- Legal Commentary
This case involves the balancing of a young person’s right to autonomy and the desire to protect her from harm. No Singapore court decision has determined whether the doctor owes a duty to the parents of the doctor’s 16-year-old patient, to warn them that their child is engaging in sexual activities, and who subsequently has had an abortion. Similarly, the issue of whether the doctor has a duty to protect the minor in such circumstances has also not been tested in the Singapore courts. Nonetheless, it is very unlikely that either duty will be found in this case.
The general rule is that doctors owe a duty of confidentiality to their patients. This duty extends to children, and although no Singapore court has ruled on the matter, the law in England is clear.1 It is enshrined in section 22.214.171.124 of the Ethical Code & Ethical Guidelines of the Singapore Medical Council. It is not absolute and a number of exceptions have been carved out. The confidentiality duty can be overridden by legislation, court order, the public interest, or other justifiable circumstances that the doctor believes warrants disclosure.
The age of consent for non-commercial consensual sexual activities in Singapore is 16.2 Therefore, there is no statutory responsibility on Dr. C under the criminal law to report the patients’ sexual activities to the authorities or anyone else. There is no other legislation or court order that compels disclosure. It is highly unlikely that the public interest would be served by disclosure. The consequences of such disclosure to the public interest were aptly put in a recent English case, when J. Silber held that if a confidentiality duty was not imposed, it “would probably or might well deter young people [End Page 262] from seeking advice and treatment on contraception, sexually transmitted diseases and abortion, and this would have undesirable and troubled consequences”.3 The last exception offers the greatest latitude for doctors to disclose if they believe there are other justifiable circumstances that would shift the balance in favour of disclosure. There are strong reasons to maintain confidentiality in Miss M’s case and although an argument can be made for disclosure, that argument is relatively weak.
Miss M’s parents are understandably worried about her but Dr. C should not breach the duty of confidentiality owed to the patient even though she is only 16 years old. It is irrelevant that Miss M’s parents are paying for their daughter’s treatment. The doctor-patient relationship is between Dr. C and Miss M, and her parents have never been involved in the consultations or treatment decision-making process. They have not insisted on attending the consultations with their daughter, nor did they appear to object to Miss M consenting to treatment. Prior to their complaint, they had not sought any update or information about their daughter’s condition from Dr. C. Miss M specifically asked Dr. C not to reveal the contents of their conversations to her parents at the first consultation and the doctor agreed after attempting to convince her that it would be preferable to include her parents in the consultations. Miss M was obviously concerned about confidentiality and sought clarification from Dr. C. It appears as though Dr. C determined that Miss M had the capacity to exclude her parents from the consultations, and later to make her own treatment decisions, as a mature minor, and their doctor-patient relationship proceeded on that basis.
It may be in the public interest for Dr. C to disclose confidential information about Miss M, even if she refuses to consent to it, if the doctor believes it is necessary to protect her from serious harm. Any such decision must be made with the patient’s best interests in mind. Examples of such harm include situations where the patient is at risk of serious physical abuse or has voiced a desire to commit suicide. Engaging in sexual activity with an older boy is unlikely to result in such serious harm, although harm may result. In this case, that harm manifested itself in an unwanted pregnancy...