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.