The Matrix

The General Elections 2020 are finally over. It is already tough enough for our infectious disease colleagues to fight Covid-19 before the GE, but during this GE, they also had to contend with cardiac Hepatitis A. This new disease was discovered in Singapore recently when cardiac cockles were also found to harbour the Hepatitis A virus, like the cockles that many ingest orally. Public health experts have warned that warming these cardiac cockles do not completely kill these nasty Hep A viruses; they have to completely cooked by boiling them thoroughly. Like global warming, cardiac warming has some negative consequences.

In any case, this hobbit has noticed that the see-hum in his char kway teow are getting smaller and smaller while extra see-hum now costs an addition $2. The see hum in my laksa has also gone the way of the mythological see hum that was purported to have been found in mee siam a few years back in our country.

Anyway, humming along, let us talk about the Sentencing Guidelines that were released by the SMC Sentencing Guidelines Committee recently. There is a lot of angst amongst quite a few doctors about the “new Sentencing Guidelines”, especially the “harm-culpability” (HC) Matrix. Doctors are worried that most cases will end up with lengthy suspensions and even striking off, once the matrix is applied. The “harm-culpability” matrix is not to be mistaken with the “hum-culpability” matrix that is endemic in Sengkang.

On the surface of it, the potential for stiffer sentences may appear true. But in reality, probably not. Firstly, this Sentencing Committee did not invent the HC Matrix. The Court of Three Judges (C3J) did when they heard the appeal of the Wong Meng Hang v SMC case (i.e. the “liposuction death case”) in Nov 2018, when the HC Matrix was introduced as part of the larger 4-step Sentencing Framework. The HC Matrix originally applied to cases where patients were physically harmed in the course of clinical care delivered by the offending doctor. This Sentencing Framework and its constituent HC Matrix are already case law with effect from Nov 2018 and all SMC hearings should take reference from the Framework and Matrix for cases that fall under the category that the HC Matrix was meant to be to applied to.

What the Sentencing Committee did was to extend the coverage of the Framework and HC Matrix to cases that did not involve physical harm or clinical care. Harm caused may also include “non-physical harm (e.g. psychological or emotional distress), potential harm, as well as harm caused to public confidence in the medical profession, to public health and safety or the public healthcare system”. (para 44 of Sentencing Guidelines, SMC, June 2020). We don’t really know why the Committee extended the coverage. Maybe it’s administratively more expedient to have one Framework and Matrix to apply to all cases instead of having different frameworks and matrices for different types of cases. Bearing in mind that the majority of Disciplinary Tribunal (DT) members are doctors, it is probably better to have one Framework and Matrix to apply rather than multiple frameworks and matrices. In any case, the SMC June 2020 Sentencing Guidelines do not mention the rationale of this and I guess we will never know.

So is this the thin end of the wedge as we know it?

Not quite. The first thing that we need to know is the Sentencing Framework and HC Matrix only applies after the DT has decided that the doctor is guilty under the Medical Registration Act (MRA). A doctor is punished by SMC most commonly for professional misconduct which is under subpara (d) of Section 53(1) of the MRA.

Section 53(1) of the MRA is reproduced here

53.—(1)  Where a registered medical practitioner is found by a Disciplinary Tribunal —

(a)to have been convicted in Singapore or elsewhere of any offence involving fraud or dishonesty;
(b)to have been convicted in Singapore or elsewhere of any offence implying a defect in character which makes him unfit for his profession;
(c)to have been guilty of such improper act or conduct which, in the opinion of the Disciplinary Tribunal, brings disrepute to his profession;
(d)to have been guilty of professional misconduct; or
(e)to have failed to provide professional services of the quality which is reasonable to expect of him

Arising from the now famous or infamous Lim Lian Arn case, we now know that the threshold for attaining professional misconduct is actually higher than what some DTs or SMC’s lawyers thought. This hobbit wrote about this in Aug 2019 and some of the stuff is reproduced here:

Personally speaking, the most helpful information in the Judgment (of the Lim Lian Arn Appeal case) is it makes out 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.”

Some doctors have also opined that some DTs are more likely to find a doctor guilty when the harm is great. This is an example of “working backwards”. If the patient has been greatly harmed, then the doctor is more likely to be culpable or guilty and since the harm is great, then the penalties must also be greater, especially according to the HC matrix. This is the circuitous logic that some doctors are afraid may happen on the ground. 

There is indeed a possibility of this happening although there is no hard evidence to suggest this. But if this indeed happens, then it is an example of taking two independent variables (culpability and harm) and linking them up as what some epidemiologists may describe as confounding variables which will in turn lead to errors in conclusion. Let’s be clear about this – It is only after the determination of guilt has been made by the DT does the degree of harm and culpability apply in the realm of sentencing. Not the other way around.

Para. 39 of the Sentencing Guidelines makes this clear:

“When a complaint is referred to the DT, the DT should establish that the departure in question (e.g. from the standards provided by the SMC Ethical Code and Ethical Guidelines, or from the standards observed by reasonable practitioners in the profession) is so egregious that it warrants disciplinary action. The DTs should then determine whether the doctor is guilty of the charge(s). Only then, should the DTs proceed to consider the appropriate sentence to be imposed”.

The one exception to this “working backwards” approach  is in the case when no one actually suffers any harm at all. I suppose when no one suffers any harm, then it is most likely that the doctor will not be found guilty of professional misconduct. Even then, abovementioned factors such as potential harm etc have to be considered.

In summary, the Framework and HC Matrix elucidated in the SMC June 2020 Sentencing Guidelines are really nothing very new. They are just extensions of coverage to what was already in force in case law since Nov 2018. What is more important is that since the Lim Lian Arn case, it is clear that the threshold for finding a doctor guilty of professional misconduct is a high one, higher than previously thought by many. And that, really warms the cockles of this hobbit’s heart. The “hum-culpability” matrix is alive and well here.

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