Monthly Newsletter Issue 6: April/May 2019
Dear Members,
We hope that everyone had a well-rested and enjoyable Easter break. In light of the upcoming exam period, this month’s newsletter will be a combined April and May bumper issue.
This month’s newsletter is centered around ‘Government Efforts towards the Protection of Citizens’. As such, we have covered the controversial fake news bill, alongside a comparison with other jurisdictions with similar content-restricting legislations. In the same vein, we will consider freedom of speech and censorship in Singapore in relation to Li Sheng Wu’s allegations against the Singapore Government. Equally important, amendments to the Protection from Harassment Act (POHA) 2014 have enforced stricter penalties on perpetrators, in order to improve protection of victims of harassment. Finally, we will also explore a recent significant Court of Appeal decision, marking the first time a public hospital in Singapore has been found liable in medical negligence.
For our ‘Features’ section, we are grateful towards Ronald Lee for his contribution evaluating the doctrine of informed consent in Singapore and whether change is necessary.
Lastly, our gold tier sponsor, Clifford Chance Asia (Singapore) is currently accepting applications for Practice Training Contracts commencing in 2022 for students who are due to graduate in mid 2020. Please refer to the attached leaflet to find out more about the firm and application process.
We wish everyone the very best in the upcoming examinations. See you all in June!
With warmest regards,
The UKSLSS Newsletter Editorial Committee 2018/2019
Edwin Teong (Editor-In-Chief)
Shermaine Lim (Managing Editor)
Ronald Lee (Deputy Editor)
Kimberley Ng (Design Director, Resident Writer)
Yu Jiaqi (Resident Writer)
Ohana Naidu (Resident Writer)
Ashley Chiang (Resident Writer)
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LEGAL TIDBITS
Harsher Penalties to Protect Vulnerable Victims of Harassment By: Ohana Naidu, University College London
The Protection from Harassment Act (POHA) was introduced in 2014 and has been an important legislative tool in protecting victims of harassment by giving them effective redress. Recently, the Ministry of Law has introduced the Protection from Harassment Act (Amendment) Bill (the “Bill”). The Bill comes after extensive consultations were conducted with stakeholders, including the Courts, practitioners, and voluntary welfare organisations. It seeks to introduce amendments to enhance protection for victims of harassment and falsehoods, and to make it faster and easier for victims to obtain remedies under POHA.
As a result of the proposed changes in the Bill introduced in Parliament by Senior Minister of State for Law Edwin Tong, penalties will double for offenders who harass their intimate partners or the physically or mentally infirm. In a statement released by the Law Ministry, they noted that victims of harassment by intimate partners are often “vulnerable and require greater protection”. The voluntary welfare organisations we consulted shared numerous cases of abusive behaviour by intimate partners." The new penalties introduced will match those which have been introduced, recently, by the Criminal Law Reform Bill. Also, harassers who intentionally cause harassment alarm or distress to vulnerable persons or intimate partners can now be fined up to $10,000 and imprisoned up to 12 months. Meanwhile, if they cause fear or provoke violence, they face a fine up to $10,000 and 24 months imprisonment.
The Bill will also establish the Protection from Harassment Courts (“PHC”), a specialised court for all harassmentrelated cases - providing a one-stop solution for victims to receive holistic and effective relief. The PHC will aim to hear applications for Expedited Protection Orders (EPO) within 48 to 72 hours of the application. Where there is a risk of violence or actual violence, the PHC will aim to hear the application within 24 hours.
In addition, the protection afforded by Protection Orders (PO) and EPOs will be enhanced to protect persons related to the victim, as these persons are often at risk of violence from the harasser as well. Further, EPOs will remain in effect until the PO hearing is concluded and domestic exclusion orders (i.e. orders restraining the respondent from entering the applicant’s residence or parts of the residence) can be granted as part of a PO. This will ensure better protection for victims who may reside in the same residence as the harasser.
Finally, the Bill will strengthen the remedies available when a PO or EPO is breached. Harassers who harass victims in breach of their POs can now can be immediately arrested or face double penalties for later breaches.
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Real News or Fake News? By: Ashley Chiang, University College London
The recent Protection from Online Falsehoods and Manipulation Bill has stirred much controversy, as it is perceived to substantially intensify Government scrutiny over online content. Based on the draft law, people in Singapore who spread online falsehoods with a malicious intent to harm public interest can face jail terms of up to 10 years. In addition, internet platforms, including social media sites such as Twitter, will be expected to cooperate by displaying corrections alongside posts spreading fake news, or removing them. International rights watchdog ‘Reporters Without Borders’ has criticised the bill for being a “horrifying tool for censoring and intimidating online media outlets and Inter net users”, as the Singapore Government will have almost full reign over online content.
The government has clarified that an individual is only liable under the proposed law if they (i) post a false statement of fact online and (ii) it is in the public interest for the Government to take action. Hence, opinions, criticisms, satire and parody are not caught by the Bill, which does not intend to penalise people who criticise the Government without making false claims. In addition, Law and Home Affairs Minister K. Shanmugam has stated that the Government prefers to “leave the material there [and] just have something which says ‘this is inaccurate, for the truth go to such a place’”. Hence, the level of scrutiny is moderated in that people are still free to read what they want and decide the truth for themselves. In considering the broader picture, Prime Minister Lee Hsien Loong believes that
what the Government has done in the past has worked for Singapore, and this Bill reflects their objective to continue to do things that will work for Singapore. PM Lee also noted that Singapore is not the only country to draw up legislation on this issue – France and Germany have also regulated online news, with Australia plans to do so.
At publication time, 3 Nominated Members of Parliament, Anthea Ong, Walter Theseira and Irene Quay have proposed the following amendments: (i) including a clause establishing key principles of the Act (ii) requirements for publicly justified directions (iii) expedited appeal process and (iv) establishment of an independent council to monitor online falsehoods and provide routine oversight on usage of executive powers. These amendments stem from concern that the Bill grants the Executive far-reaching powers to control online communications. Sharing this concern, Mr Harpreet Singh Nehal SC added that the two key preconditions to exercising powers under the Bill, a "false statement of fact" and a Minister's subjective determination of "public interest", are very widely defined. The definitional scope, Mr Singh observed, transcends traditional categories of national security, public health, foreign relations, integrity of national elections and race relations. Also, Mr Singh sought clarification from Parliament on the uncertain distinction between opinion and fact. This is besides the need to make proportionate decisions, subject to annual review. These concerns and suggested amendments await governmental response.
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Fake News Bills Across the World By: Yu Jiaqi, University of Oxford
The Singapore government recently introduced the Protection from Online Falsehoods and Manipulation Act for Parliament’s consideration. This would mean that social-media sites such as Facebook and Twitter would be required to take down posts the government deems false or to publish corrections relating to the false news. However, rather than a lone case of extreme state censorship, Singapore’s proposed Bill is perhaps only another piece of legislation in the pre-existing international trend of state control over information flow, with many other countries having put in place methods to limit the freedom of the dissemination of information.
Regionally, many administrations have had a history of limiting online disinformation to suppress dissent and criticism. In Thailand, Prayuth Chan-ocha (the head of the military junta) has recently denounced social media as an incubator for “incorrect thinking”—by which he appeared to mean complaints about the election he rigged last month. The Thai government followed up with pushing through several laws that allow it to monitor and curb online dissent. Similarly in Vietnam, cybersecurity laws were introduced in January that criminalised criticising the government online, and f o rc e d i n t e r n e t p ro v i d e r s t o g i v e authorities’ user data and to censor “toxic” content as determined by the ruling communist government. The country’s Association of Journalists further published a code of conduct banning reporters from posting information that could “run counter” to the state on social media. While Vietnam’s Ministry of Public Security said the law
was intended to tackle “hostile and reactionary forces”, human rights groups have called it out as the authorities’ latest method of silencing free speech. Even in the relatively democratic state of Malaysia, the Anti-Fake News Act passed in Parliament in April 2018 under the Barisan Nasional government to further its electoral interests. Despite the new Mahathir administration’s promise to repeal the law, such efforts were blocked by the opposition-led Senate, and the law is likely to remain for the foreseeable future. Clearly, Fake News bills are not a novel phenomenon in South East Asia. Even on a wider international context, state authorities are not unfamiliar with such modes of censorship. Most recently, Russia saw President Vladimir Putin sign into law tough new fines for Russians who spread what authorities regard as fake news or who show “blatant disrespect” to the state online. Once again, lawmakers frame such laws as necessary to combat false news, but critics have warned of the more likely purpose of it aiding state censorship. In Europe, France had passed two anti-fake news laws last year to rein in false information during election campaigns following allegations of Russian meddling. President Emmanuel Macron vowed to overhaul media laws to fight “fake news” on social media, despite criticisms that the move was a risk to civil liberties. In the same vein, Germany too passed a law (NetzDG for short) in 2018 for social media companies, such as Facebook and Twitter to remove hate speech on their platforms within a 24-hour period.
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Such paternalistic inclinations seem to be adopted by regional organisations as well, such as the European Union (EU), where governments are urged to share information such as threats via a new warning system launched by the bloc, and online platforms are called to do more to remove misleading or illegal content. While European Commission Deputy Head Frans Timmermans claims such action as part of the global effort to “regulate big technology and social media companies to protect citizens”, the line between removing incendiary content for the benefit of citizens and removing dissent for political motives could be easily blurred. As such, while Singapore’s decision to join the long line of countries who have adopted censorship laws should be scrutinised, the larger issue of a global clampdown on media and press freedom should not be forgotten.
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Walking the Fine Line: Fake News or Free Speech? By: Kimberley Ng, University of Bristol
The line between fake news is free speech is thin, and in an age of digital connectedness, Singapore has taken active steps to legislate against online falsehoods through the Protection From Online Falsehoods and Manipulation Act. However, the government’s actions have triggered widespread concern that the pursuit of tackling the war against misinformation may threaten civil liberties such as the right to free speech.
Uncertainty of ‘fake news’ law According to Reporters Without Borders’ World Press Freedom Index, Singapore is currently ranked 151 out of 180 countries, and the proposed legislation would impose tighter restrictions on the state’s a l re a d y h e a v i l y c o n t ro l l e d m e d i a landscape. The country’s determination to fight against the spread of misinformation and its detrimental effects to society is reflected it its systematic and robust approach to countering the problem. H o w e v e r, t h e re c e n t h i g h p ro fi l e proceedings against Prime Minister Lee Hsien Loong’s nephew, Li Shengwu, highlighted grey areas pertaining to the distinction between free speech and fake news. On post made on his personal Facebook page that was screen captured and circulated, Mr Li commented that the Singapore Government is “very litigious” and “has a pliant court system”. His remarks regarding the judiciary were subsequently met with legal proceedings for contempt of court. The boundaries between online falsehoods and free
speech and fake news On post made on his personal Facebook page that was screen captured and circulated, Mr Li commented that the Singapore Government is “very litigious” and “has a pliant court system”. His remarks regarding the judiciary were subsequently met with legal proceedings for contempt of court. The boundaries between online falsehoods and free speech are blurred and the onus is on the Attorney-General to “prove beyond reasonable doubt that my (Mr Li’s) private Facebook post somehow scandalised Singapore's judiciary”.
Why it is needed While the Bill has elicited criticism for its efforts to restrict free expression, Minister for Home Affairs and Minister for Law Mr K. Shanmugam dispelled criticism that the proposed law suppresses free speech, and provided clarity as the “legislation deals with false statement of fact. It doesn't deal with opinion, it doesn't deal with viewpoints.” In targeting falsehoods alone, opinions, criticism and dissent are not in its area of enforcement. Hence, it recognises the importance of responsible speech and expression for a healthy democratic society.
In a similar vein, safeguarding the interests of its citizens has always been a priority for Singapore and the state has an extensive range of laws to regulate speech such as the Telecommunications Act, Protection from Harassment Act and the Sedition Act. A prominent example of stifling dissent and curbing the spread of deliberate online falsehoods in Singapore is the prosecution
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of the founders of socio-political website The Real Singapore (TRS). In 2016, the founders of TRS were jailed for sedition and ordered to shut the website down, as the series of articles published perpetuated discord between Singaporeans and foreigners for profit.
Thus, while the space for public discourse has shrunk, the proposed law may be able to clamp down false expression targeted at sowing seeds of public discord if applied successfully.
Finding middle ground As laws are designed to protect citizens, the actions of the government must not only be aligned with the law, but also serve a legitimate purpose. Regulating fake news is necessary and the effect of Singapore’s proposed strategy to counter misinformation will be seen in how the law is implemented. The amorphous problem of fake news creates a collective challenge for the government, and in its quest to quell disinformation, a balance between freedom of speech and protecting society from online falsehoods needs to be struck. T h e e v e n - h a n d e d a p p ro a c h t a k e n highlights the importance of a responsible speech for a functioning democracy.
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A 12-year Battle: Public Sector Hospital Sued for Negligence - Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2019] SGCA 13 By: Shermaine Lim, University of Birmingham
The Appeal: The patient, Ms Noor Azlin binte Abdul Rahman, sued Changi General Hospital (CGH) and 3 of its doctors in negligenceall while battling a debilitating illness and working for the past 12 years. Unfortunately, she lost the battle to Stage IV lung cancer, which had progressed to her brain, on 1st April 2019, right before she was due to receive compensation from the hospital.
The patient visited various doctors at the A&E Department at CGH on separate occasions in 2007, 2010 and 2011, where radiological reports (X-rays) were carried out. Each time she visited the A&E, she was assured that she was fine, or was instructed to return if she encountered further health problems, or told that she would be recalled if necessary. Ms Noor brought up two types of claims in negligence: (a) primary liability for negligence of the healthcare system in place [then], and (b) vicarious liability arising out of the negligence of each of the 3 doctors (however these claims were unsuccessful). The Court of Appeal found in favour of the patient, after an appeal from the High Court. Key Findings: 1. The standard of care required the hospital to ensure that radiological reports were properly followed up and given appropriate attention. In this instance, such reports should not be sent to the A&E
Department, but to the relevant Specialist Outpatient Clinics (SOC), who are better equipped and have more time to deal with such reports, and would be able to determine if medical intervention was required. 2. It was surmised that the standard of care applicable to A&E doctors should be directly proportionate to the reality of their working conditions. Due to the stressful conditions in the A&E, they cannot be expected to review patients and reports in the same manner as a General Practitioner or a SOC would. Furthermore, A&E doctors are permitted to adopt a targeted or localised approach to address the patient’s symptoms at the present moment in view of time constraints and resources. This standard of care imposed includes that of incidental findings, which should not be disregarded. 3. The Court also cautioned doctors against accepting a patient’s medical history at face value, and this ought to apply to all doctors and specialists of any kind. Such would not be the case if doctors had access to consolidated medical histories of patients. 4. The hospital’s [then] system for reviewing of radiological reports did not involve consolidating known information about patients. In fact, each report was treated remotely and as isolated incidents, and doctors were unable to access clinic notes by previous doctor(s). Otherwise, this would have likely led to an earlier diagnosis of Ms Noor’s illness.
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5. The hospital did not have a system [then] for recording decisions made by A&E senior doctors who reviewed the patient’s past radiological reports. In this case, CGH’s procedures allowed two senior doctors to override a radiologist’s recommendation for a follow up, and a record for their decision was not required. Should there be greater accountability between patients and doctors, and amongst doctors themselves, doctors treating the patient down the line would be aware of previous decisions made, and the patient can decide for himself how, if at all, they want their medical diagnosis to be followed up on.
Judgment In all, the Court found that:a. The A & E doctors were not in breach of their duty of care because the mere fact that a specialist had previously attended to a patient is not sufficient reason not to investigate further and to conclude that no further follow-up is necessary.
b. The specialist respiratory physician had breached his duty of care by not scheduling a follow up appointment given his uncertainty regarding the opacity in the claimant’s lung had been resolved. However, his negligence had not caused any delay in diagnosing her lung cancer, therefore the claim was dismissed in this respect.
c. The hospital was deemed to breached its duty of care to the patient on the following 3 bases:-
i. It should not be for the A&E department to review the report and to resolve all incidental findings even if it was an A&E doctor ordering the reports.
Results should have been routed to specific outpatient clinics better equipped with specialised knowledge and the relative luxury of time and attention.
ii. Lack of appropriate mechanism to consolidate what was already known prevented the comprehensive management of a patient.
iii. No system to properly record decisions made.
d. This negligence had caused a delay in diagnosing the appellant with lung cancer. If not for the delay in diagnosis, there would not have been a progression of the lung cancer from Stage I to Stage IIA, the growth of the nodule, and the spread of the cancer to her lymph node.
Moving Forward: This decision represents the first time a public hospital in Singapore has been held negligent, highlighting problematic areas in healthcare institutions that ought to be reviewed and changed. Changes are likely to be made with regard to the collation and accessibility of known patient medical history and information, so as to allow a more accurate diagnosis for future medical purposes. Furthermore, healthcare institutions should ensure that medical findings are communicated to the patient, even if no further intervention or assessment is required, for the patient’s own knowledge. In addition, doctors ought to exercise greater caution when a patient reiterates his medical history as well. This brings up several issues-- to what extent must a doctor investigate medical history narrated by a patient/caregiver and what must the 9
doctor do to satisfy this standard of care? Clearly, it would be impractical to impose a defined duty of care due to the multitude of medical injuries and illnesses. Hopefully, there will be greater clarity and direction in the near future in order to maintain a high standard of healthcare in Singapore.
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FEATURES
Reviewing Informed Consent: A Good Move? By: Ronald Lee, University of Bristol
In March, the Singapore Medical Council (SMC) disciplinary tribunal made a landmark decision to fine an orthopaedic s u rg e o n t h e m a x i m u m p e n a l t y o f $100,000 for failing to inform a patient of possible complications from a common steroid injection. Since then, there has been a marked move towards reviewing the doctrine of informed consent in Singapore.
Senior Minister of State for Law and Health, Edwin Tong announced the review two weeks after the tribunal decision. He emphasised that a doctor has to ensure a patient knows what the treatment options are, benefits and material risks associated w i t h t h o s e o p t i o n s . F u r t h e r m o re , reviewing these procedures will also help to prevent “defensive medicine” which is when doctors take steps to protect themselves from malpractice liability, such as putting the patient through unnecessary tests, in turn increasing the cost of medical treatment.
Explaining Consent Consent from a patient to engage in treatment, is a core principle in the practice of medicine, and allows patients to become partners in treatment that is aligned with their own personal expectations. Respecting a patient's autonomy to make their own decisions is one of the ethical principles in medicine which stipulates that an adult patient who is mentally competent has the right to refuse any treatment, even if it may be an unwise, or even a potentially dangerous choice (provided the patient understands the consequences of his decision). However, this stance is not adopted by all medical disciplines.
Challenges In the field of psychiatry the refusal of appropriate treatment in certain mental illnesses is commonly viewed as a result of the illness depriving the patient of the mental capacity to exercise genuine autonomy. Hence, to most practising psychiatrists, allowing mentally ill patients to decide on accepting treatment which would help them is something that could amount to acting contrary to the duty of care that is owed to the patient. As such, psychiatrists have voiced concerns over the review of the doctrine of informed consent.
Even though, for especially disturbed and resistive patients, where listening and persuasion is ineffective, it is possible to involuntarily commit an individual to treatment with the assistance of the police. Such provisions exist under the Mental Health (Care and Treatment) Act, but taking such arguably extreme measures is not straightforward. The experience can be traumatic and even humiliating for the patient, and similarly a painful incident to witness for the family who empathises the patient's distress and fears the further w o r s e n i n g o f a n a l re a d y s t r a i n e d relationship. This is further exacerbated if the patient has a preconceived resentment for health care professionals. Therefore, psychiatrists often face ethical dilemmas in which they must balance the rights, interests and safety of others in the community with those of their patients. Moving Forward Hence, amidst the review conducted by the Ministry of Health, it is imperative to consider the novel duty situations within the field of medicine which may require special exceptions to adapt to the different 11
medical conditions of patients. This is especially so for patients who lack the mental capacity to make an informed and rational decision on their own.
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SPONSORSHIP UPDATE
Dear Members,
As you may know, sponsorships form the backbone of our society. On this note, the society is glad to announce and share the following news regarding sponsorship upgrades:-
1. TSMP being incorporated into silver tier sponsorship. 2. WongPartnership upgrading their existing sponsorship package from silver tier to gold tier sponsorship. Our society wishes to thank these sponsors for their generosity and all existing sponsors for their continued support of the society’s work.
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