Keith Jieren Thirumaran

Terrorism and the European Court of Human Rights

By Keith Jieren Thirumaran


The Council of Europe currently consists of 47 European Countries.1 In order to join and remain a member of the Council of Europe,2 countries must ratify and adhere to the European Convention on Human Rights [Convention].3 Through the Convention, the European Court of Human Rights (“ECtHR”) is empowered to ensure that the Convention is adhered to4 as well as to develop binding5 case law to progress the interpretation of the Convention. The ECtHR interprets the Convention as a “living instrument”6 which has led to an expansive scope of its provisions. This article will examine the impact of developments in the ECtHR’s case law on governments and public officials in the context of combating terrorism. In particular, this article will examine the restrictions that the ECtHR has placed on parties to the Convention (“Member States”) under Articles 2, 3 and 6 of the Convention. It will be submitted subsequently that although restrictions on governments and public officials are generally necessary, the restrictions of the ECtHR are too far-reaching and unreasonable in the context of protecting the lives of innocent civilians.


All humans have the right to life and this is enshrined in Article 2 of the Convention. Under Article 3 of the Convention, all humans also have the right to be free from torture as well as inhuman or degrading treatment or punishment. Terrorists are defined as people who use violence and intimidation to coerce governments and communities.7 These people commonly engage in unlawful activities that extend to the killing and torture of innocent civilians, thus depriving innocent civilians of these Convention rights.

Article 1 of the Convention provides that Member States must secure these rights and freedoms to everyone within their jurisdiction. This means that Member States must take measures to ensure that no individual is subjected to torture nor to inhuman or degrading treatment, whether committed by a public official or by private individuals such as terrorists.8 Similarly, Members must also take “preventive operational measures” to protect individuals whose lives are at risk from the acts of other individuals, such as terrorists.9

These are positive obligations placed on Member States and public officials to ensure that innocent civilians are not killed or tortured by anyone, including terrorists.10 They require Member States to take reasonable measures to prevent the killing11 or torture12 of anyone in cases where authorities had or ought to have had, at the material time, knowledge of a “real and immediate risk” of loss of life or torture.

However, these positive obligations are in addition to negative obligations placed on Member States not to kill or torture individuals within their jurisdiction, whether innocent civilian or terrorist.13


A. Deprivation of Life

Article 2(2) of the Convention provides exceptions where a Member State is permitted to use force that might result in the deprivation of life.14 Under Article 2(2)(a), such force may be used “in the defence of any person from unlawful violence”. Such force must also have been “absolutely necessary” in order to achieve the aim in Article 2(2)(a)15 and must therefore be “strictly proportionate”.16

As Articles 2 and 3 are fundamental and basic values of Member States,17 the ECtHR subjects deprivations of life to careful scrutiny and will therefore consider both the actions of state agents who administer the force as well as surrounding circumstances such as the planning and control of the operation.18

The restriction on public officials using such force only when absolutely necessary is itself an uncontroversial restriction. An example demonstrating this necessity is the case of the innocent civilian who was shot dead by police officers on 22 July 2005 on board the London transport network because the public authorities had wrongly suspected that he was a terrorist.19 Although the civil case was settled by mediation,20 this case illustrates the need to hold public officials accountable for their counter-terrorism operations.

In most cases, the application of the test of “absolute necessity” (and its accompanying strict proportionality test) will be straightforward. The firing of guns directly at demonstrators21 and usage of high-explosive indiscriminate aerial fragmentation bombs in an area populated with innocent civilians are clearly more than absolutely necessary.22 However, in less straightforward cases, the manner of application of the test to the facts might result in a decision that places an unreasonable restriction on public officials, especially when applying strict proportionality.

In McCann v United Kingdom,23 4 soldiers shot dead 3 known terrorists in Gibraltar24 after they made movements that appeared as if they were attempting to detonate a bomb.25 It transpired that the terrorists were not armed and were only on a reconnaissance mission with the intention of eventually planting a bomb there.26 The ECtHR held that by not making sufficient allowances for the possibility that intelligence information could be wrong and by not preventing the terrorists from travelling into Gibraltar, the overall situation led to the killing of the terrorists which was therefore not absolutely necessary, violating Article 2.27 This controversial decision generated a strong political backlash in the UK against the ECtHR.28

It is submitted, in support of the minority judges, that the failure to make allowances for intelligence information being wrong was analysed by the majority judges with the benefit of hindsight.29 Both the majority30 and minority31 judges agreed that the authorities had incomplete information and had no choice but to formulate their operation on the basis of information available at that time. Difficult operational choices had to be made involving unpredictable human conduct.32 It must be recalled that the actions taken by the UK government must be judged based on the information available at the material time,33 a position that is akin to the approach under UK Domestic Criminal Law.34

Judges in the majority had earlier found that since the soldiers honestly believed, based on the information that they had, that shooting the suspects was necessary to prevent serious loss of life. The soldiers thus did not violate Article 2: “to hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others”.35 This stands in stark contrast against the subsequent finding that the UK Government violated Article 2, especially since the latter had also honestly believed, based on the information they had, that shooting those terrorists were absolutely necessary to save the lives of innocent civilians.

The consequences of the intelligence information being correct are devastating and as such no responsible government would have allowed the risk of such a detonation.36 It is therefore submitted that the authorities were correct in proceeding on the worst-case scenario basis.37 Failing to do so would show a “reckless failure of concern for public safety”38 and a breach of the authorities’ duty to protect innocent civilians as well as their own military personnel.39

It is also submitted, in support of the minority judges, that it would not have been practicable for UK authorities to arrest and detain the terrorists at the border.40 The UK Government’s reason for not arresting the terrorists at the border was because there was insufficient evidence to warrant the detention and trial of the suspects.41 However, this was rejected by the majority.42 The result of the majority’s finding places an unreasonable restriction on public authorities because arresting and releasing terrorists at that stage in time would have alerted the terrorists to the readiness of the authorities.43 The risk of a successful renewed attack on innocent civilians would increase as a consequence.44 Furthermore, the UK Government had no option of preventive detention of suspected terrorists as the ECtHR had previously ruled that detention without trial would be a violation of Article 5 of the Convention.45 The incompatibility of preventive detention with the Convention, even in the context of terrorism, has subsequently been reinforced.46

As such, the ECtHR’s imposition of a test of strict proportionality in determining whether the force was “absolutely necessary” effectively leaves the UK government without any options to protect innocent civilians from terrorists. On the facts of McCann v United Kingdom, there would have been nothing the UK government could have done and they would have been forced to risk innocent lives.

By way of contrast, on the opposite end of the spectrum, the USA frequently engages in targeted killings of terrorists via drones and airstrikes, even on targets located in foreign countries.47 This itself is submitted to be too extreme an opposing view.

It is submitted that a middle ground should be adopted where the proportionality test is moderated to be more lenient, in line with general standards relating to private- or self-defence. Under UK Domestic Criminal Law, strict proportionality is not applied for these doctrines of defence because it is unrealistic to expect anyone to weigh the exact amount of force necessary for self-defence in the midst of a situation.48 This position is similar elsewhere because the proportionality of a response should not be weighed on “golden scales” with the “luxury of time and calmness to think about the possible courses of action to take”.49 The detached objectivity that is natural in courtrooms long after the incident has taken place is an inappropriate test for such proportionality.50

B. Torture, inhuman or degrading treatment

(1) Obtaining Information

Torture as well as inhuman or degrading treatment or punishment are widely accepted to be morally wrong and unacceptable behaviour. The issue here is whether there are circumstances where such behaviour can ever be justifiable. Much of this discourse tenders to moral and philosophical quandaries as opposed to legal matters. It is therefore unsurprising that there is no international consensus on this issue. As much academic ink has been spilled on this issue – most of it being non-legal and beyond the scope of this article – the following will only provide a brief overview of the contrasting positions at the risk of oversimplification.

Deontologists favour an absolute moral prohibition because of the essence of human dignity which prevents such actions, regardless of any possible disastrous costs of an absolute prohibition.51 A common illustration is to let a nuclear bomb go off in a city rather than getting the information needed to stop it.52 The Council of Europe and the ECtHR both adopt positions in favour of the deontologist view. The prohibition against torture, and inhuman or degrading treatment or punishment is an absolute prohibition.53 This is irrespective of the conduct of the person,54 and has no exceptions and can have no derogations, “even in the event of a public emergency threatening the life of the nation”.55 Even under difficult circumstances such as fighting organized terrorism and crime, violations of Article 3 are absolutely prohibited.56 Furthermore, a sufficiently real and immediate threat of conduct violating Article 3 may also result in a violation of Article 3.57 In addition, any physical force that has not been made strictly necessary by a suspect’s conduct may result in a violation of Article 3.58 In light of the absolute nature of the Article 3 right, judicial corporal punishment such as caning has also been ruled to violate Article 3, and therefore cannot be applied to any person59 regardless of the crime committed.60

Under this view, one must also consider the possibility of suspects confessing false information to stop being tortured. Furthermore, suspects may not always possess the information as believed and may not even be the correct persons to apprehend.61 Furthermore, opening the door to “some” torture might lead to a slippery slope as it is not possible to limit the boundary on torture, leading to more extensive torture.62 Lastly, torture is more heinous than operational killings because a suspect is particularly vulnerable when held in police custody and deprived of liberty.63 Where the suspect is already entirely under the public authorities’ control, the authorities must bear a duty to protect him or her.64

Consequentialists, on the other hand, acknowledge that there may be some circumstances where torture may be necessary for the greater good.65 An example of the consequentialist view is the USA which engages in conduct that would violate Article 3 of the Convention during some of its interrogations.66

Under this view, a common example is known as the “ticking bomb” scenario where information is needed urgently to diffuse a bomb to save lives and torture is the only method that can obtain the information.67 In such situations, at varying levels, consequentialists agree that torture would be necessary.68 Beyond this common argument, it should be noted that in one case where the interrogation was held in breach of Article 3, the authorities obtained a “considerable quantity of intelligence information, including the identification” of 700 terrorists and solved 85 unexplained crimes.69

(2) Obtaining Convictions

Where subsequent evidence is obtained as a result of information earlier obtained during treatment that violates Article 3 (torture, inhuman or degrading treatment), and if the evidence (resulting in a conviction) is a direct result of the violation, then it is automatically unfair to use the evidence.70 The reason for this is because allowing such evidence to be admitted would be an incentive for public authorities to continue violations.71. This only applies where the evidence had a bearing on a conviction, as opposed to reliance on other untainted evidence.72 This means that the focus of the ECtHR is on the unfairness of the violation in light of the absolute nature of Article 3, as opposed to other factors in other jurisdictions such as reliability,73 probative value74 or voluntariness.75

While hardly any objection is taken to this approach, caution must be taken by the ECtHR to ensure that conduct in alleged violation actually meets the high thresholds of “torture, inhuman or degrading” treatment. The reason for this is because in interrogations, “some discomfort has to be expected”76 and it should be borne in mind that “the police work in difficult circumstances” such that removing “all doubt of influence or fear” would mean that the police “would never be able to achieve anything”.77


The ECtHR has decided that Member States cannot extradite a criminal to a Non-Member State where there are substantial grounds to believe that there is a real risk of torture, inhuman or degrading treatment or punishment for the criminal.78 In light of the fact that judicial corporal punishment such as caning has been held to be prohibited by Article 3,79 Member States are unable to extradite terrorists to Non-Member States to face caning. The ECtHR subsequently extended this to include the death penalty and execution,80 such that Member States can no longer extradite criminals to Non-Member States to face the death penalty.81 The ECtHR has also expanded this to include extradition to a Non-Member State where a terrorist faces a de facto irreducible life sentence without parole.82 The ECtHR has made clear that these restrictions also prevent expulsions83 and even to the deportation of illegal immigrants that have snuck into the country.84 In one case where extradition was prohibited, the ECtHR has went so far as to say that the “serious threat to the community” does not diminish the risk of a terrorist suffering harm when deported.85

Leaving aside any potential diminution of deterrent effect from death penalties or caning, the implication of the ECtHR’s decisions is that Member States are no longer able to get rid of terrorists that were originally not within their jurisdiction. Furthermore, an extension of this would be that terrorists from Non-Member States might specially flee to seek refuge in Member States since they cannot be deported back to face the death penalty or judicial corporal punishment even if they entered the Member State illegally.

A possible workaround in recent times has been to ensure that the state requesting for extradition agrees not to impose judicial corporal punishment on the suspect.86 This can logically be extended to securing an agreement not to impose the death penalty as well. It remains, however, less than ideal. Apart from questions of sovereign equality or those of imposing of subjective values on other states, any Non-Member State is free to decide that it will not agree to the imposed terms for extradition, thus leaving the Member State potentially stuck with a terrorist. Furthermore, the ECtHR may not even be persuaded by the assurances provided by the state requesting for extradition if it finds that the foreign government is unable to adequately guarantee a freedom from Article 3 treatment.87


The sum effect of developments in the ECtHR’s case law is that governments and public officials in the Council of Europe are severely hampered from combating terrorism. Member States must fulfil a test of strict proportionality when making decisions relating to deprivations of life and are also unable to detain nor remove terrorists from their countries. These considerable restrictions place the lives of innocent civilians at significant risk and are therefore unreasonable in the context of fighting terrorism.

It is suggested that in analysing state behaviour in respect of terrorism, a useful analogy may be drawn from the opposing goals and values of Criminal Justice Systems. In the Criminal Justice System, a balance is normally struck somewhere along the spectrum between a model that primarily aims to suppress crime88 (the “Crime Control Model”) and a model that primarily seeks to protect an individual’s rights89 (the “Due Process Model”). When it comes to terrorism, many innocent lives are at stake. The severity of the risks involved mean that the appropriate balance required must be shifted towards the values of the Crime Control Model. It is thus submitted that the better way forward is to focus on suppressing terrorism, with the necessary compromise on some of the values of the Due Process Model. As such, primacy must be given to the protection of innocent lives with the necessary evil of watering down some of the rights in the Convention.

[1] Council of Europe, Statute of the Council of Europe, CETS No. 001 (1949) at Article 26 (as at May 2018).

[2] Ibid at Articles 3 and 8.

[3] Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 005 (1950), as amended by Protocols No. 11 and 14.

[4] Ibid at Article 19.

[5] Ibid at Article 46.

[6] Soering v United Kingdom [1989] ECHR 14 at [102].

[7] The Concise Oxford Dictionary of Current English, 9th Ed, sub verbo, “terrorist”.

[8] Z v United Kingdom [2001] ECHR 333 at [73]; A v United Kingdom [1998] ECHR 85 at [22].

[9] Osman v United Kingdom [1998] ECHR 101 at [115].

[10] Ibid.

[11] Ibid at [116]; See also, Edwards v United Kingdom [2002] ECHR 303 at [121].

[12] Z v United Kingdom [2001] ECHR 333 at [73].

[13] Supra note 9 at [115].

[14] McCann v United Kingdom [1995] ECHR 31 at [148].

[15] Ibid.

[16] Ibid at [149].

[17] Ibid at [147].

[18] Ibid at [150].

[19] Armani Da Silva v United Kingdom [2016] ECHR 314, at [12] and [37]–[38].

[20] Ibid at [142].

[21] Simsek v Turkey [2005] ECHR 546 at [108] and [112].

[22] Kerimova v Russia [2011] ECHR 744 at [253] and [257].

[23] Supra note 14.

[24] Ibid at [199].

[25] Ibid at [196] and [197].

[26] Ibid at [219].

[27] Ibid at [213].

[28] Peter Cumper, “When the State Kills – McCann and Others v United Kingdom”, (1995) 4 Nottingham LJ 207.

[29] Joint Dissenting Opinion, McCann v United Kingdom, [1995] ECHR 31 at [8].

[30] Supra note 14 at [193].

[31] Supra note 29 at [8]

[32] Supra note 9 at [116].

[33] Ibid; see also Edwards v United Kingdom, [2002] ECHR 303 at [121].

[34] Criminal Justice and Immigration Act 2008 (UK), c4, s76(3).

[35] Supra note 14 at [200].

[36] Supra note 29 at [9].

[37] Ibid at [13].

[38] Ibid.

[39] Supra note 14 at [192].

[40] Supra note 29 at [11].

[41] Supra note 15 at [204].

[42] Ibid at [205].

[43] Supra note 29 at [11].

[44] Ibid.

[45] Brogan v United Kingdom [1988] ECHR 24.

[46] A and others v Secretary of State for the Home Department [2004] UKHL 56; A and Others v Secretary of State for the Home Department [2009] ECHR 301.

[47] Philip Alston, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions”, (2010) United Nations, A/HRC/14/24/Add.6 at [18]-[22].

[48] Supra note 34 at s76(7)(a); Palmer v R [1971] AC 814 (Privy Council on Appeal from Jamaica).

[49] PP v Vijayakumar s/o Veeriah [2005] SGHC 221 at [52].

[50] Jai Dev v State of Punjab, AIR 1963 SC 612 (India) at 617.

[51] Robert J Homant et. al., ‘Is Torture Ever Justified – College Students’ Attitudes Toward Coercion/Torture’ (2008) 8 JIJIS at p 153.

[52] Ibid at p 153.

[53] Supra note 12 at [73]; Republic of Ireland v United Kingdom [1978] ECHR 1 at [163].

[54] Republic of Ireland v United Kingdom [1978] ECHR 1 at [163].

[55] Aksoy v Turkey [1996] ECHR 68 at [62]; Selcuk & Asker v Turkey [1998] ECHR 36 at [75].

[56] Ibid.

[57] Gafgen v Germany [2010] ECHR 759 at [91].

[58] Bouyid v Belgium [2015] ECHR 819 at [100].

[59] Tyrer v United Kingdom [1978] ECHR 2 at [35].

[60] Ibid at [34].

[61] Supra note 51 at p 154.

[62] Ibid.

[63] Ribitsch v Austria [1995] ECHR 55 at [36] and [38]; Bouyid v Belgium [2015] ECHR 819 at [100].

[64] Bouyid v Belgium [2015] ECHR 819 at [103] and [107].

[65] Supra note 51 at p 154.

[66] Department of Defense Joint Task Force 170 on Guantanamo Bay in Cuba, APO AE 09860, Declassified “Legal Brief on Proposed Counter-Resistance Strategies”, JTF170-SJA (31 October 2002).

[67] Supra note 51 at p 153.

[68] Ibid at p 154.

[69] Supra note 54 at [98].

[70] Ibid at [173]; Gocmen v Turkey [2006] ECHR 2003.

[71] Supra note 54 at [178].

[72] Ibid at [178]-[181] and [187].

[73] Poh Kay Keong v PP [1995] 3 SLR(R) 887 (Court of Appeal, Singapore) at [42].

[74] Muhammad bin Kadar v PP [2011] SGCA 32 at [53].

[75] Yeo See How v PP [1996] 2 SLR(R) 277 (Court of Appeal, Singapore) at [40].

[76] Ibid.

[77] Panya Martmontree v PP [1995] 2 SLR(R) 806 (Court of Appeal, Singapore) at [29].

[78] Supra note 6 at [91] and [111].

[79] Supra note 59 at [35].

[80] Al-Saadoon & Mufdhi v United Kingdom [2010] ECHR 282 at [120] and [137].

[81] AL (XW) v Russia [2015] ECHR 964 at [64].

[82] Trabelsi v Belgium [2014] ECHR 893 at [138] and [139].

[83] LM v Russia [2015] ECHR 908 at [126].

[84] Jabari v Turkey [2010] ECHR 369 at [42].

[85] Saadi v Italy [2008] ECHR 179.

[86] John Geddie and Robert Birsel (ed), “Singapore says won’t cane suspected bank robber if deported from UK”, (20 February 2018) Reuters World News, online: <>; “StanChart robbery: Singapore agrees to UK request to not cane suspect if found guilty”, (20 February 2018) Channel News Asia, online: <>.

[87] Chahal v The United Kingdom [1996] ECHR 54 at [105].

[88] Herbert L Packer, The Limits of the Criminal (1968) Stanford University Press at p 159.

[89] Ibid at p 239.

The PDF version of this article is available for download here.

The Disclosure of Medical Risks in Singapore and the case of Montgomery

by Keith Jieren Thirumaran


There are three main areas that doctors engage in when practicing medicine: diagnosis, treatment and advice. In order for doctors to avoid negligence liability, they must meet the applicable standard of care expected of them. However, in the context of advice with respect to disclosure of risks, the test for determining whether a doctor is in breach of the applicable standard of care has attracted a considerable amount of attention. Singapore has retained the traditional doctor-centric test, but several overseas jurisdictions have since developed more patient-focused approaches – notably, the recent UK Supreme Court decision of Montgomery v Lanarkshire Health Board [Montgomery].1 This article will examine the various tests used by courts both locally and overseas, after which it will be submitted that the status quo in Singapore should be maintained in light of compelling local circumstances.


The Singapore position pre-Montgomery

The current position in Singapore is embodied in the Court of Appeal case of Dr Khoo James & Anor v Gunapathy d/o Muniandy [Gunapathy]2 where the Court applied the Bolam-Bolitho test to the disclosure of risks in the medical context.

The Bolam-Bolitho test is the locus classicus for the standard of care required of doctors and comprises of two separate tests. The plaintiff must show that a doctor defendant has failed either of these tests in order to establish a breach of the standard of care.

The Bolam test, formulated in Bolam v Friern Hospital Management Committee,3 requires a doctor to have acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. This means that a doctor will not be found negligent as long as part of the medical profession agrees with what the doctor did, even if there is a body of opinion that takes the contrary view,4 and even if the court prefers one of the views over the other.5

The Bolitho test, formulated in Bolitho v City & Hackney Health Authority,6 is a threshold test of logic and consistency when accepting the opinion of medical peers. This comprises two stages: the expert must have directed his mind to the comparative risks and benefits of the matter; and the opinion must be a defensible conclusion, meaning that it must be internally consistent and should not ignore known medical facts.7

The main reasons the Court of Appeal in Gunapathy cited for applying the Bolam-Bolitho test was that judicial wisdom has its limits. A judge unskilled in medicine has no business adjudicating matters which medical experts themselves cannot agree on.8 Furthermore, excessive judicial interference would hamper the proper development of medical science, give rise to defensive medicine, and lead to higher medical costs and wastage of medical resources. 9

The development of the “prudent patient” approach

In the UK case of Sidaway v Bethlem Royal Hospital Governors [Sidaway],10 Lord Scarman in his dissent suggested moving from the Bolam-Bolitho approach toward a “prudent patient” test similar to that found in the American case of Canterbury v Spence.11 In the Australian case of Rogers v Whitaker [Rogers],12 the High Court favoured Lord Scarman’s dissent13 and decided the case on the basis of what risks a “prudent patient” would wish to know, save for the exception of therapeutic privilege cases. The Canadian Supreme Court case of Reibl v Hughes14 and the Malaysian Federal Court case of Foo Fio Na v Dr Soo Fook Mun & Anor15 have also taken similar approaches to the disclosure of risks in the medical context.

In the UK itself, the majority decision in Sidaway is no longer good law. The case has since been effectively overruled by the recent Supreme Court decision of Montgomery.16 The Montgomery approach17 is that a doctor must disclose risks that a reasonable person in the patient’s position would attach significance to, as well as risks that the doctor should reasonably be aware that the actual patient would attach significance to. The patient need not question the doctor,18 though the doctor must engage in a proper dialogue with the patient to ensure that the latter is aware of and understands the risks.19

There are three exceptions to the above test where a doctor does not have to disclose the relevant risks.20 The first is when the patient does not wish to know any further information.21 The second is the therapeutic privilege exception which allows a doctor to withhold information from the patient if the doctor reasonably considers that its disclosure would be seriously detrimental to the patient’s health. 22. The third is in circumstances of necessity such as when treatment is required urgently but the patient is unconscious or otherwise unable to make a decision.23

Whether the risk is considered material enough to be disclosed depends on various factors such as magnitude of risk, nature of risk, effect of its occurrence upon the life of the patient, importance to patient of the benefits from treatment, alternative treatments and risks of those alternative treatments (“Montgomery Factors”).24

Singapore’s stance on the “prudent patient approach”

Although the Singapore High Court acknowledged Montgomery in the cases of Thong Jiang Andrew v Yue Wai Mun & Anor 25 and Hii Chii Kok v Ooi Peng Jin London Lucien and another,26 it left the question of which test should apply open (Bolam-Bolitho or Montgomery). Nonetheless, on the existing facts, it seems that the Singapore Courts favour the Bolam-Bolitho test.

Firstly, the Court of Appeal in Gunapathy, in the context of advice and disclosure of risks, did not find favour with Lord Scarman’s dissent in Sidaway, the foundations for the prudent patient approach as discussed above. Instead, the Court in Gunapathy preferred to follow the majority in Sidaway in applying the Bolam-Bolitho test to the context of advice and disclosure of risks.27

Secondly, the Court in Gunapathy also noted that Lord Bridge’s qualification in Sidaway (that if there was a substantial risk and no cogent clinical reason for non-disclosure, a Judge can conclude that no respectable medical expert would have failed to disclose that risk) was already subsumed under the Bolitho test and was therefore unnecessary.28

Thirdly, Chief Justice Sundaresh Menon, in his address at the Opening of the Legal Year 2016, has also emphasised the importance of preventing doctors from practicing defensive medicine.29 The Learned Chief Justice also promoted the use of alternative dispute resolution such as mediation, as opposed to litigation, for resolving medical disputes.30 This is further evidence of the importance of reducing medical litigation in Singapore, which is more in line with the Bolam-Bolitho test. The Montgomery test, on the other hand, may subject doctors to greater legal liability.


Since the position in the UK (which Singapore was following) has been changed by the case of Montgomery, the Singapore Court of Appeal will have to consider this and other international developments to determine which test should apply in Singapore. While some may be quick to cast their vote for a change to Montgomery, this author believes that Singapore should stick to its current position and uphold the Bolam-Bolitho test.

Underlying policy considerations in support of the Bolam-Bolitho test

Policy reasons form the basis for sticking to the Bolam-Bolitho test, in particular, hampering the proper development of medical science, giving rise to defensive medicine, higher medical costs and wastage of medical resources.31 As Chief Justice Menon pointed out in his address, a fear of litigation would distort medical practice and raise insurance costs.32 These are fundamental policy considerations that underpin the Bolam-Bolitho test and they are still as strong today.

At first glance, it would appear that the learned Chief Justice’s concerns were already considered by the Supreme Court in Montgomery. The Supreme Court in that case disagreed that there was a possibility of increased litigation and defensive medicine from its approach. Furthermore, the Court opined that its approach would result in patients being aware that the outcome of treatment is uncertain, and that its approach allows patients to take responsibility for the ultimate choice of undergoing that treatment.33 This, in the Court’s opinion, would therefore lower the likelihood of litigation in the event of an adverse outcome.34

However, this author respectfully disagrees with the views expressed in Montgomery. While it may be thought that less litigation would directly translate into less defensive practices, this is not necessarily true. The very fact that doctors under the Montgomery approach have to disclose more risks is itself a defensive practice which would lead to higher costs. Doctors would never be sure where to draw the line, and would “play safe” by disclosing many, if not all, the risks associated with the treatment.

In Montgomery, the Court failed to take into account the increased medical costs involved with their approach.35 The defensive medical practice of disclosing more risks of treatment (in order to avoid liability for failing to disclose a risk) would lead to “higher medical costs and wastage of precious medical resources”.36 More time will be needed to disclose and explain risks, which could have been spent treating another person or saving a life (which the Court in Montgomery did not discuss). Time wastage may be exacerbated where a patient who has been notified of many new risks is inclined to further question the doctor for explanations, elaborations, and evaluations on them, regardless of the significance of the risk. The Montgomery approach may raise medical costs, going against the aims that the learned Chief Justice and the Court in Gunapathy had sought to achieve.

Furthermore, even with the therapeutic privilege exception, disclosing every conceivable risk to a patient that is not “at-risk” can still cause unbalanced decisions and frighten the patient.37 A patient may opt for a more expensive treatment or refuse otherwise viable treatment when frightened by an insignificant risk. It is therefore submitted that in order to avoid higher medical costs and wastage of resources, the decision of which risks are significant enough to the patient and need to be disclosed should best be left to the judgment of the medical profession.

Lastly, the Court in Montgomery felt that imposing legal obligations was necessary to force doctors to engage in a discussion with their patients. However, as Baroness Hale said in Gregg v Scott,38 doctors are motivated by their natural desire and professional duty to do their best for their patients. It is this author’s opinion that a doctor would therefore engage in the discussion with their patients, even without legal obligations, as long as the doctor feels that it would be in the patient’s interest to know of a particular risk.

Montgomery’s human rights focus is inapplicable to Singapore

The decisions in the UK, such as Montgomery, may not be applicable in Singapore. This is because, as stated by the Singapore High Court, the UK decisions may have been influenced by the UK’s emphasis on human rights and autonomy.39 This emphasis on human rights and autonomy in the UK may be attributed to the European Convention of Human Rights [ECHR],40 enforced under the Human Rights Act [HRA].41

However, neither the ECHR nor the HRA is binding on Singapore Courts.42 Therefore, in the absence of any rights-based legislation, the Singapore Courts may not be inclined to adopt an approach, such as Montgomery, which is based on a strong emphasis of Human Rights.43

Bolam-Bolitho and Montgomery tests likely to reach the same conclusion

The Bolam-Bolitho test would, in this author’s opinion, already encompass the bulk of the Montgomery approach. It is submitted that the large majority of risks disclosed under the Montgomery approach would already be disclosed under the Bolam-Bolitho test, ultimately giving rise to same legal conclusions.

Firstly, if a doctor is aware that his patient would attach significance to a particular risk, then in the absence of cogent medical reasons such as the therapeutic privilege exception, there appears to be no reason why that doctor would not disclose that risk to the patient. Therefore, it appears that any reasonable doctor would disclose risks that he is aware his patient finds significant, thereby satisfying the Bolam test, while also satisfying the Montgomery test.

Secondly, even in the absence of any cognisance of specific significance to his patient, a doctor would disclose risks that the doctor believes should be disclosed. A doctor is likely to take into account the various Montgomery Factors listed above (save for “importance to patient of the benefits from treatment”) when making an assessment of what to disclose to a patient. Therefore, save for the internal thoughts of a patient, a reasonably doctor who satisfies the Bolam test by considering the Montgomery Factors would satisfy the Montgomery test and disclose all material risks.

Furthermore, in Singapore the minimum that the Bolam test requires a reasonable doctor to do would be to adhere to the Singapore Medical Council’s Ethical Code and Ethical Guidelines [Ethical Code].44 The Ethical Code requires doctors to keep a patient “adequately informed” of his treatment options so that “he is able to participate in decisions about his treatment”.45 The Ethical Code also requires doctors to “provide adequate information” so that a patient can make “informed choices”.46 As the wording is notably broad, it is highly probable that a doctor which satisfies the provision of “adequate information” under the Bolam test is likely to have disclosed all material risks and thereby satisfy the Montgomery test.

Thirdly, there is no risk of the medical profession exploiting the Bolam-Bolitho test. This is because if the responsible body of medical men would not have disclosed the risk, and if this is not founded on a logical basis, the Bolitho test would then step in.47 The Bolitho test is not an invasive inquiry into the merits of the medical opinion before the Court.48 However, if the medical profession illogically omits to warn of certain risks which patients should undoubtedly be informed of, the Court should interfere on the authority of Bolitho.49 This is especially so when the disclosure of that particular risk was so obviously necessary in order for the patient to make an informed choice.50 An example provided by the Court was if the risk is substantial, of grave consequences and there is no cogent clinical reason for omitting to disclose the risk.51 Therefore the Bolitho test will help to catch risks that should be disclosed under Montgomery but where the medical profession as a whole would not have done so.

The Montgomery test is impractical

Even with the practical similarities highlighted above, it is acknowledged there are a handful of risks that a prudent patient would want disclosed that a reasonable body of medical men would not have disclosed. This handful of risks would be caught by the Montgomery approach but would not have been caught under the Bolam-Bolitho test. The existence of these risks stem from the main difference between the Bolam-Bolitho test and the Montgomery approach: the perspective from which the test is applied.

It is submitted that the Montgomery test provides a very artificial guideline to follow and it would not be realistic to expect a doctor to adhere to such a test. While it is acknowledged that a doctor can attempt to think from the perspective of a reasonable patient, and thereby theoretically be able to cover some of the material risks from a patient’s perspective, the reality is that a doctor cannot tell with any precision or certainty what a reasonable patient would wish to know. Therefore, in their bid to escape liability under the Montgomery test, a doctor would practice defensive medicine by simply disclosing every conceivable risk. This is undesirable as it would lead to the aforementioned higher medical costs and wastage of medical resources.

Therefore, applying the Montgomery approach only gives the appearance of human rights and autonomy. Instead, the Montgomery approach would lead to more prevalent defensive practices as well as unnecessarily cause a greater number of doctors to be found negligent merely due to the unrealistic expectation of predicting what a prudent patient would want to know.


In conclusion, the Singapore Courts should not feel pressured to accept the approaches adopted in other jurisdictions but should choose the approach that is most desirable to the Singapore context and society. It may well be that maintaining the status quo could be the better approach for Singapore.

[1] Montgomery v Lanarkshire Health Board, [2015] UKSC 11.

[2] Dr Khoo James & Anor v Gunapathy d/o Muniandy, [2002] 2 SLR 414.

[3] Bolam v Friern Hospital Management Committee, [1957] 1 WLR 582 at 587.

[4] Ibid.

[5] Maynard v West Midlands Regional Health Authority, [1985] 1 All ER 635.

[6] Bolitho v City & Hackney Health Authority, [1998] AC 232 at 241-242.

[7] Supra note 2 at [64] – [65].

[8] Supra note 2 at [144].

[9] Ibid.

[10] Sidaway v Bethlem Royal Hospital Governors, [1985] AC 871.

[11] Canterbury v Spence, (1972) 464 F 2d 772.

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

[13] Ibid at [10].

[14] Reibl v Hughes, (1980) 114 DLR (3d).

[15] Foo Fio Na v Dr Soo Fook Mun & Anor, [2007] 1 MLJ 593.

[16] Supra note 1.

[17] Supra note 1 at [87].

[18] Supra note 1at [58].

[19] Supra note 1 at [90].

[20] Supra note 1 at [85] and [88].

[21] Supra note 1 at [85].

[22] Supra note 1 at [88].

[23] Supra note 1 at [88].

[24] Supra note 1 at [89].

[25] Thong Jiang Andrew v Yue Wai Mun & Anor, [2015] SGHC 119 at [36] – [37].

[26] Hii Chii Kok v Ooi Peng Jin London Lucien and another, [2016] SGHC 21.

[27] Supra note 2 at [142].

[28] Supra note 2 at [141].

[29] Chief Justice Sundaresh Menon: Response at the Opening of the Legal Year 2016 (11 January 2016), online: <
20CJ%20%20Opening%20of%20the%20Legal%20Year%202016%20on%2011%20January%202016%20(Checked%20against%20Delivery%20110116).pdf> at [43].

[30] Ibid.

[31] Supra note 2 at [144].

[32] Ibid.

[33] Supra note 1 at [93].

[34] Ibid.

[35] It is suggested that the UK’s National Health Service may have been a contributing factor that would have downplayed the concern of patients’ medical costs for the Court in Montgomery.

[36] Supra note 2 at [144].

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

[38] Gregg v Scott [2005] UKHL 2 at [217].

[39] D’Conceicao Jeanie Doris (administratrix of the estate of Milakov Steven, deceased) v Tong Ming Chuan [D’Conceicao], [2011] SGHC 193 at [123]; Tong Seok May Joanne v Yau Hok Man Gordon [2012] SGHC 252 at [64] and [172].

[40] Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)

[41] Human Rights Act 1998 (UK), c 42.

[42] Supra note 38.

[43] Ibid.

[44] Singapore Medical Council, Ethical Code and Ethical Guidelines, online: <>.

[45] Ibid at 4.2.2.

[46] Ibid at 4.2.4.

[47] Supra note 2 at [141].

[48] D’Conceicao at [40].

[49] Ibid at [124].

[50] Supra note 10 at 900.

[51] Ibid.


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