Survival Medicine 2: The Modified Montgomery Test

Autonomy as the First Core Ethical Principle of Prime Importance

This column will be a long and serious one. Those regular readers looking for the usual light-hearted banter and vacuous mirth and merriment that is the norm for this hobbit’s writings are well advised to come back after September.

Since the last column “The Petition”, many readers have given feedback that they liked the idea of “Survival Medicine”. This hobbit would like to continue discussing this.

In the latest and 23rd Sir Arthur Gordon Arthur Ransome Oration to the Academy of Medicine, The Honourable Chief Justice Sundaresh Menon said,

“Most theories of medical ethics recognise 4 core principles, which are reflected in the 2016 edition of the SMC’s Ethical Code and Ethical Guidelines and are described in the SMC’s 2016 Handbook on Medical Ethics as “the foundation of medical ethics.

The first is patient autonomy. This means respecting the right of the patient to choose, even (with some exceptions) when the choice seems, or is, unwise. As a corollary, this also requires a physician to supply the patient with the knowledge needed for that choice to be meaningfully exercised. The second and third principles are beneficence and non-maleficence. These require a physician to seek to maximise the good of his patients and to avoid or minimise harm. The fourth principle is justice”.

This hobbit actually looked up the SMC’s 2016 Handbook on Medical Ethics. Under the section of Pages 9 and 10 of the said section “Foundation”, the four values are listed in this order: Beneficence, Non-Maleficence, Respect for Autonomy and Justice. I think they weren’t really listed in any order of importance, but patient autonomy wasn’t listed first.

In the 2016 Ethical Code, (from pages 12 to 14), these headings are listed in this sequence: “Ensure beneficence and non-maleficence”, “Respect autonomy” and “Uphold justice”.

This hobbit, with his very limited intellect, is in no position to disagree with the Chief Justice. If autonomy is proclaimed to be the first core principle of medical ethics, then it must be. But this hobbit has a confession to make. He did not apply to medical school or want to practice medicine with “patient autonomy” as the first and foremost ethical consideration on his mind. And he will bet that most folks did not have patient autonomy on their mind when they applied for medical school too. And he will further bet that most medical school admission interviewers were NOT looking out for candidates who were primarily motivated by ensuring patient autonomy when selecting 19 year-olds for medical school. And in case anyone is wondering, this hobbit is ordinarily not a betting hobbit.

This hobbit reckons that most 19 year-olds aspired to become doctors and applied to medical school “to do good” (beneficence). With the benefit of a medical education and clinical practice, we also learn the axiom of “first, do no harm”. There is a Latin phrase for this: –  “Primum Non Nocere”. Doctors usually take pithy Latin phrases quite seriously. It is the understanding that the knowledge and armamentarium available to a doctor can also have the downside of doing harm: every drug has side-effects; every surgery has risks. So, while most doctors (or aspiring doctors) start off with beneficence as the chief motivating force, non-maleficence becomes a doctor’s guiding beacon as well, to guard against excesses and imprudent exuberance. There is always a healthy tension between these two ethical forces in most doctors: Beneficence and non-maleficence.

A few doctors also start off with social justice as their main motivating force, and sometimes you see these members of the professions setting off in public health, overseas mission work, NGO work etc.

Of course, there are unethical or materialistic doctors who see each patient encounter first and foremost as an avenue to personal financial gain. But let us leave this group out and just concentrate on ethical doctors.

Let us take a breather here and look at the SMC’s Physician’s Pledge:

“I solemnly pledge to: dedicate my life to the service of humanity;

give due respect and gratitude to my teachers;

practise my profession with conscience and dignity;

make the health of my patient my first consideration;

respect the secrets which are confided in me;

uphold the honour and noble traditions of the medical profession;

respect my colleagues as my professional brothers and sisters;

not allow the consideration of race, religion, nationality or social standing to intervene between my duty and my patient;

maintain due respect for human life;

use my medical knowledge in accordance with the laws of humanity;

comply with the provisions of the Ethical Code;

and constantly strive to add to my knowledge and skill.

I make these promises solemnly, freely and upon my honour.”

One can see that this Pledge, which has been in force since 1995, is terribly doctor-centric. It touches more on beneficence and justice than autonomy. One can argue that the references to autonomy are at best indirect and/or vague – “comply with the provisions of the Ethical Code”, “laws of humanity” or when the Pledge demands doctors to safeguard a patient’s right to privacy and confidentiality. What a shame. SMC should insert something like “Make the autonomy and health of my patient my first considerations” to be in line with what our Courts are saying.

To sum up, even though “autonomy” is one of four core ethical principles of non-maleficence, beneficence, autonomy and social justice, autonomy is seldom if ever the starting point for why a person wanted to do medicine. It is also seldom the first consideration in a doctor-patient encounter among ethical doctors. It is there because it is important, but it certainly isn’t there as a first-amongst-equals (i.e. primus inter pares) principle amongst doctors. But now that it is, and I must change and obey accordingly. If I do not change, my very professional existence may be threatened.

The Modified Montgomery Test: Balance between Autonomy and Beneficence

This is because we have to comply with the Modified Montgomery (MM) Test that the honorable five judges have come up with recently. For the avoidance of doubt, in our Common Law system, judges can make case law through judgments and such case law is binding unless it manifestly flies in the face of laws and statues passed in Parliament, of if new case law is created by judges at least as senior or more senior than the judges that created the old case law. And since the MM Test was created by five High Court Judges that included the Chief Justice himself, it will not be anytime soon that the MM test will be replaced by some new case law. Parliament can pass a law that renders the MM test illegal, but that is even a more remote possibility. So, in short, MM test is here to stay for a long, long time.

Many doctors this Hobbit has spoken to are vexed and asking if the MM test is the correct thing to do and whether the MM test is good for patients and for the practice of medicine in Singapore. These are the wrong questions to ask. The MM test is now part of case law. Case law is still law. Doctors in Singapore just have to comply with the MM test, whether you like it or not. Some of my friends have also asked me if I agree with or like the MM Test personally. That is also a wrong question to ask. The law does not require or even ask for my intellectual agreement or emotional affinity, it only demands my full compliance. And therefore, I comply. Or at least try my best to. So, let us get these unhelpful distractions out of the way. The correct question to ask is, “What is the MM test and what must I do to comply with it?”

The Judges have conveniently divided up a typical patient-doctor encounter into third parts: Diagnosis, Advice and Treatment. They took pains to explain that the MM test only applies to the part of “Advice”. They have also said the traditional Bolam and Bolitho (BB) tests still apply “with great force” to diagnosis and treatment phases of the encounter.

The rationale for this approach is that diagnosis and treatment are “doctor-centric” activities while advice has to move from doctor-centric to more a “patient-centric” position, especially with patients becoming more educated and wishing to be involved in the decision-making process. The five judges stated that professional guidelines and societal context of the UK where the Montgomery Test originated, have moved to “recognising patient autonomy as a principle of prime importance”. Singapore has “undergone the same transformation” as the UK (Para. 118).

The five judges also stated in para. 120 that “It is therefore incumbent on us to reconsider the advice aspect of the relationship through the lens of patient autonomy as well as the principle of beneficence and ensure that both principles are upheld. There must be a balance between both principles (as well a balance between the doctor’s perspective and the patient’s perspective); neither should dominate the other”.

That may be the noble aspiration of the judges, to balance autonomy and beneficence with and through the MM test. With all due respect to the honorable judges, they may have placed too much confidence on the capabilities of the average doctor in Singapore. On the ground, the average doctor will, in all likelihood, not be able walk such a fine line (tightrope?). Many will veer towards patient autonomy and not seek to strike a balance. Most psychologists will tell you that over-compensation in the face of a new, uncertain and challenging environment is the usual and therefore expected response of the human race. Doctors are only human.

One cannot argue with the logic for the MM test to be more patient-centric. However, what this really implies to me at the personal level is another matter. The Bolam-Bolitho (BB) test places beneficence and non-maleficence as the first considerations. When I see a patient and take a history, perform a physical examination, and order some tests so as to get a diagnosis, my state of mind is that of beneficence/non-maleficence (“I am trying to do good without doing unnecessary harm/take unnecessary risk”). After I have secured a diagnosis or several differential diagnoses, as it were, I now have to change gears quite abruptly to a “patient autonomy” state of mind and offer advice to the patient that is relevant to the patient’s context and I let him decide (as prescribed by the MM test). “Doing good” takes a backseat to “You, the patient, decide”. After the patient has decided, I now have to switch back to a “beneficence and non-maleficence” mental state at the treatment phase as the BB test comes back into play again and MM test no longer applies.

Let me tell you, I tried doing this and I felt my thoughts and emotions going through two rounds of mental and emotional contortions in each patient encounter. My medical training in the past didn’t quite prepare me for this roller coaster experience and I felt emotionally exhausted, even pained from the encounter. I blame this on the limited plasticity of my thought processes and a small brain that is unable to cope with the flexibility of thought processes. Or maybe I am just a mediocre doctor. But again, I stress, what I feel is irrelevant. The important thing is I must comply with the law which includes the MM test, even when I am emotionally exhausted from trying to do so.

Hence, this hobbit thinks the average doctor will just let the consideration of autonomy dominate beneficence when it comes to the advice aspect of the patient-doctor encounter.  This is already a taxing experience. To move to a higher plane of balancing beneficence and autonomy (i.e. the thinking behind the MM test) will be even more demanding. Perhaps only a great doctor can achieve this. But greatness is rather a rare commodity by any expectations. Having said that, this hobbit certainly hopes that the judges are correct, and that most doctors can balance the two core principles and comply with the MM test. And this Hobbit hopes that over-compensating a little will not amount to professional misconduct. Certainly, from the patient’s interests and perspective, a little over- is better than under-compensation.

Relevant Information and Acting on Relevant Information

The original Montgomery test referred only to risk-related information so that the patient can make an informed decision of give informed consent. The MM test in Singapore covers more. Para. 138 of the Judgment states “will include “other types of information that may be needed to enable patients to make an informed decision about their health”. The broad types of material information include those identified in the Canadian case of Dickson v Pinder [2010] ABQB 269 (“Dickson v Pinder”) as follows (at [68]):

(a)     the doctor’s diagnosis of the patient’s condition;

(b)     the prognosis of that condition with and without medical treatment;

(c)     the nature of the proposed medical treatment;

(d)     the risks associated with the proposed medical treatment; and

(e)     the alternatives to the proposed medical treatment, and the advantages and risks of those alternatives.

Para. 139 further states “As to what exactly it is about the various types of information that would be considered relevant or material, in our judgment, this is largely a matter of common sense”.

As a third-year medical student, a Professor (now Emeritus Professor) of Surgery did tell me quite succinctly that “common sense is not common”. I can only hope common sense has become commoner since then.

Delegation of Decision Making Process

Singaporeans are getting more educated and want more patient rights. That is probably true. But Singapore remains a very heterogeneous society. There remains a large group of patients, especially the older ones, who do not want to decide for themselves. Many patients everyday will tell doctors, “Talk to my spouse/son/daughter etc. I let my spouse/son/daughter decide”. Their only decision is the decision of delegation of decision-making to a loved one.

Do the same standards of MM test apply here? What if the spouse/son/daughter knows or expects something that is different from the patient? Is it going to be the patient’s perspective or the spouse/son/daughter’s perspective? Is delegation of the patient’s rights to a family member or even friend the same as a “waiver” (para. 150 of Judgment)? This hobbit doesn’t have the answers to these questions.

 MM test: Boundaries Already Creeping?

In para. 62 of the High Court Judgment issued by the Court of Three Judges in the Chia Foong Lin case on 27 June 2017, it was stated –

“When the available tests to exclude Kawasaki Disease (KD) are simple to undertake and when the consequences of no timely treatment of KD could be severe, it is not for a doctor to take chances with the well-being of a patient. If there was a need to take chances, that determination should be left for the patient (or his parents if the patient is an infant) to make on an informed basis. We struggle to understand why such exclusionary tests, which were not harmful to the Patient, were not undertaken, or why the parents of the Patient were not informed of their availability. It is here that Dr Chia badly faltered”.

It would appear here that having a patient-centric (or rather in this case, parent-centric) approach to advice given not only applies to treatment but has now also creeped into advice for investigation in order to make a diagnosis as well. Is the MM test strictly limited to advice for treatment, or advice for investigation as well? In the Judgment given by the five judges in May 2017 in Hii vs Ooi, it was stated in para. 96 “where the diagnostic method is routine, non-invasive and risk-free (as in the case of the measuring of body temperature or blood pressure)”, the MM test need not be applied.

So, if you read the two judgments, one could ask: – does the MM test apply to the decision to order “unharmful” blood tests or not? Is the reach of the MM test creeping further already than originally intended? Was Dr Chia guilty of professional misconduct because she omitted ordering the test, or because she did not give advice to the parents so that the parents can make an informed decision whether to have the test or not? Or does the BB test continue to “apply with great force in the diagnostic context” (para. 101) ? This hobbit also doesn’t have the answer to these questions either.

To be on the safe side, this hobbit will be applying the MM Test to all information transfers from doctor to patient, whether the information is for treatment or just ordering an “unharmful” blood test. The patient will have to decide on an informed basis whether he wants a “unharmful” test or not. This change in practice has become an essential part of my Survival Medicine toolkit.

National Electronic Health Record (NEHR)

We move onto something that has happened in the public sector and which will possibly affect doctors in the private sector as well

There is a lot of talk that participation in the National Electronic Health Record (NEHR) will be made a requirement for clinic licensing. In other words, participation in NEHR by hospitals, clinics and doctors will be made compulsory.

The doctor therefore will soon have access to years and years of patient information that may be relevant to the stipulation of the MM test that “other types of information that may be needed to enable patients to make an informed decision about their health” should be given to the patient.

Problems arise when a doctor misses out on information in the NEHR that was recorded a long time ago. Is the doctor truly responsible for taking into account the whole NEHR of the patient from birth till today so as to tailor-make relevant advice for every patient so that the patient can “informed decision”? Is this humanly possible given the constraints of time, resources and simple human frailty?

The MM test more or less says that the doctor is not responsible for not taking into account information if the patient doesn’t give the information to the doctor, and especially if the doctor has made some effort to elicit such information. But does this afford the doctor significant protection when almost all information is already in the NEHR and the NEHR is readily available to all doctors? Must the patient still give the information when the physical consultation takes place? Would the doctor be held liable because of the extensive coverage of the NEHR? The prospect of being guilty of professional misconduct because the doctor missed out on a relevant morsel of information in the cavernous repository that is the NEHR is real and possibly quite alarming.

Defensive Medicine

The judges have opined that MM test will not lead to defensive medicine. No one can really predict the future with 100% accuracy, but this hobbit hopes that the judges are correct. As this hobbit has said in a previous column, the hobbit doesn’t really know what is defensive medicine. The hobbit has to practise “survival medicine” so as to NOT run afoul of SMC requirements and the law and stay registered as a doctor.

 

Resources Required

The first likely consequence of the MM test is that advice (and consent-taking) will take a much longer time than in the previous BB test era. A professional’s time is a precious resource, be it for a doctor, accountant or lawyer. So, appropriate fees have to be charged to reflect the time and resources spent. With the extensive work that the MM Test requires, this hobbit wonders if consent-taking should be made a separate long consultation by itself and therefore is chargeable as a separate encounter between the doctor and the patient?

Since we are on the subject of resources, the private sector actually has it better. The private sector can readily adjust prices or turn away work so as to give each patient better attention and more time so that advice given can be compliant with the MM test.

The public sector will find this more difficult. They can neither turn away work or readily titrate work volume using the price mechanism, since most of their work involves subsidised patients. The end result is that either waiting and appointment times have to lengthen or the system has to employ more doctors. In the distant past, the public  sector can cut some corners, e.g. use junior staff to perform tasks like advice and consent taking. But this is no longer possible, because from another core ethical principle of justice, private and public sector patients must be accorded the same level of protection under the MM test.

Another consideration is that public sectors doctors usually know their patients less well than the private sector. Many patients see different doctors over time, especially in the subsidised classes, and so the chances of missing out on relevant information about the patient is higher, while the MM test demands that the doctor give advice in the context and from the perspective of the patient. You cannot give the right advice when you do not even notice the relevant information. Basically, the MM test requires less effort on the part of the doctor, when there is good continuity of care with the same doctor, which is hardly possible in the public sector due to training and service imperatives.

My Way Forward (Which may not be yours….)

I do not profess to have the solution or “model answer” to complying fully with the MM test. But I shall share with you what I think will work for me to the best of my limited abilities.

The MM test is divided into three parts. This hobbit suggests that advice-giving itself could also be divided into three parts:

  1. Advice to the Reasonable Patient
  2. Advice arising from information from past medical records
  3. Advice arising from information actively obtained from current encounter

The first part deals with a doctor-centric model of the “Reasonable Patient”. The reasonable patent is an artificial legal/ethical construct that does not exist physically. In the BB test era, as long as the doctor gives advice sufficient for “the reasonable patient”, he is absolved of wrong doing. Here, I think standard forms can be designed and used as a checklist to aid both the doctor and patient when the doctor gives advice, especially for common procedures such as a colonoscopy, TURP, removal of breast lump etc.

The second part deals with information that can be gleaned from the patients’ records, such as the NEHR. This is where perhaps Artificial Intelligence (AI) Tools can be designed to automatically screen a patient’s electronic record to highlight relevant and important information for both patient and doctor. I think an AI Tool will be far less error-prone than a doctor scrolling and reading a voluminous patient record quickly. But for now, we still have to just go through the past medical records manually and look for aspects that we think from the patient’s perspective will affect our advice-giving, those aspects that happen to be more than what is required by the hypothetical Reasonable Patient.

In giving advice, both doctor and patient should sign off the standard forms and AI-highlighted information and the advice that is consequently given.

The third part involves the doctor actively eliciting information that is not expected of the reasonable patient or highlighted from the patient’s electronic records and giving relevant advice from the information obtained in the second phase. The doctor can and should ask the patient, “Is there any other information you want to tell me that I already do not know from your past medical records that you think may affect my advice to you from your perspective?”

On top of this, an audio recording, with the patient giving consent to the recording, of the entire three-part advice-giving process should be made. The patient’s decision to give consent or not to an audio recording should be duly documented and acknowledged by the patient in writing (a simple signature in a simple form would suffice, I suppose).

If the patient refuses to even acknowledge in writing that he refused giving consent to making an audio recording, then the doctor can always refuse to carry on with the doctor-patient relationship and stop the consultation in non-emergency situations. (The MM test only applies to non-emergency situations anyway).

I am not advocating this approach to anyone, but it is my personal “best effort” response to complying with the MM test now – which is to make an audio recording. It is useful for both the patient and the doctor when a dispute arises.

Survival Medicine in the Era of MM Test, New SMC ECEG/HME and Deterrent Sentences

Let us now return to Survival Medicine, which is what this Hobbit is trying to achieve to ensure his professional survival. Recently, three unrelated events collectively have affected me greatly.

The first is the new 2016 ECEG and HME which has been in force since 2017. The new ECEG is 65 pages long and the HME is 155 pages long. That’s 220 pages in total and multiples in length of the last version. All doctors must comply with the ECEG. All doctors must also comply with the HME as well, or be prepared to give good reasons why they cannot (and that is not going to be easy). This weighs heavily on this hobbit’s mind – the sheer bulk, comprehensiveness of the ECEG and HME. It’s tough reading going through both documents, and complying with them is even tougher. When the prosecution lawyers “throw the book” at you today when they draft their charge(s), you can bet there is a lot more book to throw at you, 220 pages of book to be exact.

The second is the MM test. The MM test is described in the Judgement on Hii Chii Kok vs Ooi Peng Jin London Lucien dated 12 May 2017 and is over 100 pages long. Every doctor should read this document. It is not easy reading, but essential reading. Some of the implications of the MM test have been described above. Suffice to say that the MM test demands a lot more effort from doctors, because doctors now do not have to just give advice that is relevant to the reasonable patient, but information that pertains to the particular patient’s circumstances and perspective that the doctor should have known.

The third is a little lesser known. It is a High Court judgment delivered on 25 July 2016 on the case of SMC vs Wong Him Choon.

In Para 117 it is stated:

“As can be seen from Lee Kim Kwong and Kwan Kah Yee, we have on at least one previous occasion referred to and, on another, exercised our discretion to depart from precedents that do not reflect the prevailing circumstances and state of medical practice. In our judgment, public interest considerations weigh heavily in imposing deterrent sentences on errant doctors who are found guilty of professional misconduct. In this regard, we expressed at the hearing that we found the sentences imposed in the Dr K case, Dr L case and Dr Amaldoss case (“the Relevant Precedents”) to be lenient. We observed without reservation that these sentences should have in fact been longer. We highlighted to the parties that this court has given fair notice of its intention to recalibrate sentences across professional misconduct cases, and would do so in the present case”.

In other words, in many cases, doctors can expect to face more severe punishments than in the past should they be guilty of professional misconduct, especially in cases where public interest is involved.

Personal Survival Medicine

I cannot claim to speak for anyone but myself, but I do feel anxious about the current and future practicing environment. When I ask questions about certain aspects of the MM test to lawyers, many of the answers come back as “We are not sure, this has not been tested in the Courts yet. We have to wait for the first case”. There is uncertainty in both medical and legal work (The Honourable Chief Justice made this point as well, in the aforesaid Ransome Oration), and we have to accept that.

But still, it is hardly reassuring. I know doctors who would rather have a purulent abscess in his buttocks before he wants to be a test case for the SMC or Courts. An abscess you can drain and treat over a few days; a test case can last for months if not years.

So, again, my response is to practise Survival Medicine: be safe, rather than sorry. I am prepared to over-compensate a little out of prudence.

Is that defensive medicine? Like I said, I do not know what is defensive medicine. I just know I need to practise survival medicine. I need to survive.

 

One thought on “Survival Medicine 2: The Modified Montgomery Test

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