June Speculations

SMC is back in the news again. Like some wild boar that keeps charging back in Kranji and Punggol….the difference is that some will say the boar has comparatively more grace and finesse.

It gives this Hobbit no pleasure to write about this. Some of them are what you call legacy issues. Others are current and the ball is in the court of those sitting there now.

The first case is that involving an orthopaedic surgeon in private practice who was suspended by the Court of Three Judges for six months because he gave the poor foreign worker he operated on for a wrist fracture only TWO days of MC.

Obviously, this is wrong. I was an orthopaedic MO once and I wrote many MCs for patients discharged after such a fracture was fixed. If I gave any such patient only two days of MC post-op, my consultant would have burnt me at the stake during the weekly department trauma round.

But interestingly, the SMC Disciplinary Tribunal (DT) acquitted this orthopaedic surgeon. The SMC lawyers appealed against the Tribunal and asked for the doctor to be suspended four months, citing aggravating factors.

The Court of Three Judges that heard the appeal not only overturned the ruling of the DT, but gave the SMC lawyers more than what they asked for – a suspension of six months!

I am not a fan of the SMC lawyers usually. But I guess they were right to appeal in this case and press for punishment.

The detailed grounds for decision of the Court of Three Judges for this case is not out yet publicly. But SMC said in its press release that “The Court noted that Dr Wong had considered “irrelevant factors” in issuing the medical certificate and “disregarded the patient’s wellbeing”.

What is significant is that this case is heard under the latest revised Medical Registration Act (MRA) in which every DT must have one member who is a senior legally trained person or legal service officer. I am told there was a very senior or retired district judge on this DT. So what happened? What went wrong even with the mandatory legally trained person on the DT?

Remember when many doctors were unhappy and protested when this provision was made? The then Director of Medical Services defended this provision robustly as if this was the panacea to several SMC’s problematic rulings.

Obviously, with this latest case, it can be seen that having a senior legal officer is no panacea. There is a lot of egg on some folks’ faces.

This Hobbit is no lawyer, but here is some speculation. ALL SMC cases are considered quasi-criminal in nature. This sounds terrible but actually it’s a blessing for doctors. Because it is quasi-criminal, the standard or burden of proof is “beyond reasonable doubt”, as opposed to civil suits where it is just the “balance of probabilities” (>50%).

If the judge finds that you are wrong based on the probability of just more than 50%, you lose a civil suit; i.e. balance of probabilities. But it is much, much harder to prove you are guilty “beyond reasonable doubt”. One of the key factors is intent. That’s why it’s not a bad thing for SMC cases to be considered quasi-criminal.

But the key word here is “quasi-”. SMC cases share a lot of similarity with criminal cases, but the two are not entirely the same. Hence “quasi”. One key dissimilarity is that you do not have to prove intent if the damage done to the patient is so gross and the suffering so great and obvious.

For example, a patient is known to be allergic to penicillin and the junior ward doctor gives it intravenously to the patient due to oversight, fatigue, or whatever. The patient dies. You do not have to prove intent here. The junior doctor is still guilty of professional conduct and would probably have been suspended.

To give another example. If another orthopaedic surgeon accidentally amputated the wrong leg, you do not have to prove intent. The harm is so gross and the suffering by the patient so great that the surgeon should be suspended.

The first part of Paragraph 16 of SMC’s press release on 16 May 2016 is reproduced here:

“Nevertheless, the DT acquitted Dr Wong on the basis that SMC had not proven beyond a reasonable doubt that Dr Wong’s departure from the applicable standard of conduct was intentional and deliberate.”

This Hobbit speculates that the deviation from standards and the suffering of the patient is so great that there is no need to prove intent here beyond reasonable doubt. And that is probably why it is speculated that the Court of Three Judges overturned the DT’s decision of acquittal and even gave a sentence stiffer than what the prosecution had asked for. This is just pure speculation on my part. Let’s see what the Court of Three Judges say when their Grounds for Decision are released in due course.

Enough legal talk. Let’s move back to ethics. It is now out in the open. No, I am not talking about Taylor Swift smooching with Tom Hiddleston (aka Loki). Seriously, if you want to choose a baddie, try Michael Fassbender (aka Magneto). Ian McKellen (aka the old Magneto) is not interested in Taylor Swift, unfortunately.

We are talking about the “admin fee” charged by Third Party Administrators (TPAs) or Managed Care (MC) companies. This came to public light during a symposium organised by The Care Cooperative which was reported by The Today Newspaper on 10 June 2016. Apparently, from the article, the percentage fee can go up to 25%!

It has also been made known that the Singapore Medical Association (SMA) has written to the SMC asking for “definitive advice”.

This Hobbit is not holding his short breadth for this one.

The usual advice we have been getting from SMC is something that goes like “SMC expects all registered practitioners to adhere to the ethical standards as prescribed by their SMC Ethical Code and Ethical Guidelines and to put their patient’s interests first when they discharge their professional responsibilities”.

Of course the actual words may differ somewhat, but the gist is something like the above.

In essence, in Hokkien, it is like “Gong Liao Boh Gong”. (Loosely translated into Singlish – say already like never say).

What doctors at the frontlines dealing with these TPA and MC companies really need is “definitive advice”. Motherhood statements like the above do not constitute “definitive advice”.

Definitive advice in this context comes in the form of “yes” or “no” answers.

Can I give the TPA and MC companies an admin fee based on a percentage of what I charge their patients? There are only two possible answers to this question that can be considered as “definitive advice” – “yes” or “no”.

If the answer is “yes” – then the profession has been definitively advised – which is a useful thing.

If the answer is “no”, can I give an admin fee at all, not based on percentage? Again, the possible answers which constitute “definitive advice” can only be “yes” or “no”.

In fact, not only are doctors hoping for definitive advice, this hobbit thinks the TPAs and MC companies are also wishing for the same thing.

So why isn’t the definitive advice forthcoming?

The problem I suspect is that there are some folks who are tying themselves in legalistic knots that have nothing to do with ethics.

This Hobbit again speculates that the (stupid) logic may go something like this:-

  • The MRA determines that SMC should exist and defines the terms of its existence
  • The terms of existence are such that SMC can only deal with doctors (and their professional practices) and nobody else.
  • Hence, SMC has no say over how TPA and MC companies operate.
  • And if SMC strays outside of regulating doctor’s professional practice by directly (or even indirectly) commenting on TPA and MC matters, SMC may be considered to be out of line and may even get sued or get criticised by the Courts in some test case.

The speculated answers to this speculated stupidity are:

  • In Singapore’s context, no TPA and MC companies will EVER dare to sue SMC, a statutory body. The chance of this happening is even less than Leicester winning the next EPL season. (OK, I submit I may have to eat my hat on this next year)
  • The Courts also need to know what SMC thinks about this.
  • The patients, i.e. the people of Singapore need to know what is SMC’s position on this.
  • SMC may not be empowered to regulate TPA and MC companies, but ALL doctors are regulated by SMC and these doctors DEFINITELY need to know what SMC thinks about this, whether they can pay a commission or admin fee based on a percentage of a doctor’s professional fees. Put it this way, SMC does not allow doctors to have sexual relations with their patients – this does not mean SMC is regulating the patient’s sexual behavior or love life.

Life is really very simple. If you are put into or elected to a position of power and responsibility – then stick your neck out on important issues that pertain to that position. If you are not prepared to stick your neck out and want to hide behind motherhood statements or some legalistic mumbo-jumbo, and all you want is to wear a nice, long gown during ceremonies and bask in the pomp and pageantry, then please do everyone a favour, step down.

And just to be intellectually honest and clear, definitive advice can come in the form of a “yes” answer – it is OK to give the commission or “admin fee”. Then everyone can also breathe easier rather than live with all this uncertainty. Of course, this Hobbit prefers the “no” answer but “yes” is still better than motherhood statements. At least someone is sticking his neck out….

Which brings us to the upcoming SMC elections. People who want to consider running for SMC elections, please be prepared to stick your neck out and give definitive advice when the crunch comes.

Again, this is pure speculation. This hobbit is still hoping definitive advice is coming our way. But it will also not be completely unexpected that we won’t be getting any.

But anything can happen and we should retain some optimism. After all, if Tim Hiddleston (aka Loki) is rumoured to be the new James Bond (aka 007) and is dating Taylor Swift, anything can happen.

Anyway, enough speculation for now. Let us doctors now return to the realities of ethical ambiguities, professional frustration and economic imperatives…..

 

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