationale to a Court considering an offenders lack of antecedents in sentencing, and fl owing from that, how exactly should the lack of antecedents affect the determination of the appropriate sentence. It will be argued that an offenders clean record should not be viewed as truly a mitigating factor that justifi es a distinct discount in the sentence passed, but rather, it simply signals that there is less or no need for a Court to aggravate the sentence by virtue of the need to effect specifi c deterrence. In this sense, an offenders lack of antecedents would be more accurately classifi ed as a neutral factor.

First Possible Justifi cation: Presence of Antecedents is an Aggravating Factor and Th us the Lack of it Should be Mitigating

There are three likely justifi cations as to why an offenders lack of antecedents may be commonly or intuitively viewed as a mitigating factor. The fi rst is that it is trite that the presence of an offenders antecedents, in particular relevant antecedents, is an aggravating factor.9 As such, the fact that such antecedents are absent should be treated as a mitigating factor. While such a proposition may be defensible in the past, it is no longer so in light of recent clear judicial exhortation that the absence of an aggravating factor does not ipso facto equate to the presence of a mitigating factor.10 Rather, it amounts to a neutral factor. On this basis, it may be argued that an offenders lack of antecedents is but a neutral factor.

To be sure, this argument that lack of antecedents is not a mitigating but merely a neutral factor has limited strength, since it considers only the categorisation of sentencing factors. The position that the absence of an aggravating factor does not equate to the presence of a mitigating factor does not necessarily preclude the fi nding that a factor can in fact be a mitigating one; one has to dig deeper to fi nd out whether there is any underlying reason as to whether lack of antecedents should affect the ultimate sentence.

Second Possible Justifi cation: Absence of Antecedents Refl ects Good Character, for which Credit should be Granted

This leads us to the second possible justifi cation, which is that an offenders clean record refl ects his past good character, and therefore credit, in the form of a discount to his sentence, should be given for that good character.11 While this argument does take us a little further towards a more in-depth understanding of whether lack of antecedents should affect ones sentence, it is submitted that this justifi cation is also not defensible. In the fi rst place, it has been pointed

out by some that the absence of a criminal record was not necessarily to be equated with positively good character.12 This makes sense if one considers that there may be those who have committed offences but who are fortunate enough to so far escape being caught, or those who may have the intention to commit offences but the opportunity never arose.

Even assuming ones clean record can be treated as evidence of good character, it is diffi cult to see why credit should be accorded for that. Surely it is the duty of every person to not commit a crime,13 so why should a fi rst offender be in a sense commended and rewarded for not having offended before? For everyone else who lives their lives never committing any offence, it does not appear that equivalent credit is given in any other form.

Moreover, stronger evidence of good character of an offender can be seen where he or she has provided distinguished public service or services of substantial value to the community, and locally this has been recognised to be a valid mitigating factor.14 However, this social accounting approach has been seriously questioned by commentators, on the grounds that: (i) it is doubtful whether it is a Courts proper function to concern itself with such matters when it is passing sentence for the particular crime(s) committed;15 and (ii) positive social acts have an adventitious element opportunities to contribute to the community may arise by chance and nor are these opportunities equal across social strata.16 If the more apparent version of mitigation by dint of positive good character has been criticised, there is defi nitely reason to be sceptical about whether the weaker version, ie lack of antecedents, should provide any mitigating value.

Th ird Possible Justifi cation: Lack of Antecedents Suggests that the Accuseds Off ending was Out-of-Character

The third justifi cation is that an offenders clean record is evidence that his or her offending was out-of-character.17 The Court may hence infer that the offending is probably one-off, and that the offender is unlikely to re-offend.18 In my view, this justifi cation is much more tenable than the above two. Not only is it logical and has an intuitive appeal, that a fi rst offender is less likely to re-offend is also supported by empirical evidence. Although there appears to be no statistics on the recidivism rates of fi rst offenders (as compared to repeat offenders) in Singapore, studies done in other jurisdictions suggest that generally speaking, a fi rst offender is signifi cantly less likely than repeat offenders to re-offend. For instance, a 2004 study done in the US revealed that offenders with no criminal history have a two-

25Feature


year recidivism rate of 11.7 per cent.19 This is substantially lower than the rate for those with a criminal record, which is 22.6 per cent. Similarly, a 2008 study done in New Zealand showed that the re-conviction rate of fi rst offenders was 49 per cent, while that for recidivists was 78 per cent.20

But should the fact that an offender is unlikely to re-offend affect sentencing, and if so, in what way? It is submitted that that fact should affect sentencing in that there is less or even no need to take into account specifi c deterrence in deciding the appropriate sentence. In other words, there is little or no need to increase or add a component to the sentence to effect specifi c deterrence. In PP v Law Aik Meng,21 the High Court opined that specifi c deterrence seeks to instill in a particular offender the fear of re-offending through the potential threat of re-experiencing the same sanction previously imposed. Therefore, where an offenders offence was wholly out-of-character and this suggests the unlikelihood of him or her re-offending, specifi c deterrence fails to qualify as a relevant consideration, let alone a crucial one.22

Key Takeaways from Having Discerned the Most Defensible Justifi cation for Lack of Antecedents as a Sentencing Consideration

There are a number of key implications and takeaways arising from the above understanding of how an offenders lack of antecedents should impact sentencing. Firstly, the consideration acts to minimise or obviate the need to increase an offenders sentence by reason of the need to effect specifi c deterrence. If one were to consider the defi nition of a mitigating factor in the broadest possible sense, that is, a factor that tends to reduce the severity of an overall sentence,23 then an offenders lack of antecedents will qualify as a mitigating factor.

It should be underscored however, that the lack of antecedents in itself is not something that an offender should be given credit for, nor is it something that should work by justifying a distinct reduction from the usual benchmark sentence. In this sense, lack of antecedents is different from the true mitigating factors such as an offenders remorse, restitution, extreme ill-health or hardship, or provocation from victim etc, which do operate to justify a distinct departure from the benchmark.24 Hence, where a benchmark sentence exists for the offence involved, Courts should not mete out a lower sentence because of an offenders clean record per se. A reduction, if any, has to be justifi ed by some other mitigating factor(s). From this perspective, it would be more accurate to classify lack of antecedents as a neutral factor.25 At the risk of stating an obvious but additional point, where there are precedents which show a particular usual range of sentence for fi rst

offenders, then by reason of the need to decide like cases alike, an offenders lack of antecedents per se should also not justify a departure from that usual range.

Second, where there is no established benchmark or starting point sentence for a particular offence, then an offenders clean record simply signals that there is little or no need to factor in specifi c deterrence in deciding the appropriate sentence. The crucial question in such a situation is: what overall sentence for a fi rst offender is appropriate, taking into account the other sentencing rationales such as general deterrence, retribution, protection and rehabilitation, as well as the full spectrum of sentences enacted by Parliament.26 In particular, that there is minimal need to effect specifi c deterrence does not preclude a fi nding of a need to effect general deterrence. The latter turns very much on factors such as the seriousness of the offence and the public interest involved.27 Indeed, this approach neatly sheds light on why exactly Courts have held that where serious offences are concerned, an offenders clean record will be of little or no assistance to him.28 It is not so much that lack of antecedents may have changing mitigating value depending on the seriousness of the offence involved (which is a rather strange proposition). Rather, the effect of lack of antecedents is the same regardless of the offence, but the ultimate sentence varies as a result of the need to weigh in the other sentencing rationales (most usually general deterrence).

Finally, since lack of antecedents should only have an effect on the sentence because it is evidence that the accused has acted out-of-character, any countervailing evidence that evinces that the accused has in fact not acted out-of-character should negate such an effect. This would include instances where:

1. though it is the accuseds fi rst offence, there is evidence that the offence was premeditated;29

2. the fi rst offender is charged with multiple offences committed over a period of time;30

3. the fi rst offender is charged with an offence(s) that arose from a single incident and which is not premeditated, but there is evidence to show that the offending was otherwise not out-of-character (eg prior to the incident, the accused had done some other acts which are a nascent but non-criminal form of the offence(s)).

In such cases, the fi rst offender cannot be said to have acted out-of-character and specifi c deterrence may accordingly have to be given its full effect in determining the appropriate sentence.

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Conclusion

This note is a very modest attempt at elucidating the most defensible rationale for considering an offenders clean record in sentencing. After all, it has been pointed out that it would be useful to articulate the rationale for considering specifi c mitigating and aggravating factors awareness of the just

singapore law gazette (may 2015)

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