A Final Many Words On The LLA Case

And so, it has come to pass, on appeal from SMC against its own Disciplinary Tribunal (DT), our wise Judges have ruled that Dr Lim Lian Arn (LLA) is not guilty of professional misconduct. Everybody has to pay their own costs, including Dr Lim and SMC’s lawyers. Other than the lawyers and the DT, everyone lived happily ever after. And so the story comes to a happy ending.

Not quite.

Learning Points from the C3J Judgment of the LLA Case

First, a few learning points can be gleaned from the Judgment that was issued on 24 July 2019 by the Court of Three Judges (C3J):

One key point was that the SMC’s position to call for a five-month suspension for Dr LLA was “wholly unwarranted” and that the “DT also fell into error by too readily accepting Dr LLA’s submission (made in response to the five-month suspension) that the maximum fine of $100,000 would be appropriate”. (para. 63). This hobbit couldn’t agree more. To me, it means that how a sentence is called for by SMC must be dependent on the specific facts of the case, and that the several calls (at least in four previous cases) before the LLA case by the Court of 3 Judges (C3J) for harsher sentences and sentence re-calibration against doctors must be taken in their specific contexts on these occasions and not to be interpreted as “general instruction” for all cases. This is helpful.

Personally speaking, the most helpful information in the Judgment is it makes our clearly how professional misconduct is to be proven (summarised for brevity and not necessarily for high fidelity):

  • Establish what is the applicable standard
  • Establish whether there is departure from this standard
  • Prove whether this departure is serious enough to constitute professional misconduct. With respect to negligence, it must be “serious negligence” and departure from standards must be “serious disregard” or “persistent failure” to meet the standards set out under the ECEG.

The Judges took effort to state that the lawyer for LLA “was mistaken” when he regarded that a breach of a “basic principle” in the ECEG amounted to professional misconduct. They also stated (para. 30 of Judgment) “there must be a threshold that separates relatively minor breaches and failures from the more serious ones that demand disciplinary action. Were it otherwise, doctors would find it impossible to practise in a reasonable way”. Hurray.

The extent and coverage of expert evidence was also elaborated on. The Judgment stated that it was not enough for an expert to merely state what he or she thinks how things should be done. The expert must also present “the underlying evidence and the analytical process by which the conclusion is reached” (para 43) for the expert opinion to hold sway.

On the subject of informed consent, the Judgment reiterated essentially the basic requirements of the Modified Montgomery (MM) Test:

  • Establish what is relevant and material information to the patient. Materiality of a risk or complication is generally determined by its severity and likelihood and “largely a matter of common sense” (para. 50).
  • Establish that the doctor possesses this information
  • Establish whether the doctor can justifiably withhold this information from the patient

On the subject of defensive medicine, the Judgment defined or described it as “the situation where a doctor takes a certain course of action in order to avoid legal liability rather than to secure the patient’s best interests”. The Judges said that it is a mistake to classify “information dumping” (i.e. doctors overwhelming patients with a deluge of information in order to protect themselves legally) on patients by doctors as defensive medicine because “giving too much information will not avoid legal liability” (para. 54)

Informed Consent

As this hobbit has said below, in our local context, “just follow law”. Whatever the Judges have said is case law and therefore has to be adhered to. But perhaps in my senescence and folly, please allow this old coot blabber a few irrelevant and immaterial things about three points – informed consent, defensive medicine and information dump

MM Test

The MM test is largely a matter of common sense. As my professor (now emeritus professor) once said to me when I was a medical student, “common sense is uncommon”. Were it not so, it would not have been necessary to introduce the Bolitho Addendum to the Bolam test. The Bolitho Addendum is essentially an addendum to require common sense when applying the Bolam test. The MM test essentially requires even more common sense than the Bolam-Bolitho (BB) test because it demands the doctor to establish what is material and relevant to the patient.

Don’t get me wrong, I think being patient-centric is good. How to achieve this is already cast in legal stone (Case law – MM Test) even though I am still trying to grapple with implementing this in my clinical practice. To this hobbit, essentially, the MM Test ignores a basic dimension of existence: time

For one, a three-step test doesn’t quite work for me when I see 40 patients a day and I prescribe hundreds of medications, investigations.

Secondly, what is relevant and material to the patient changes with time: – his circumstances changes and his memory fades. For the same procedure, what is of concern to him one month before the procedure can often be quite different when it is one week or the day before the procedure. And all this could be quite different one-month post-operation when his concerns are quite different from pre-op. As one doctor wisely said, “often the only relevant risk or complication is the one the patient develops post-op”.

Also, there are scientific studies to prove that a patient’s retention of information or advice given to him by the doctor is really quite limited and diminishes with time. You may have told him to your best effort what you think is relevant and material, but he may have forgotten or ignored what you said and he then turns around and sues you.

Another smaller issue about the MM test is the severity and likelihood matrix. As advocated, you should tell the patient the risk if it is more serious, even if it is unlikely). The most serious risk is of course death. Another doctor also said “once you mention “death”, the patient’s mind goes blank thereafter”. But the patient still signs the consent form and undergoes the procedure usually. And then he may also turn around and sue you later.

There is little doubt that the MM test brings increased uncertainty to the practice environment and doctors generally don’t like it. However, that doesn’t mean doctors are against being more patient-centric. It is an argument of false dichotomy to say that just because many doctors are uncomfortable with the MM test it suggests the medical profession is not supportive of being patient-centric.

Defensive Medicine

We now come to the difficult subject of defensive medicine.

Let us now return to the Judgment delivered on 12 May 2017 by CJ and four Judges of Appeal in the Hii Chii Kok vs London Lucien Ooi (a civil suit and NOT SMC case). This was when the MM test was introduced as case law. Here are excerpts from Paras 84, 85 and 87 “The argument for full retention (of Bolam and Bolitho)” (The portions I wish to emphasise are in italics and underlined)

84 What of the view that the Bolam test and Bolitho addendum should not be interfered with to any degree, even as regards advice? The strongest argument in favour of that view is the contention that if the Bolam test and Bolitho addendum were abandoned in favour of a standard that placed greater emphasis on the interests and perspective of the patient, it would spark an unacceptable increase in medical litigation. This would, it is said, have two deleterious effects: first, it would drive up the cost of medical malpractice insurance, and thus increase the costs of healthcare to the public, and second, it would increase the pressure on doctors to adopt what is commonly referred to as “defensive medicine”.……….(rest of para deleted)

85 It cannot be denied that the cost of healthcare and the practice of defensive medicine (which also feeds into the cost of healthcare to some extent) are both real concerns. However, we do not accept that they provide sufficient reason for the court to shut the door to reform entirely. In the first place, it has not been distinctly established that any departure from the Bolam test would in fact have the consequences of more medical litigation, higher insurance premiums and greater healthcare costs….. (portion deleted)….Furthermore, we note that certain factors which have driven up the cost of medical professional insurance in the US – the jurisdiction in which such concerns have been perhaps the most prominent – are not present in Singapore. The US legal system features jury awards which often would, in Singapore, be considered highly inflated; allows contingency fee arrangements (encouraging opportunistic negligence suits); and does not follow a “loser pays” principle of costs (thus reducing the disincentive for litigants or law firms to bring weak or speculative claims). In the absence of such factors in Singapore, we see no reason to believe, without clear evidence, that a carefully calibrated shift in the standard of care is likely to lead to a drastic increase in the frequency and value of medical negligence lawsuits in Singapore.

87 The problem of defensive medicine falls more squarely within the ambit of the court’s inquiry, since it directly implicates the question of whether the proposed standard will fortify or hinder the medical profession’s fulfilment of its duties to its patients. In that regard, we note that unlike a wholesale rejection of the Bolam test and Bolitho addendum, which the court in Gunapathy rightly warned against (at [144]), reform of the more limited nature being considered appears unlikely to contribute significantly to the practice of defensive medicine. The implications of Montgomery are limited to advice, whereas the concerns in defensive medicine pertain mainly to diagnosis and treatment……..We therefore do not think the spectre of defensive medicine is a strong reason to shy away from reform in the area of advice specifically.

Paras 84 to 87 in the 12 May 2017 Judgment on the Hii Chii Kok case was given as consideration on why a departure from Bolam and Bolitho can be seriously countenanced; the promulgation of the MM test then took place later in this Judgment. To summarise:

  • The fear of a rise in malpractice costs and increase in practice in defensive medicine are important considerations as to whether one should depart from the BB test
  • But these fears (as at 2017) were unproven and theoretical at best (i.e. not “distinctly established”)
  • Even if we depart from the BB test, Singapore does not have the pre-existing conditions (like in USA legal system) for a drastic increase in frequency and value of medical legal lawsuits, which in turn will lead to defensive medicine taking root quickly – i.e. contingency fees (i.e. loser pays) and high jury awards.
  • Defensive medicine doesn’t quite extend to the realm of medical advice (of which informed consent is a part of) and is limited to diagnosis and treatment.

Departure from BB test

In a study commissioned by the College of Family Physicians Singapore and Singapore Medical Association to examine the effect of the SMC Judgment in the LLA case on doctors’ behaviour earlier this year, it has been proven that these fears are clear and present and very real.

  • The number of doctors surveyed who provided an H&L injection decreased by 14.6%
  • The median price for the injection increased from the 0 to $100 band to >$100 to $200 band.
  • The number of surveyed doctors who charged more than $1000 went up eight-fold from 8 to 65.

This study therefore documents a quantitative increase in the practice of defensive medicine and healthcare costs when the BB test was departed from . It can be argued that the LLA outcome came about from a botched implementation of the MM test, but it is a departure from the BB test nonetheless.

The ‘free’ SMC process can lead to defensive medicine taking root quickly

The next point that Singapore does not have the pre-existing conditions that the US legal system has is interesting. It is true that Singapore doesn’t have high jury awards and contingency fees. But these advantages apply only to civil suits. For SMC complaints, the environment may be just as favourable for an increase in medical-legal complaints than the US – it is practically free to the complainant (no financial risk) to embark on a SMC complaint! The whole SMC disciplinary process may be no less frightening and painful to the doctor than a civil suit (if not more), hence the flight to defensive medicine in Singapore may be no less quick and intense than the US. So this assumption that Singapore legal system has a more agreeable climate to doctors is correct when applied mainly to civil suits. The doctor does not only flee towards defensive medicine out of fear of being sued in a civil case and paying hefty damages, but also out of fear of getting involved in the SMC complaints and disciplinary process, which is free to the complainant.

Defensive medicine is not static – it goes where the attack is targetted

Lastly, the point on defensive medicine being limited to diagnosis and treatment and not extending to medical advice needs some discussion. Let’s breakdown the words ‘defensive’ and ‘medicine’, for a start.

The practice of medicine is dynamic and ever-evolving. That is why we need to gain 50 CME points every two years, to keep us up to date with the changes in the practice of medicine. The practice of defensive medicine is no different, it is also evolving with the times. It is not static. Just because in the past the practice of defensive medicine is limited just to diagnosis and treatment does not mean that it will always be so.

The word ‘defensive’ has military roots, as in ‘defense’ and ‘attack’. Any SAF serviceman will tell you, defense is not static either. You prepare a robust, in-depth defense where you think the attack will most likely target. High profile cases involving senior doctors accused of not getting informed consent send a strong signal that patients (and lawyers) are focusing their efforts in this area. These well-known cases include Dr Eu Kong Weng, Dr Ang Peng Tiam, Dr Leslie Lam and this LLA case. It doesn’t matter if the complainants were successful or not, just the pain and trauma of going through responding to a complaint is sufficient motivation for doctors to focus their defensive efforts to prevent more complaints in this area.

Defensive medicine is divided into avoidance and assurance defensive medicine. Ordering more and unnecessary tests and investigations is a classic example of assurance defensive medicine because a doctor is afraid he will be complained against or sued for a missed diagnosis. Similarly, an information dump carried out because a doctor is afraid he will be complained against or sued in the area of medical advice, is in the opinion of this hobbit, a new form of assurance defensive medicine. The medical profession should not rigidly limit ourselves to what was previously described – that defensive medicine only exists in diagnosis and treatment. Defensive medicine will occur where the doctors think they will be attacked, be it in the areas of diagnosis, medical advice or treatment.

Information dumping
That brings us to the statement that information dumping is not defensive medicine because “giving too much information will not avoid legal liability” by our learned Judges. The judges are of course absolutely correct since from where they sit – what is inefficacious in avoiding legal liability in the court room or a disciplinary trial should not be considered as defensive medicine.

But as practicing doctors, I suppose, we have to look at things more upstream. As the age-old saying goes, “prevention is better than cure”. What is inefficacious in a disciplinary trial or the court room is an inefficacious or useless cure. But it may still work as a preventive measure. This is because it is human nature to take comfort in numbers or quantity. There are so many examples of this. We usually feel better when we write a longer answer to an exam question when compared to a shorter one (the test scores may have no correlation to the length of answer of course). We take psychological refuge in buying a thicker textbook than a thin one (whether we actually finish reading the textbook or understand what’s written inside is another matter altogether).

It is for the same reason that our consent forms are getting longer and longer. A longer consent form looks formidable and gives us psychological security. Remember the days when we could combine both the surgical and anaesthesia consent-taking into one page? Those days are gone. And if they still do exist, many would wonder – will such a short form suffice?

Due to information asymmetry, the buyer of a service also derives satisfaction and gauge quality by substitute measures of quantity (even though there is little correlation between quality and quantity). An inpatient given a lengthy discharge summary which is no more than a “cut-and-paste” job may think the medical officer has been diligent while a medical officer who has assiduously prepared a concise one-page discharge summary may be less appreciated. For about the same amount of money, a patient given 5 different drugs for common cough and cold often thinks he has been given quality treatment and may consequentially conclude the other doctor who gave him only 2 drugs earlier was tardy.

So, both doctors and patients derive comfort and satisfaction from quantity. This is just simple human nature. If that is so, we will also believe that with more information engendering more comfort and satisfaction, complaints are therefore less likely to occur. It is therefore no surprise that information dumping will be adopted in an attempt to prevent complaints from occurring, even though it is inefficacious in avoiding legal liability.

This psychological comfort derived from quantity is accentuated when there is greater uncertainty, as is the case with the MM test when compared with the BB test. The greater uncertainty arises because It is extremely difficult for a doctor to titrate accurately the exact amount and nature of information that is material and relevant to a particular patient in a particular context under the MM test. This hobbit thinks most doctors believe it is more likely that a patient is dissatisfied with less information than more. As such, most doctors will intuitively also believe that it is probably easier to prove a lack of informed consent arose from insufficient information rather than excessive information.

It should therefore come as no surprise that a doctor will give more information than what is actually needed.

Conclusion

After this long spiel of about 3300 words, what are the take-home messages? It’s still more of the same. We are a law-abiding profession in a society that enshrines the rule of law. Whatever is law, be it legislation or case-law, must be followed. There is no other way. Whatever this hobbit rambles or blabber about, is irrelevant and immaterial.

In the area of medical advice, this hobbit will still give substantially more information than he previously did in the BB test era. This is my form of Survival Medicine.

The answer to the question of when and how a generous amount of information limps across the line and qualifies as information dump, is best left to minds that are far more brilliant and incisive than this hobbit, who admittedly suffers from a little lack of this precious commodity called common sense. This lack may be a result of the imperfect hobbit condition that I am born into.

Academic Meritocracy and Medical School Admissions

Recently there has been some disquiet about the NUS Faculty of Medicine (sorry, this YLLSOM thingy never quite jelled with an old coot like me. My degree is from Faculty of Medicine, not some guy who gave a lot of money to NUS) accepting students from ‘less than the best academic’ records and more varied sources (read: not just RI and HCI).

A certain Anthony C.H. Leong wrote in The Straits Times (23 July 2019), “What is wrong with the meritocratic old ways of judging by the quality of the candidate’s academic results, further refined through an interview? We tell our children to work hard academically to get the relevant results for the course they wish to pursue in university, only for them to be denied a place by some populist policy. Their parents will have to cough up a fortune to send them overseas. I don’t think those who are unfairly rejected, especially those who do not have the means to go overseas to study, would think very kindly about their country and its professed meritocracy”.

There are quite a few points raised in this quote that needs addressing. First, we need to understand what is the purpose of a medical school, especially a state-funded medical school. The purpose of the NUS Faculty of Medicine or YLLSOM (OK lah, he did give a lot of money to get his name on this school) is to produce the better doctor, or the best doctors it could to serve Singapore. This hobbit emphasises “to serve Singapore” because YLLSOM is largely state-funded (i.e. by taxpayers). To serve Singapore may be of secondary importance if it was privately funded, but it is not.

The primary purpose of YLLSOM is not to fulfil someone’s aspiration to be a doctor, although the individual’s aspiration and the YLLSOM’s primary purpose are not in conflict with each other, philosophically speaking. This may sound somewhat brutal, but that’s  the hard truth. They only come into conflict because of the scarcity of resources – the number of places YLLSOM can take, with the limited resources it has (funding, manpower, space etc), versus the number of people who want to become doctors.

Second, a primer on meritocracy. The word meritocracy comes from the word ‘merit’ obviously. Meritocracy is about putting people in power and/or privilege due to the ability they have, and not due to other factors, such as wealth or social position/inherited titles. We seldom say it, but the people rewarded in a meritocracy, by a meritocracy, are actually the “meritorious” (deserving of merit).

The Cambridge Dictionary describes meritocracy as a “social system, society, or organisation in which people get success or power because of abilities, not because of their money or social position”.

The next point about a meritocracy is that there are many forms and notions about meritocracy. What Mr Anthony Leong has described is academic meritocracy. This concept of meritocracy is widely held by large swathes of society, no thanks  to cultural or even governmental norms. But it is not the only form of meritocracy. For example, when we reward athletes for their performance in competitive sports or highlight citizens for acts of kindness, service to community, valour, or moral fortitude, these are, in a way, also forms of meritocracy, but the norms are different. A National Day Award from the government, such as the Public Service Star, is based on non-academic norms of meritocracy. A person who swims the fastest 100m butterfly in an Olympic Game gets the gold medal and is given S1M. The world and Singapore society have decided that he is “meritorious” and hence deserving of the medal and cash award. But it is another form of meritocracy that is not academic meritocracy. Academic meritocracy is simply a form or meritocracy based on academic ability and performance.

Dynastic and feudal China since  the Sui Dynasty in 6th century AD practised academic meritocracy through the imperial exams. People who excelled in these exams were put in positions of power as officials of the imperial court. Sometimes, the Emperor himself witnessed the final round of these exams himself and marked some of the scripts! Surely this is sponsorship and belief in academic meritocracy of the highest order! Yet one of the main reasons China faded as a superpower in the Qing Dynasty is that it clung to outdated norms of academic meritocracy. People were rewarded and appointed because they excelled in the Classics and Confucian Texts and not on Science and Maths. The world (especially Europe) moved on while China was stuck in backward feudalism. So even as we support and uphold meritocracy, we need to examine and revisit what are the norms of society so that the form and substance of meritocracy remains relevant to the needs of society. Academic meritocracy is no exception.

Back to YLLSOM. As aforesaid, its main aim is to produce the best doctors that it could to serve Singapore. Academic meritocracy is nothing more than an allocative tool to achieve this main aim. Academic meritocracy is not an end in itself.

There are several ways to look at what YLLSOM is trying to achieve by moving slightly away from pure academic criteria for admission into its ranks. First, it is an admission that academic performance is NOT the only meritocratic norm for admission.

Secondly, the correlation between a good doctor and outstanding A level academic performance is not that strong. It is true that you need to have above average academic performance to survive the rigours of medical education. But is a straight As at H2 with three H3 paper distinctions student more likely to make a good doctor than a student with 4As at H2 with no H3 papers? Or will the student with 2A and 1B at H2 necessarily make a worse doctor than a student with straight As at H2 level? The answer is obviously “no” to these questions. Beyond attaining a minimal level of academic achievement necessary to suggest the student has the ability to complete his MBBS, academic performance at A levels does not predict or correlate with his eventual performance as a doctor.

Thirdly, by admitting people from different backgrounds, YLLSOM is perhaps admitting that it is important to have diversity in the medical profession. We need brilliant people to be the next professors of medicine and make scientific breakthroughs. We also need less brilliant (but still intelligent-enough) people to be  the doctors serving patients in the community. Both are equally important, and everyone else in between.

Diversity also prevents groupthink. The risk and downside of groupthink is very real, whether in the medical profession of any organisation. Just look at the Hong Kong government now and the unrest in its society. It is probably a result of groupthink in its highest ranks that prevented them from seeing the grave repercussions that have arisen from trying to push through the now infamous Extradition Bill.

Actually, the policy of choosing people not just based on the best academic performance for Medicine is not new. It is just expressed in a different form. Those of us who entered NUS Medical School in the eighties will remember that the government then had a policy of deliberately trying to shunt the best students to other fields such as Engineering or the Arts because it felt it needed the best academic talent not to be concentrated just in Medicine. There was apparently a PSC officer at the medicine admission interviews (sitting at the extreme left or right of the panel of interviewers) who would offer you “a deal” of sorts – would you want to consider a teaching scholarship? Or a PSC scholarship to Cambridge to read Maths? We never knew whether these offers were real or not, but we were all advised by our seniors to say “no” to show our resolve to become doctors. I know of quite a few people with A level “perfect scores” who did not get into medicine. And while there was no evidence to prove so, people with less than perfect scores seemed to have a better chance of getting into Medicine in the eighties.

In summary, this hobbit thinks:

  • The job of YLLSOM is not to give out places as awards or rewards for academic excellence under the framework of academic meritocracy. It’s main job as a publicly funded medical school is to produce the best doctors it could for Singapore.
  • Academic meritocracy, which is meritocracy based on academic ability, is not the only form of meritocracy. Academic meritocracy is often used as an allocative tool, but it is not an end in itself.
  • The norms of meritocracy are as important as meritocracy itself. The norms determine who is meritorious, and these norms have to be examined and revisited from time to time so that meritocracy remains relevant to the needs of society.
  • Beyond attaining a required level of academic performance that suggests the person can withstand the future rigours of a medical education, there is little correlation between actual performance as a doctor and his A level results.
  • Diversity in a medical school cohort is important, because each cohort has to fulfil different roles in society. Diversity also prevents groupthink.

 

WMED Part 2: The SSC Case, What Goes Around Comes Around

On 21 May 2019, the SMC issued a press statement regarding psychiatrist Dr Soo Shuenn Chiang’s case that is to put it mildly, interesting.

Just to recap, Dr Soo was fined $50,000 by SMC for professional misconduct [Condensed from a previous posting: Weapons of Mass Ethics Destruction (WMED), published 9 Mar 2019]:

  1. Dr SSC was a victim of a patient’s brother who posed as the patient’s husband to deceive Dr SSC.
  2. Apparently, this imposter has not been punished so far for his act of pretending to be someone else.
  3. Dr SSC was fined $50,000 for writing and giving a memo to this imposter free-of-charge.
  4. The imposter told Dr SSC the patient was apparently suicidal and needed to be admitted to IMH against her will under the Mental Health (Care and Treatment) Act.
  5. Dr SSC’s main sin was that of failure to verify the imposter’s identity and authorisation. It is important to reproduce here the entire paragraph (para. 30) from the Grounds of Decision (GD):

We also note that the preventive actions (i.e. verification of identity and authorisation) to be taken were not onerous. As submitted by Counsel for the SMC, the steps to be taken by Dr Soo were simple. We could only conclude that the failure of Dr Soo to take such steps reflected both a lack of concern for or appreciation of the required standards and an indifference to the patient’s medical confidentiality.

Now fast forward to the 21 May Press Statement. The SMC is now applying to the Court of Three Judges (C3J) for Dr Soo’s conviction to be set aside, as SMC has received new information that “raises doubt on the circumstances surrounding the incident, in the interest of justice”.

It is very important to note that the original application by SMC to the High Court was “for an extension to appeal for a reduction of the fine imposed on against Dr Soo”. In other words, the original intent was a reduction in the fine/punishment has now been changed to quashing the conviction. If this goes through, Dr Soo will NOT be guilty of professional misconduct, and not be fined less. He won’t be fined at all, if the conviction is set aside.

Apparently after the DT’s decision to fine Dr Soo $50,000 broke, the patient’s brother posted his version of the story on social media. Arising from this, “SMC approached both the patient’s brother and husband to record their statements. These statements were not obtained by the Complaints Committee (CC) prior to its referral of the patient’s complaint against Dr Soo for a formal inquiry by a Disciplinary Tribunal (DT)”.

What this seems to suggest is that:

  1. The CC worked on a different set of information that was deemed as facts. The CC had come to the conclusion that it had to refer Dr Soo to the DT.
  2. The DT, working on the same set of facts, convicted Dr Soo and fined him $50,000.
  3. However, since taking statements from the patient’s brother and husband, there is a new set of information and “facts”.
  4. This new set of information or facts “raises doubt” on the circumstances of the incident, which of course also raised doubt as to whether Dr Soo should have been convicted at all
  5. Therefore, the SMC will now be applying to C3J to set aside the conviction.

This is a Face Palm X 50,000 times moment. One Face Palm per dollar.

Firstly, allow this hobbit to declare that this blog is not an attempt to influence the outcome of the appeal hearing, but a discussion about what has apparently transpired so far that led to Dr Soo’s conviction and the SMC’s appeal to set aside that conviction, based on what is publicly available especially the 21 May press statement and the SMC DT’s Grounds of Decision for this case.

Basically, SMC CC and SMC investigators (if any were involved at all) did not verify the facts, then proceeded to refer the case to DT, which in turn convicted and punished Dr Soo for not verifying the facts.

The irony is so thick, you can cut it with a lightsaber-sized diathermy. The accuser who accused Dr Soo for not verifying the facts was in fact, itself guilty of not verifying the facts.

This hobbit doesn’t know whether to laugh or to cry. Someone should write this into a play or something like that and make it into a literature textbook for secondary school students.

But it is good that at least some folks now finally appear to understand the word “doubt”. Because SMC disciplinary proceedings are ‘quasi-criminal’ proceedings, “doubt” is an especially important word. In criminal proceedings, the accused is deemed innocent until proven guilty. The burden of proof in criminal proceedings is “beyond reasonable doubt”, which is a very high threshold or stringent test to convict a person. That means a person can only be found guilty in a criminal proceeding when it is beyond reasonable doubt he is indeed guilty.

The same threshold applies to SMC disciplinary proceedings, although one must be forgiven if one questions whether the test of “beyond reasonable doubt” has been really competently applied in some cases, given how doctors appear to so easily convicted.

So, when you did not verify the facts before hand, and you are now unsure if the facts were even correct in the first instance, how you can say Dr Soo is “beyond reasonable doubt” guilty of professional misconduct”? Naturally, the SMC now has to apply for the conviction to be set aside, “in the interest of justice” after prosecuting him in the first place. The SMC is now just only appealing against itself but of course, the ultimate power and decision to set aside or not the  SMC DT Judgment, rests with the independent C3J.

Let is now go back to parts of para. 30 of the Grounds of Decision again for the sucker punch:

“We could only conclude that the failure of Dr Soo to take such steps reflected both a lack of concern for or appreciation of the required standards and an indifference to the patient’s medical confidentiality”.

Please note the bits in bold. If you edit the bold bits accordingly, it can also apply to whoever in SMC who was supposed to verify the facts before the CC and DT could decide on the case:

“We could only conclude that the failure of SMC to take such steps reflected both a lack of concern for or appreciation of the required standards and an indifference to Dr Soo’s rights to justice through a disciplinary process that is based on verified (not purported) facts surrounding the case”.

Obviously, the SMC also suffers from not having the services of a “verificationologist”!

An important question that needs to be asked is, how true was the original complaint, in the light of new information? All complaints made to the SMC are accompanied by a statutory declaration, which is a very serious undertaking. If the facts are so different, and that the statutory declaration was made based on false information, what further steps should be taken, to investigate and perhaps even punish the person who made a false statutory declaration? Was the disparity between old and new information just a difference in perspective or opinion, or a complete falsification of events and facts and an act of deception by a person?

Given the fact that investigations can now only be performed at the CC level and NOT the DT level, another question that needs to be asked is, what actual investigations (if any) were done for Dr Soo’s case? The larger question is, does SMC just take the complaints at face value and proceed to hear any case at the CC level, just because a complaint is accompanied by a statutory declaration?

Since we are on the subject of how to deal with complaints, it is heartening to note that on the same day (21 May 2019) it was reported that the MOH Review Workgroup (to review SMC) would look into screening out repeat cases and vexatious and frivolous complaints. MOH said that “such cases can make up about 10% of the complaints to SMC annually”. Currently, as long as someone makes a statutory declaration (which can be done for free at the SMC office), a CC has to be formed to look into the complaint, no matter how unreasonable or frivolous or vexatious the complaint appears to be.

MOH also said that “patients may face a time limit when filing complaints against doctors to the SMC in the future”. (CNA Report: Patient may face time limit to file complaints on misconduct of doctors: MOH). MOH noted that “quality of evidence would be diminished and that such a limit makes the process fairer”. The same report said that there were complaints brought to SMC even more than 15 years after the incident happened.

The suggested time-bar for making complaints has been said to be between 3 to 6 years (according to a Straits Times article dated 21 May 2019 – “Workgroup’s report aims to make medical disciplinary process fairer and faster”), which is reasonable and in fact already very generous. Currently there is no time bar at all for complaints made to SMC.

The Straits Times report also said this review workgroup will also clarify what exactly constitutes professional misconduct as well as informed consent. A clear understanding of both are necessary so that doctors will avoid practicing defensive medicine and over-treating patients and push up healthcare costs.

This hobbit thinks these are steps in the right direction and are long overdue. In addition, SMC should look into dismissing vexatious and frivolous complaints with costs so that these complainants know that there is a potential financial downside to their actions. This is not new, as The Law Society is already empowered to do so.

There appears to be some light at the end of tunnel. What has been reported is encouraging. But more can and should be done. This includes looking into how SMC, CC and DTs are constituted. How are the people who sit on SMC, CC and DTs chosen and trained to do the job they are supposed to do? The same principles apply to SMC prosecution lawyers – how are they chosen? How are they instructed by SMC? Who reviews their performance? In the area of informed consent, how can we have more clarity and flexibility at the same time (as said by Senior Minister of State for Health and Law Edwin Tong)?

The expectations are high that this workgroup will make a big difference to the currently manifestly unsatisfactory situation. But as a profession, we are also used to big disappointments. Hope for the best, prepare for the worst. I will still practise Survival Medicine for now.

 

If…..Would Be……

Declaration: this article is completely 100% satire and opinion, and hence does not come under the purview of the Protection from Online Falsehoods and Manipulation Act (POFMA). Nowadays,  one cannot be too careful about such things…..

OK, here we go…..

If private hospitals were handbags…..

  • Mount Elizabeth Orchard would be a Birkin (The older tai tais’ favourite)
  • Mount Elizabeth Novena would be a Kelly (More stylish for the younger but equally rich tai tais)
  • Gleneagles would be a Chanel 2.55 (always reliably upmarket)
  • Raffles would be a Kwanpen (local and upmarket)
  • Mount Alvernia would be a LV
  • Thomson would be a Coach
  • Farrer Park would be a Kate Spade
  • Parkway East would be a Bonia

 

If recent healthcare events were like Marvel Comics Universe heroes….

  • Informed Consent would be Spiderman (Swinging from doctor centric to patient centric and very sticky)
  • Third Party Administrators would be Thor (getting fat by doing little or no work)
  • HIV data leak would be Loki
  • NEHR would be like the Avengers Headquarters (Always getting attacked & repeatedly destroyed)
  • MOHH would be Captain Marvel (missing all the action when half the universe died)

 

If SMC affairs were likened to Marvel Comics’ Universe Infinity Stones

  • Lawyers would be the Power Stone (makes all other stones more lethal)
  • MOH would be the Mind Stone (can make SMC ownself appeal against ownself)
  • SMC Disciplinary Process would be the Time Stone (Can make time stop and really delay you to no end)
  • The latest SMC ECEG would be the Soul Stone (controls all life)
  • The Modified Montgomery Tests would be the Space Stone (warps spatial realities and laws of physics and increases uncertainty)
  • Court of Three Judges would be the Reality Stone (Can override SMC-judgment realities)
  • SMC Leadership possesses the Pym Particles like Antman (nowhere to be seen when a crisis like The Snap strikes)

 

If Public Hospitals were Star Wars Planets

  • Toa Payoh would be Alderaan (completely destroyed)
  • SGH would be Coruscant (very crowded, crazy traffic and damn stressful)
  • NUH would be Naboo (since it has produced three Sith Lords in succession)
  • TTSH would be the forest moon of Endor (where the fuzzy cute teddy bears live)
  • CGH would be Mon Calamari (Where all the blur sotongs came from, like Admiral Akbar)
  • SKGH would be Hoth (Frozen and Forgotten in the North)
  • NTFGH would be Cloud City of Bespin (All the verandahs look like they are in the clouds)

 

If doctors were Lord of the Ring places

  • CFPS would be like Gondor
  • Academy of Medicine Singapore would be like Rivendell where the very cultured and elegant immortal elves rule (or so they would like to think)
  • The Alumni would be the Dwarven Moria in the Misty Mountains
  • SMA would be Hobbiton
  • COMB would be Barad-dur, and
  • Chee Yam Cheng would be Gandalf

 

If public healthcare were like the Game of Thrones

  • The public healthcare clusters would be like the kingdoms and households of Westeros
  • IMH doctors are like the Night’s Watch order (they guard The Wall and the rest of us don’t really know or want to know what’s beyond it)
  • MOH HQ is like the Targaryens in Pentos, Essos (Not really in charge anymore but still want to go back to the glory days, but be careful, they still own the dragons)
  • MOHH is like the House of Stark (it has taken over effective control over the running of King’s Landing)
  • Medisave, Medishield Life, Medifund, Fee Benchmarking, CHAS, Pioneer Generation Package, Merdeka Generation Package make up the Faith of the Seven

 

If Healthcare were like the world of Harry Potter,

  • Lawyers would be folks skilled in Parseltongue (A language that is associated with the Dark Arts)
  • Managed Care and TPAs would be dementors (They can suck the life out of you slowly)
  • Doctors who are senior hospital administrators would be Animagi (Can transform into animals once they are promoted to these positions)
  • Doctors who work in MOH HQ would be Metamorphmagi (who can change their appearance into something completely different once they work in MOH HQ)
  • Medical Concierges who ask for 15% or more of your bills can be considered as Death Eaters (like Voldemort)

 

If medical schools were like car brands

  • YLLSOM would be like Toyota (Cheap and Reliable, but boring)
  • Duke-NUS would be like Maserati (great engine sound, but performance-wise still cannot compete with the best)
  • TTSH would be like Nissan and Renault alliance (a bit confusing, considering its linkup with Imperial in the LKCSOM
  • Most Irish Medical Schools would be like Saab (no longer seen here)

 

If tertiary public hospitals were supermarket chains….

  • NUH would be Cold Storage (more atas)
  • TTSH would be Sheng Siong (Cheap and friendly)
  • SGH would be NTUC Fairprice (trying to be atas, like Fairprice Finest)

 

 

Emails To The Hobbit 2019

It’s been a long time since we published some of the letters this blog has been receiving. Actually, no one writes letters anymore and they send the blog emails instead, and so, we have re-titled this column as “Emails To The Hobbit”

 

Email 1

Dear Wise and Short One

Up Yours

I am a staff of a Wizard Malpractice Indemnity Scheme known as Am Pee Ass.

This is what happened: An elderly hobbit came seeking help from our indemnity scheme member, hereto known as “Brown Wizard”, to complain of bloatedness and blood in his poop. The Wizard told the hobbit he needs to do a full check up. The hobbit lay down, let Wizard touch his tummy, then followed instructions to lower his trousers and turn over. A digital rectal examination was done. Subsequently, the hobbit went home, and told his family what happened. Outraged, the family got the elderly hobbit to make a statutory declaration and demanded that the Council of Wizards explain why the Wizard did such an invasive check without consent.

Brown Wizard didn’t know what to say. And likewise neither do I. Do you have any advice? BTW, why are hobbits so anal? (pun intended)

Yours sincerely

Rectus Loquitus

Case Manager, Am Pee Ass

 

Dear Rectus Loquitus

Thank you for being so straight talking. The problem is that you did not adhere to the Modified Monty-Monty test which states clearly that you have to take into consideration what are the relevant factors for this elderly hobbit, and take a hobbit-centric approach. I hope this makes sense to you. Because it doesn’t make any sense to my simplistic mind.

 

Yours confusedly

Hobbitsma

 


 

Email 2

Dear Hairy Feet

It’s A Fine World

I understand that my Case Manager has contacted you already about the elderly hobbit who complained against me because I examined him per rectally without informed consent. Actually I have another problem that I wish to confide with you. I was busy tending to my many injured animal friends when suddenly  a magical raven came to deliver a message. “Hi, I came from Rosie, the hobbit Samwise’s wife. You know he’s always having an eating disorder, eat until so fat. Can I get a letter from you to certify that he has this illness, so that I can get the prescription refilled?” In good faith, I wrote the parchment and passed it to Raven to bring back. Unfortunately, it wasn’t Rosie the wife, but Samwise’s mistress the enchantress Lavender who wanted the parchment to pass to the wife, so that Rosie will divorce Samwise.

Samwise is now suing me for emotional distress and marital discord. Council of Elders have ruled that I was at fault, and must pay 50,000 gold pieces. The fact that Samwise’s family situation is complicated, or that Lavender impersonated as Samwise’s wife to get confidential information were discounted or even ignored. The fact that I was busy looking after many sick animals was also not a mitigating factor. They were of the opinion that I could have easily verified the identify with a few simple questions: Does Samwise snore in bed? What’s his underwear size? When was the last time he shaved his feet? And so on. I have been found solely responsible, because I did not ask verify the Raven to confirm that Raven is truly sent from Rosie  and the Raven is indeed who it claimed to be.

I just found out from my case manager Rectus Loquitus that Am Pee Ass doesn’t cover fines and I have to pay the 50,000 gold pieces out of  my pocket! I am now flat-out broke!

Please help!

Yours tragically,

Brown Wizard

 

Dear Brown Wizard

This is truly unfortunate. What I suggest you do is to stop treating all these poor injured animals and go into private practice where you can charge more. Generally, humans and elves pay more. Please consider starting up your practice in the posh Mount Expensive Hospitals. Either the Old or New one will do. Then the next time you get slapped with a big fine, you can still pay.

Yours Cynically

Hobbitsma

 


Email 3

Dear Ring Bearer

Survival Medicine

I need some reassurance. I am an ICU Associate Consultant in a public hospital. And I am your Survival Medicine’s Number One Fan.

A few days ago, an elderly man was found unconscious at the road side after a hit-and-run incident, in extremis. The ambulance crew brought him in, the emergency team intubated him and admitted him into ICU. The next day, 3 anxious people turned up. They claim they are the wife and children. I don’t believe them. I don’t dare to believe them. Maybe it’s the second wife and HER children who wanted his fortune. I demand to see the marriage certs, birth certs and IC of all three. As well as the man’s IC. They produce all. But, the man in the hospital bed now looks NOTHING like the photo in the IC. I don’t think this is the real family, I have no way to verify. The policeman says they found these anxious people at the site of the incident. Oh- maybe they are the driver and passengers of the car that hit the old man! I refuse to update any of them, and escalate every decision of care to the Ethics Committee. I feel good that I have protected patient’s confidentiality, and avoided paying a hefty fine in case I am guilty of not verifying a person’s identity. Do you think I will survive all this?

Yours sincerely

Dr Veritus Verify

Associate Consultant

Department of Vericationology

Wa Gia Si General Hospital

 

Dear Veritus Verify

You will definitely not just survive, but thrive in this new age. I hope your patient survives too.

Yours shortly

Hobbitsma

Emeritus Consultant Verificationalist

 


Email 4

Dear Katek,

Non-Clerical Referrals

I need your advice in a most delicate matter. I am a cleric specialising in the art of clairvoyance. Many fellow clerics refer patients to me for investigations because I can see things that other clerics cannot see and my work helps my colleagues diagnose better. These patients are referred to my department (i.e. Department of Diagnostic Clairvoyance) and my cleric assistants then take clairvoyance images which are later sent to me to read and interpret and report on. These reports are then sent back to the clerics who sent these patients to me for their follow-up. Recently, arising from a case of missed follow-up for a patient referred by a cleric accidentalist, the Lords of Judgement have decided that for referrals from accidentalists, the reports should not be routed back to the accidentalists. Instead, the clairvoyance clerics can decide the appropriate specialists that should follow up these patients referred to us, for example bone-setting clerics, heart clerics etc.

I am most distressed. I chose this specialty because I am rather allergic to physical contact with patients and I do not want to assume primary cleric-patient responsibility. I just like to read clairvoyance images with no direct patient contact. How do I decide who to refer to when I haven’t even met the patient or talked to him or examined him? Does it mean that for all patients referred by accidentalists I now have to take over as the primary cleric? A good and proper referral involves a lot of judgment and is not just looking at images and then performing a simple clerical (pun intended) task like filling a form

This is not what I signed up for. The Lords of Judgment are not trained in the Art of Healing like us clerics, can they change the way we clerics practise?

Yours sincerely

Robert Cork

Most Senior Clairvoyance Cleric

Mount Expensive Hospital (Old Branch)

 

Dear Cleric Cork,

I am so sorry. I really cannot help you there. As you know in the Realms we live in, whatever the Lords of Judgment say, we must comply, humans, elves, dwarves and hobbits included. We just have to suck it up. Only the House of Power can override what the Lords of Judgement say by issuing edicts. And it is not going to happen until the Fifth Age of Man (i.e. a few thousand years from now)

Yours Powerlessly

Hobbitsma

Weapons Of Mass Ethics Destruction (WMED)

Writing this blog used to be a leisurely affair for this hobbit. When he suffers from constipation, halitosis, ingrown toenail or insomnia, he will write a few words to expurgate the symptoms.

But it’s different now. SMC Judgements are coming so hard and fast it’s hard to keep up with them and their absurdity. This hobbit has mouths to feed and feet to shave and consent to take (that complies with the Modified Montgomery Test).

If you thought the Lim Lian Arn (LLA) case was bad, then this one involving psychiatrist Dr Soo Chuenn Chiang (SSC) takes the cake.

Background

There are some very interesting facets of this case that need to be pointed out:

  1. Dr SSC was deceived by the patient’s brother who pretended he was the patient’s husband.
  2. Apparently, this imposter has not been punished so far for his act of pretending to be someone else.
  3. Dr SSC was fined $50,000 for writing and giving a memo to this imposter free-of-charge (At least, presumably, Dr LLA got paid for his H&L injection). In other words, there was NO pecuniary or any other self-interest for Dr SSC to issue the memo.
  4. The imposter told Dr SSC the patient was apparently suicidal and needed to be admitted to IMH against her will under the Mental Health (Care and Treatment) Act. IMH is the only hospital facility that can do this, not NUH, where Dr SSC worked.
  5. By the Disciplinary Tribunal’s own admission, there was no clear evidence that the memo from Dr SSC led to the patient being issued a Personal Protection Order (PPO) even though admittedly the patient suffered emotional distress from the memo.
  6. The SMC lawyers asked for a $20,000 fine and made it amply clear they were not asking for suspension. Dr SSC’s lawyers asked for a fine of $5,000.
  7. The DT gave the fine of $50,000 after taking guidance from the Wong Meng Hang case even though BOTH the SMC lawyers and Dr SSC’s lawyers said the sentencing matrix as given in the Wong Meng Hang case did NOT apply to the current case. The Wong Meng Hang case refers to the case where the doctor was struck-off after he caused the death of his patient while performing liposuction.
  8. When it came to sentencing, the DT’s starting point was the MAXIMUM fine of $100,000, and after considering the mitigating factors, they came up with $50,000.
  9. Dr SSC’s main sin was that of failure to verify the imposter’s identity and authorisation. It is important to reproduce here the entire paragraph (para. 30) from the Grounds of Decision (GD):

We also note that the preventive actions (i.e. verification of identity and authorization) to be taken were not onerous. As submitted by Counsel for the SMC, the steps to be taken by Dr Soo were simple. We could only conclude that the failure of Dr Soo to take such steps reflected both a lack of concern for or appreciation of the required standards and an indifference to the patient’s medical confidentiality.

At this point, I need to catch my breath because the absurdity herein is nothing but breathtaking. In case you may have missed the point – This DT fined Dr SSC $50,000, a figure far exceeding what both sets of lawyers asked for, taking guidance from a case precedent/case law that both sets of lawyers had stated did not apply in this case. Breathtaking, isn’t it?

Verification

Let us first talk about verification. Is it really “not onerous”? Verification really involves at least two steps, each of which is onerous:

  1. Verification of Identity and Relationship
  2. Verification of Authorisation (whether general or specific authorisation)

To verify this person’s identity, the person will have to at least produce his NRIC and marriage certificate (as husband). Many case notes do not have next-of-kin information like name, NRIC or handphone number. A verification on the phone is not good enough in this case, bearing in mind that the imposter is the patient’s brother and may have much of the personal information of the patient and her husband anyway. To be fool-proof, you need to conduct a physical “in-person” verification.

Even after the doctor has verified the identity and relationship, there is still the need to verify whether he is authorised by the patient to know the relevant information in question. An example is the spouse asking for an update of the patient. This sounds reasonable but the spouse may be undergoing separation or divorce proceedings with the patient. You will almost always have to counter-check with the patient. Verification of authorisation is practically impossible in this particular case because the patient is not physically present to express authorisation and even if physically present, is she of sound mind to give the authorisation? A memo of authorisation signed by the patient is also not good enough because you never know if the memo is fake or the patient is of sound mind to issue such a memo.

So how could the DT arrive at the conclusion that “the steps to be taken by Dr Soo were simple”? Can we see the DT’s “action plan” to do so, in order that we simple people, the humble folks who practise medicine on the ground, can understand why it’s “simple”?

This hobbit is a simpleton. And even I cannot see why it’s “simple”.

As a doctor, every day, we have to balance between the need to do no harm, to do good and the need to respect a patient’s confidentiality. When analysing the ethical issues underlying a medical legal case, you cannot analyse one factor, such as confidentiality, in isolation while ignoring the others. Dr SSC is obviously trying to prevent harm from happening to the patient because she was apparently suicidal. Dr SSC was trying to do some good. In the course of it, he fell to a scam by an imposter. All this was given short shrift by the DT and he was given a $50,000 fine.

Sentencing and Penalty

When this happened, Dr SSC was an Associate Consultant. His take-home pay (including call allowance etc) then was probably about $10,000 a month. In other words, he took home practically nothing for five months and lived off his savings, all because he wanted to protect a psychiatric patient from harming herself by writing a memo to her ‘husband’ who turned out to be an imposter.

It is also interesting how the DT appears to come up with the figure of $50,000. Paras 16, 31 and 32 of the GD implies that they likened the old maximum fine of $10,000 to the new maximum fine of $100,000 (a factor of 10). Under the old fine regime, Dr SSC’s case would have warranted a fine closer to $5,000. Hence under the new fine regime, Dr SSC should be fined $50,000 (a factor of 10 also).

Firstly, if you read the parliamentary proceedings when the Medical Registration Act was amended and the maximum fine was raised from $10,000 to $100,000, it was raised to fill a gap:  The gap between $10,000 and the minimum suspension of three months. This was the intent of Parliament and MOH when the law was changed. This is clearly stated in Parliamentary proceedings of 11 Jan 2010. It is not a simple “everything x 10”.

But just to make things clear, this Hobbit does not think that Dr SSC is without fault. Medical confidentiality was breached, even though inadvertently and, probably out of some naivety to do good (Yes, trying to do good can be viewed as being naïve in today’s medico-legal climate). He needs to be advised, warned, or even censured. But a $50,000 fine?

General Deterrence

Again, we need to go back to the issue of deterrence. In particular, general deterrence, – so that other doctors are generally deterred from repeating Dr SSC’s mistake. There is also the need to uphold the public’s trust and respect for the medical profession. These are the usual reasons given when giving a deterring sentence, which the DT did give, and the SMC lawyers did ask for.

If someone actually thinks Singaporeans’ respect and trust for doctors is eroded because Dr SSC fell prey to an imposter and thereby breached medical confidentiality, that someone is insulting the intelligence of Singaporeans. Singaporeans are far more insightful and cleverer than that.

As for our doctors, you can bet your last dollar we are deterred big-time. Already, there are new circulars and work instructions issued in many hospitals and clinics stating that they no longer entertain telephone enquiries of patient’s condition by relatives. Also, all requests for memos by patients and relatives have to routed to the Medical Records Office (MRO) of hospitals who will process such enquiries (including verification of identity, relationship and authorisation, of course). These new work processes will take at least a few days and entail fees to be paid. Therefore, much more money and time are involved.

Weaponization

Let us now take a deeper dive into one of the underlying issues of the day behind both the LLA and SSC cases. Reading the GDs of these two cases, you will see that the DTs went to great lengths to take guidance from precedents, case law and the comments of Judges in other medico-legal cases before arriving at the judgement(s) and sentence(s) of the case at hand.

Case law and legal precedents are powerful features and tools of the Common Law System which Singapore adopts. But as this Hobbit sees it, there is a small problem that needs to be understood and addressed in the context of medico-legal cases. When senior judges (such as High Court Judges or Court of Appeal Judges) set precedents and case law, they are almost always interpreted and used by people almost as wise and acquainted with the Law as themselves – lawyers and other judges. They can see the nuances of each case law and to apply them precisely and with finesse. Precedents and case law are great tools for master craftsman of the law.

But with medico-legal cases, these tools end up at Complaints Committees (CC) and DTs, and they are manned mainly by doctors. These CCs and DTs see ethical issues as mainly simple black and white, not in many contextual shades and nuances. They are also not helped very much by lawyers who (understandably) want to win and win big in an adversarial legal system. Hence, case law, precedents and even the SMC Ethical Code and Ethical Guidelines (ECEG) get “weaponized” to secure a conviction. Put in harsh sentencing (without considering fully why you need harsh sentencing and the effects such harsh sentencing have on society at large) in the name of general deterrence and we get Weapons of Mass Ethics Destruction (WMED).

The fact is, doctors are not as clever as lawyers and judges. Lawyers and judges are of a higher plane than us lowly MBBSes. That is why lawyers are never named in obituaries. When a person dies, he may thank his pet dog, domestic helper, and doctors and nurses but NEVER lawyers.

Yup, we are in the same level as pets, and domestic helpers. Pretty down-to-earth folks. Like domestic workers, we have frequent interactions with bodily fluids and excreta and even occasional dalliances with pus. How can such people really and fully understand and use delicate tools like case law and precedents? What we can handle with our limited intellect is perhaps clear and detailed legislative laws and regulations to govern our medical practice. Brilliant legal stuff like the Modified Montgomery Test is probably only understood fully by MBBS (Honours) doctors and there are only a handful of such mutants every 10 years.

The last question that needs to be asked is perhaps the role of senior legal officers in the DTs. This has been so since 2010 when the MRA was revised, and after several controversial rulings by SMC Disciplinary Committees (precursors to DTs) in the preceding few years. The “lawyerization” of DT is supposed to address shortcomings in previous DCs and put DTs on a sounder legal footing; they are supposed to inject legal expertise, sound judicial thinking into the DTs, so as to prevent doctors on DTs from doing legally imprudent things, so to speak. But nine years down the road, as anyone can see, the problems and controversies with DT rulings have not diminished significantly at all. Someone should look into this.

Consentologists and Verificationologists

The joke on the ground is that with the LLA and this SSC case, you will need an army of “Consentologists” and “Verificationologists” to keep the system going. Maybe the SMC and SAB can introduce these as new specialties. This hobbit will sign up for the training. And so much for the Minister for Health saying the current rate of growth of the MOH Budget is “unsustainable” just earlier this week. It will become even more unsustainable with Consentology and Verificationology taking their vice-like grip on the day-to-day operations of healthcare services.

 

 

Part 2: About That $100,000 Fine For An Injection

The practice of medicine must evolve with the times, and is necessarily ever-changing. How we change the practice of medicine is heavily dependent on new evidence gleaned from scientific discoveries as well as subjective factors such as patient expectations and even doctor’s expectations. These are not necessarily bad things

But change in medicine is never ever a good thing when the change is driven mainly by a change in medico-legal climate. Especially when these changes are fueled by fear and anger, whether they may be on the patients’ part or from the doctors’ perspective.

As we all know, fear and anger are two of the most powerfully evocative emotions in the gamut of feelings that the human race can muster. Fear and anger are two emotions that are often used by populist and irresponsible politicians to get more votes in election campaigning. Fear and anger, together, has a life of its own and spreads like wildfire.

But this is exactly what doctors are experiencing now in Singapore in the wake of the $100,000 fine by SMC on Dr Lim Lian Arn. Fear which has led to anger which in turn is feeding the original fear.

On 30 Jan 19, SMC issued a public statement of clarification of case, stating that “Doctors are not expected to inform patients of all possible complications”. This is helpful. But it is not enough. Let this Hobbit elaborate. We need to directly address:

  • Fear and anger over what is expected of the doctor to obtain an effective informed consent
  • Fear and anger over the magnitude of the fine ($100,000)

Fear and anger over what is expected of the doctor to obtain an effective informed consent

In short, the laundry list described in the charge and the Grounds for Decision was perceived to be setting a new standard of care. Thankfully, the 30 January 19 Statement by SMC has addressed this by saying a doctor doesn’t have to inform his patients of all possible complications. But it does say that “however, the DT indicated that it would be good clinical practice to document in the case notes that a patient had been informed and was agreeable to the injection, a proposition which no doctor would reasonably disagree with……; the Decision merely reminds doctors that they should document the fact that they have explained the treatment or procedure and the patient’s consent”.

Questions from this (also reasonable) Hobbit for the genius who drafted this document:

  • Must I document every “treatment or procedure” that I had explained to the patient and that he had consented? Treatment includes simple stuff like prescribing drugs, CRIB (complete rest in bed) and applying dressings. Every time you remove a urinary catheter, chest tube or drain, it is a procedure (let alone inserting one).
  • How does a junior doctor in charge of say, half the ward (about 15 to 20 patients) do this and have time for lunch and go to the toilet? Remember, every drug is a treatment, and practically everything you do in a ward is a procedure other than bathing and feeding the patient and bringing the patient to the toilet.
  • Does the person who drafted this understand what resources it entails just to achieve his one landmark sentence of “the Decision merely reminds doctors that they should document the fact that they have explained the treatment or procedure and the patient’s consent”?

Essentially, there are three “Categories” of activities a doctor prescribes or performs in vast numbers every working day:

  1. Treatment and procedures that require written consent from the patient
  2. Treatment and procedures that require documentation of verbal medical advice and patient consent in the casenotes
  3. Treatment and procedures that do not require written consent or documentation

In the past, the vast majority of treatment and procedure belonged to the last Category. We don’t document that we had explained the possible complications of most simple procedures or drugs and that the patient had consented. Now it appears that the default option is Category 2 instead – we have to document almost everything.

Can someone in SMC have a discussion with the Ministry of Finance on how Singapore will fund the resources needed for this new level of documentation?

For the avoidance of doubt, this hobbit thinks a H&L injection should fall under Category 2. But most daily procedures and treatments actually should remain in Category 3 and not be pushed up to Category 2.

One should not make sweeping statements like “a proposition which no doctor would reasonably disagree with” unless one really understood the practice of medicine as it happens on the ground given the resources this country allocates to healthcare. This new standard of documentation may already have happened in Beverly Hills, California, but it doesn’t happen here often at all, and certainly not in the public healthcare system.

Experts and “Expertism”

Much has been said about the expert opinion in this case. The Complaints Committee (CC) and DT accepted the expert opinion of what is the standard of care to be applied. It has been said often that the CC and DT did not act without expert advice and opinion.

This hobbit believes:

  • The answers you get depends on the questions you ask
  • People behave differently when they are labelled as “experts”. They have to display behaviour befitting that of experts (I call this “expertism”).
  • The SMC DT should concern itself with what constitutes basic or minimal behaviour that can be considered as NOT being guilty of professional misconduct, and not apply standards of good or best practice in disciplinary proceedings.
  • The SMC lawyer should likewise concern itself with establishing that the doctor failed to meet minimal standards consistent with professional misconduct and NOT good or best practice

The laundry list of complications that appeared in the charge and the Grounds of Decision was that of good or best practice, but not minimal ethical standards. Were the experts asked to give minimal standards or good or best practice? Even if they were not so asked, did the experts feel inadvertently compelled to give good practice standards because they were asked as “experts” – i.e. they had to display “expertism” in their answers?

Perhaps, when next time an expert is consulted, it should be specifically stated he is being asked to give minimal standards, below which, the doctor should be considered to be guilty of professional misconduct.

We should take a leaf from licensing of healthcare institutions. MOH licenses healthcare institutions such as hospitals so that they can provide health services. These are minimal standards. If these hospitals want to do better, they can go for accreditation such as the JCI accreditation scheme. But the two are different and we should not conflate them. Licensing ensures a minimal standard, accreditation puts in place good or best practices. Similarly, doctors are licensed because they are fit to practice and they are fined or they have their practice license suspended or taken away because they fail to meet these minimal standards of ethics and competence, not for higher or aspirational standards.

Paradoxically, “expertism” is easier to put in place than setting of minimal standards. One doctor describes this as “Google Medicine”. An expert can search for the list of complications on the Internet and furnish it to SMC in a matter of minutes. It is actually more difficult to decide what are the minimal standards one must achieve to obtain and maintain licensing. A good comparison is that of a Head of Department assessing residents: It is easy to decide who are the good residents who regularly impress you, but it is difficult to decide whether you would want to sign up and pass a marginally or poorly performing resident or not.

Fear and anger over the magnitude of the fine of $100,000

In this hobbit’s first column on this matter, he failed to mention a very important fact – statutory fines, such as the $100,000 fine by SMC, are not covered by medical indemnity schemes. Whether the fine is $1000 or $100,000, the doctor has to pay the full amount to SMC. A $100,000 fine is painful for even the richest doctor in Singapore, but it is financially crippling to many junior doctors such as residents and junior specialists.

Don’t get me wrong, fines should be punitive in nature. That’s why they are fines and the threat of this fine drives a person to behave correctly. But when the amount is so large such that it becomes an existential threat to the professional and the risk-reward ratio doesn’t makes sense to the professional, then a different type of behavior ensues.

In a market economy like ours, what options does any rational person do when he is faced with a financial penalty that is so large it becomes an existential threat? Let’s take the H&L injection as an example –

  1. He tries to insure it away. As aforesaid, this is impossible, and he has to pay the fine out of his pocket
  2. He tries to price-in the risk. The correct risk premium is probably out of reach of at least 70% to 80% of Singaporeans. For doctors in the public sector, they have no pricing power, because prices are set by the hospital or polyclinic administrators and doctors are paid a fixed salary and not paid for office procedures. The only people who can price in the risk and who have patients who are willing to pay the risk premium risk are the private specialists, who probably only serve the top 20 to 30% of Singaporeans. H&L injections will continue to be offered in this limited segment.
  3. He avoids the risk by not offering this service altogether. This is probably what has happened and most Singaporeans will find it more difficult to get a H&L injection nowadays than compared to a few weeks ago.

In case people in power do not understand (because they are probably the most well paid people in this country, let this hobbit state clearly – a $100,000 fine is an existential threat to a medical officer or resident, a GP or even an Associate Consultant.

The vast majority of people living on this island will now be deprived of a simple procedure  that is effective, very safe and was cheap.

Frankly, if I were still a young polyclinic Medical Officer with student loans to pay, I would stop giving H&L injections because a $100,000 fine would bankrupt me. It doesn’t matter if the $100,000 fine was for lack of informed consent or lack of documentation of getting an informed consent. The fact is, I cannot take the risk. Ask any professional risk management consultant and he will tell you that assessing any risk is not just about assessing the probability of incurring punishment but also related to the severity of the consequence (in this case, the punishment of $100,000).

The same goes for other junior doctors who perform all these high-risk procedures in the wards on a day-in, day-out basis. Fortunately, our junior doctors continue to display high degree of professionalism and dedication to their patients.

But the bottom line is – when the penalty is cripplingly great and the reward remains small, (because you cannot price-in the risk), most doctors (and most human beings actually) want CERTAINTY of avoiding the penalty. This is basic and rational behaviour. And the only certainty is not to offer the service. Any human being with average intelligence will come to this conclusion.

The fact is the Lim Lian Arn case has set a new standard for penalties. This issue has not be addressed at all by the 30 January 19 Statement by SMC.

It is interesting to note what Finance Minister Heng Swee Keat wrote today in the major newspapers “(a Zaobao reader) is right to caution against creating a public service culture where “Doing more means making more mistakes, doing less means making fewer mistakes; and if we do nothing we will make no mistake”. That would be the most serious mistake we could make”.

This is probably what has already happened in the ‘medical’ service culture now with regard to H&L injections given what has happened in the Lim Lian Arn Case: Do nothing, and so make no mistake.

Externality Effect

That brings us to  the issue of externality effect or “externalities” in short. This is a commonly-used term among policy wonks and economists. Wikipedia describes externality the cost or benefit that affects a party who did not choose to incur that cost or benefit.

We are where we are today because of the Externality Effect. If everything that happened in the Lim Lian Arn case only applied to Dr Lim, no one would be flustered. But in the Common Law system that we inherited from the British, precedents and case law matter a lot to all of us. While SMC is not exactly a court, but their Grounds of Decision serve as precedents and “case law of sorts” for future SMC cases.

Therefore these aspects of the LLA case have externalities (whether cost or benefit) that we, the medical profession at large, did NOT choose to incur:

  • How the charge (the laundry list of complications) was drafted
  • The suspension of five months that the SMC lawyers asked for
  • The fine of $100,000 which Dr Lim offered and which was accepted and the reasons for not imposing a suspension
  • The reasoning for the conviction and sentencing as given in the Grounds of Decision, including the effectiveness of any mitigation factors, if any
  • The need to document almost everything as given in the SMC Statement dated 30 Jan 19.

To this hobbit, the ONLY benefit or positive externality effect the profession derived from the Lim Lian Arn case is that not all cases of (lack of) informed consent will end up with a suspension and a fine may suffice (albeit a big fine).

The externalities of this case extend not just to the medical profession, but to ALL healthcare professionals that carry out procedures and prescribing and dispensing of treatment, including dental surgeons, pharmacists, physiotherapists, TCM practitioners etc. The magnitude of fines may differ, but the principles and effort of getting an effective informed consent should not vary much. For example, the TCM practitioner-patient cannot be less deserving of a less patient-centric advice process than a patient seeing a Western Medicine doctor, right?

The Limitations of SMC and the Government

A lot of criticism has been levelled at the SMC members, the SMC lawyers, the Complaints Committee, and the Disciplinary Tribunal recently. The four parties are often conflated in discussions but actually they function quite independently.

The first question to ask is, what gives SMC the right to even exist, and to investigate and punish doctors? The answer is the Medical Registration Act (MRA) which is passed by Parliament. Parliament passes laws like the MRA. Then the MRA is administered by MOH and SMC. The SMC’s power to publish the Ethical Code and Ethical Guidelines (ECEG), to punish and extent of punishment is provided for in the MRA. So in a sense, the SMC’s DT also has the power to interpret the SMC Ethical Code and Ethical Guidelines as well as the MRA itself. But like all laws in Singapore, the FINAL power to interpret any law or the final arbiter of any law does not rest with a ministry or a statutory board but the Courts. That is why the patient, doctor or SMC lawyer can all appeal to the Court of Three Judges (Sometimes five) if they are unsatisfied with the DT’s judgement. The Court of Three Judges always consist of High Court or Court of Appeal Judges, and sometime may even include the Chief Justice himself.

So in a sense, the SMC DTs and  the SMC lawyers must take guidance from the learned Judges when they pass judgment on SMC appeal cases brought before them. In recent years, a few precedents or case laws which may or may not have a bearing on the Lim Lian Arn include:

  • The Courts have on more than one occasion asked that SMC metes out more severe sentences to doctors
  • In the SMC vs Ang Peng Tiam case, a lifetime of good clinical practice record is NOT an effective mitigation plea. In fact, being senior may work against you. The only effective mitigation plea in this case was that there was a delay by SMC in processing this case.
  • In the Hii Chi Kok vs London Lucien Ooi case (Which is NOT an SMC Case, but a case brought by the patient directly against the surgeon through our Courts), the Modified Montgomery (MM) Test was first confected and applied. The MM Test will apply to all medico-legal cases (including SMC cases) in this country to test how medical advice is offered.

Of course, what these cases demonstrate and instruct are principles. Whether these principles are correctly applied (as the Judges would have wanted it) on the ground is a big question.

For example, is the five-month suspension or $100,000 fine appropriate in this case, given that “ there is nothing to suggest that the complications experienced by the Complainant were in any way permanent or debilitating” (Grounds of Decision, Para. 57)?

In the Grounds of Decision, it was recorded that the SMC lawyer asked the DT members to “not to give any weight to the mitigating factors such as the potential hardship to the Respondent (i.e. Dr Lim) arising from the conviction, the testimonials, character references and acts of community service and the Respondent’s long, distinguished track record”. (Para 33 of the Ground of Decision). In fact, it was recorded in para 27 of the same Grounds that had Dr Lim not submitted an early plea of guilt, the SMC lawyer would have asked for six to 8 months of suspension.

This hobbit wonders if this severe stance by the SMC lawyer was in some way influenced by what had happened in the Ang Peng Tiam case that was brought before the Court of Three Judges?

Also, in the indirect application of the MM Test through the drafting of the charge, should a laundry list of complications of a H&L test be listed out?

On 7 Feb, The President of the Pharmaceutical Society of Singapore, Ms Irene Quay wrote in a letter to The Straits Times, “it is important for the Ministry of Health (MOH) to provide clear guidance on the extent of informed consent for low-risk medications or medical procedures if the modified Montgomery Test is to be applied”.

To be fair to the government, MOH did not ask for the MM test to be confected or applied. That was the decision of the Judges. In fact, the Attorney General (AG) Chambers specifically asked for the Bolam Test and Bolitho Addendum to be retained in their submission to the Court of Appeal in the Hii vs Ooi case. But the Court of Appeal decided that the MM test will replace Bolam and Bolitho in Singapore on matters pertaining to medical advice.

I guess MOH and SMC are as much trying to understand what stiffer penalties mean and how should the MM test be applied in day-to-day medical advice situations when they administer the MRA. They can issue guidance, but it will be very challenging to have “clear” guidance when they didn’t come up with the MM test in the first place.

Who And What Are We Trying to Deter?

The main purpose of the SMC is to protect the public from bad doctors and in doing so, also serve justice. At the individual level, patients who have been harmed by doctors guilty of professional misconduct deserves justice from the SMC.  Justice has to be done, and has to be seen to be done.

Some have argued that stiffer penalties are necessary today to deter more doctors from practising medicine such that public confidence in the medical profession is not eroded. This is called deterrent sentencing. It is meant to deter others from committing the same act of professional misconduct and the objective of this is termed “general deterrence”. General deterrent sentencing is an intended potential externality. This is in contrast to “specific deterrence”, in which sentencing is targetted at preventing the specific doctor from erring again.

If you look at the latest SMC Annual Report, 12 doctors were given letters of warning and another 23 were given letters of advice. 12 cases were brought before Disciplinary Tribunals and concluded in 2017, of which two are pending appeal before the Court of Three Judges and two cases were concluded without any punishment for the doctor. Eight were actually censured and/or punished in some way. These numbers have been rather stable in the last 10 years. Even if we assume the worst-case scenario in which the two cases pending judgment before the Court of Three Judges will actually be punished in the end, the number for DT cases in which doctors will be found guilty of professional misconduct is 10.

Assuming that general deterrent sentencing is effective, how many doctors do we think we may have deterred from behaving in a bad way? Let’s give this a generous multiple of 10. 10 times 10 is 100. In other words, we have deterred 100 doctors from behaving in a bad way such that he is guilty of professional misconduct. By the same factor of 10, another 350 doctors or so would have been not served with letters of warning of advice because of the deterrent effect of stiff penalties.

The rest would not have committed the offence anyway, because this hobbit would like to believe most doctors in this country are still ethical and professional ones.

But in the fallout from the Lim Lian Arn case, thousands of doctors are now deterred from giving a H&L injection, a safe, simple and cheap procedure that would have benefited many tens of thousands of patients: Just because one patient wasn’t properly counselled and hence did not give an informed consent and thereafter she suffered complications that were not “permanent or debilitating”?

So we need to ask, who and what are we deterring? Do the cost-benefit numbers add up and make sense for the greater good of society?

Conclusion

The Chief Justice said in his speech at the opening of the 2016 Legal Year: “Medical care is of direct concern to all Singaporeans and we must act to avoid a situation where the practice of medicine comes to be adversely affected by the medical practitioner’s consciousness of the risks of malpractice liability.”

This “consciousness” has already come to pass in Singapore. The “situation” is already unavoidable.

This hobbit does not see any conclusive way out of the current problematic situation unless new laws are drafted by MOH and passed by Parliament to restore a more sustainable practice environment, not just for doctors, but for all healthcare professionals, and ultimately for the patients as well.