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.

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.

 

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.

 

 

 

About That $100,000 Fine for An Injection

So, this is how the practice of medicine, as we knew it, dies in Singapore.

Not quietly or softly in the arms of compassion and empathy, but throttled inadvertently by the hands of a $100,000 fine.

Interesting Points

There are many interesting points about the case.

Firstly, there is the patient who complained against Dr Lim Lian Arn. It is interesting how the incident of the H&L injection took place on 27 October 2014 but she only complained against Dr Lim on 11 January 2016, some 14 months later. Especially when she was purportedly unhappy with the adverse effects and complications which are quick to surface and temporary: – pain and inflammation, discolouration, paper-thin skin and loss of fat and muscle tissues. What took her so long to complain?

Secondly, the SMC lawyer asked for a 5-month suspension for Dr Lim. This is mightily interesting. The ill effects suffered by this patient are far less serious than the one suffered in the Eu Kong Weng case. In the Eu Kong Weng case, also a case involving informed consent, the patient suffered serious complications. Dr Eu was suspended for 3 months and he appealed to the Court of Three Judges. The Judges upheld the (minimum) 3 month suspension but commented that had the law provided for less than a 3-month suspension, then a shorter period would have sufficed. But since the minimum period was a 3-month suspension, then the Judges had no choice but to uphold the 3-month period since they felt a suspension was indeed warranted. If so, on what basis did the SMC lawyer from Drew and Napier ask for a 5-month suspension? This hobbit does not understand. I hope SMC President, Registrar and members understand at least retrospectively why a 5-month suspension was warranted to be asked for by their lawyer.

Thirdly, we come to the doctor himself and his lawyer. Faced with the SMC lawyer asking for a 5-month suspension, this Hobbit speculates that chief on their mind is that they want to avoid a lengthy suspension. So, they pleaded guilty at first instance and offered to pay the maximum $100,000 fine or the minimum 3-month suspension. This is perfectly understandable because for a senior and successful orthopaedic surgeon in private practice, he probably makes more than $100,000 in 3 to 5 months. A 5-month suspension would mean he has no income in that period and worse, he has to bear the fixed costs of running a clinic, e.g. the rent and the pay of his clinic assistants and nurses. A secondary concern (if they think far enough) is that should they offer something low like $5,000 or $10,000, and should the SMC Disciplinary Tribunal (DT) accept, there is no guarantee that the SMC lawyer will accept and instead, he may choose to appeal to the Court of Three Judges. In other words, in trying to avoid what they deem as undesirable consequences, Dr Lim Lian Arn has to make a generous-enough offer such that BOTH the DT and the SMC lawyer will accept. In his self-interest, Dr Lim did as he was supposed to do. Nothing wrong with that. Perhaps this Hobbit would have done the same, given similar circumstances.

Fourthly, we go on to the Disciplinary Tribunal (DT) itself. Faced with an offer of $100,000, they had three choices – they can either accept or lower the fine, or still suspend Dr Lim. Thankfully and rightly, they decided that Dr Lim should not be suspended. They certainly couldn’t raise the fine, since the $100,000 was already the maximum amount allowed under the law. It would look very strange if they decided to lower the fine since the defendant already offered $100,000 even though the DT thought the closest comparison to this case was that of Dr Eric Gan, in which Dr Gan was fined $5,000. So, as expected, they decided to fine Dr Lim $100,000, the amount that Dr Lim himself offered. This Hobbit does not think the DT did anything questionable up to this point.

What is indeed questionable is the appropriate standard of care that this DT promulgated for taking an informed consent for an H&L injection.

They said that for the patient to give an effective informed consent, she should have been told of

(a) post-injection flare, in particular, that:

(i) the Complainant may experience increased pain and inflammation in the area injected that can be worse than the pain and inflammation caused by the condition being treated;

(ii) the onset of the post-injection flare is usually within two hours after the injection and typically lasts for one to two days;

(b) the post-injection flare can be treated by rest, intermittent cold packs and analgesics;

(c) change in skin colour including depigmentation (loss of colour), hypopigmentation (lightening), and hyperpigmentation (darkening);

(d) skin atrophy (thinning);

(e) subcutaneous fat atrophy;

(f) local infection; and

(g) tendon rupture.

To me, this is exactly the kind of “Information dump” that the Judges said should be avoided when they formulated the Modified Montgomery (MM) test for Singapore in 2017 in the Hii Chii Kok vs London Lucien Ooi case.

Fifthly, the MM Test itself, now obviously in full force in SMC trials, including this case.

The MM test replaced the Bolam-Bolitho (BB) test because the five Judges (in the Hii Chii Kok case) felt that in the provision of medical advice (which includes getting the patient to give an effective informed consent), the process must be patient-centric rather than doctor-centric. Nothing wrong with that in theory.

A few doctors, faced with disciplinary proceedings and medical negligence suits, relied on the Bolam test in their defence, almost to the point of abusing it. They would nominally come up with a few friendly “expert” opinions to justify their actions and pass the Bolam test.

This was the weakness of the Bolam test. But the Bolam test also had a strength – it provided for a reality check. The Bolam test required one to ask what was actually practiced on the ground by many doctors and took reference to such common practices.

This “reality check” element is somewhat missing in the MM Test. So, the DT accepted an information dump checklist as the required standard of care in giving medical advice when practically no one does this. The only reality check the DT was seen to undertake was that it accepted that it was not universal practice to get a written consent for a H&L injection.

Dr Lim Lian Arn was charged under the 2002 version of the SMC Ethical Code and Guidelines (ECEG). Many respected orthopaedic surgeons have been on the SMC as members since 2002. In fact, at least one of the current members is an orthopaedic surgeon. All the DT has to do is to ask these SMC-member orthopaedic surgeons if they routinely gave ALL such information to a patient going for H&L injection, and documented as such in the casenotes as well, to know what is the reality on the ground. This hobbit is quite confident that practically all orthopaedic surgeons who have been on SMC at any time since 2002 will fail this simple test. It’s just that none of their patients complained, unlike Dr Lim’s.

There is nothing in the published Grounds of Decision that suggests they did such a reality check. Indeed, the MM test itself does not include such an element of reality check except that it suggests that expert opinion could be taken into account when appropriate. The test of materiality (in deciding what information needs to be given) is solely from the patient’s perspective and nothing much about what was actually being practiced on the ground.

Nonetheless, the standard of care stated in the Grounds of Decision of the DT is Medico-Legal Reality.

What’s next

The H&L Injection

Lets’ get back to the procedure itself – H&L injection. This is a cheap, effective and common office procedure commonly done in the specialist and GP setting. But no more in the post $100,000 fine era. This hobbit would like to differentiate by calling the past the pre-LLA era and the current period as post-LLA era. (Dr Lim Lian Arn deservedly gets naming rights to such a momentous incident)

Ask any business school professor and he will tell you to price in the risk. Here is how you price in the risk:

Pre-LLA era price for a H&L injection by a GP – $50 to $150. Let’s take $100 as a reference price.

No of H&L injections you think you give before a patient complains: 100

No of complaint cases that will be successful (where you pay a fine of $100,000): 1 in 3

Estimate: 300 cases of H&L will result in 3 complaint cases, of which 1 will be successful

Economic cost: one $100,000 fine, AND estimated $200,000’ or about $70,000 a case of emotional distress, time lost, effort in preparing for the 3 cases of complaints etc.

Total price-tag for risk premium is $300,000 for 300 cases

Risk premium is therefore $1,000 a case

New Price for one H&L Injection: $1000 + $100 = $1,100

Conclusion 1: Price of H&L injection by a GP in the post-LLA era: ~$1100 (up from $100)

Of course, these numbers will only be significantly higher in the specialist setting. A H&L injection by a hand or orthopaedic surgeon may now cost $2000 to $4000 in the post-LLA era, after taking into account their own risk premiums.

Many patients in the HDB heartlands cannot afford this thousand-dollar jabs and the neighbourhood GPs know this too. Most of these patients will then be treated conservatively with brace and medication, resulting in more unnecessary pain or suffering by the patient (and may cost more than $100 but less than $1100). Or these patients will be referred to the public sector. This is not to say that the public sector doctors can do a better job than private GPs with better outcomes and therefore attract less complaints. It is just a simple transfer of the risk premium to the public sector where much of the costs are subsidised by the taxpayer. The richer GP patients will be referred to the private specialists because they can afford to pay the prices charged by the private specialists. The private specialists too may refer their poorer patients to the public sector.

The patient that will complain to the private GP sector will also likely complain in the public sector or in the private specialist sector. In the former case, the state/taxpayer takes up the risk and in the latter, the risk premium is covered by higher private specialist fees.

Incidentally, fee benchmarks currently do not cover office procedures like H&L injections.

To summarise – there will be little demand for a $1,100 H&L injection in the HDB estates, and GPs are also unwilling to take up this new risk premium for a hundred dollars or so. In simple economic theory, the demand and supply curves do not cross and there will be little or no transaction (i.e no volume of work). Consequently, the standard of care given in the Grounds of Decision of the DT, while now is Medico-legal Reality, will also in all likelihood effectively become Virtual Reality in the HDB Heartlands. How interesting.

Conclusion 2: In the post-LLA era, not many HDB heartland GPs will offer H&L injections. H&L Injections will go the way of dodo bird in the heartlands

The expected repartee from people who are out of touch is that this is not about risk premium but about good consent-taking and documentation. If you take a good informed consent and document as such, you should be OK.

Frankly, not many doctors are interested in this spiel anymore. Certainly, after the Eu Kong Weng case, no doctor is really sure what will be deemed effective informed consent-taking under the scrutiny of SMC or the Courts. And if I have to take this kind of risk for a $100 job, I might as well not offer the service and refer to someone else to do the job (and take the risk).

This is probably the outcome that will take place in the next few months, if it has not taken place already. Please do not call this Defensive Medicine. As this Hobbit has said before, it is called Survival Medicine. It’s the only practical way to survive. For me at least.

But it’s not just about H&L injections. How about other simple everyday office procedures like Speculum Examination, Proctoscope Examination or Ear Syringing? The same principle applies and a heartland GP will transfer the risk premium to the public sector or the private specialists by referring to them.

Conclusion 3: In referrals we trust (to avoid taking on insufferable professional risks)

You may ask: How did we get to this situation?

Answer: because everyone behaved in a way that is expected of them

The Judges wanted to move from a doctor-centric to a patient-centric process when medical advice is provided. They promoted patients’ rights to autonomy through promulgating the MM test.

The lawyer wanted to do a good job as SMC’s lawyer by pushing for a deterrent 5-month suspension. He is defending a particular patient’s rights to autonomy as well as promoting patients’ rights in general by going for a deterrent sentence.

The SMC DT wanted to be seen to be defending/promoting patients’ rights as well by accepting Dr Lim Lian Arn’s offer of a maximum $100,000 fine. They also want to send a signal to all doctors that the standards (as they see it) as prescribed by the MM Test are well in force when they promulgated that long list of potential complications and side-effects for a H&L injection.

Dr Lim Lian Arn acted as he should, by offering to pay $100,000 or be suspended for only 3 months (Reasonable speculation: he wanted to avoid a lengthy suspension and also a possible appeal from the SMC lawyer should the punishment be deemed too low).

The patient-complainant is probably satisfied too that the doctor was fined $100,000. Whether she proceeds on to a civil suit or not, we don’t know.

Every party got what they wanted: The Patient, The Doctor, The SMC Lawyer, The Judges, and The SMC DT.

But this Hobbit cannot help but wonder if Singapore society deserves more.

Because the Likely End-Result is collectively, patients will find it either much more difficult to get a H&L Injection from a doctor or will have to pay significantly more for it. And the same goes for other common, cheap and effective office procedures. A situation of either scarcity of service providers and higher prices will result, leading to unnecessary higher healthcare expenditure.

Society will have to pay for this in the long run. Unless the politicians and senior civil servants step in soon with some form of tort reform for medico-legal cases, the practice of medicine, as we knew it, has truly died. And the biggest losers are the patients collectively and society. Not the doctors. I just earn a few hundreds less a month, but I’ll live. Don’t worry.

 

NEHR: A Patient’s Perspective Through A Doctor’s Eyes

Privacy in Your Own Home? Think Again.

Imagine you owned a property you call home. It can be a simple 4-room HDB flat or a sprawling Good Class Bungalow (GCB) in District 10. You receive guests from time to time. Naturally, there are some guests you allow only to sit in the sitting room and maybe you allow them to go to the kitchen so that they can go to guest toilet in the 4-room HDB flat. But certainly, you will not let them go to the master bedroom or use the toilet adjoining it or your children’s bedrooms, unless they are very close relatives or friends. And I mean real close.

If you are staying in a bungalow with many rooms, it gets even more complicated. You may have a family room upstairs or private dining area away from the dining area where you entertain guests. The bungalow may have a study, an attic or a domestic worker’s room which guests are never welcome. In fact, you do not even want anyone other than your immediate family members to know that these rooms exist. These are very ‘private’ rooms not meant for anyone else to enter other that your immediate family members who live in this building or the domestic worker that cleans these areas. You would normally welcome guests in the sitting room or dining room where you entertain. But rarely would a guest be welcomed upstairs where your family and you share private times together.

Now serious problems arise when a bunch of people who now insist that once they enter through the doorway into your sitting room, they have a right to access every single area in the house, including your master bedroom toilet and your wife’s walk-in wardrobe as well as your study and your kids’ study. Not only that, this bunch of people want to rummage through your refrigerator and trash bin to gather information on what foodstuff you have been buying, eating and disposing.

Would you allow that? I wouldn’t. And I guess neither would 90% of people in Singapore.

But that is what the National Electronic Health Record (NEHR) does, in an analogical sense. Actually, the NEHR goes further than this. You don’t even have to allow the person through the front door. Any person who claims he has business or matters to deal with you can walk into your house and every room in your house. He is presumably “authorised”.

This hobbit understands that today, the NEHR has been rolled out in all Restructured Hospitals other than IMH. Any doctor who attends to you has a right to enter into your NEHR and see practically everything there (walk through every room in your house). There may be some small pockets they may not access (equivalent to the small safe in your bedroom) to. He can even go into your fridge or wardrobe and see what you have bought (look at your pharmaceutical record) or eaten.

And you do not even have to allow him in. He just has to claim he is your doctor. Of course, if he isn’t your doctor, that can be tracked, and the doctor will be punished. But that is post-fact. The damage is already done, your house/NEHR has been trampled all over already by the trespasser or unwanted visitor.

Privacy Rights – The Right To Control Who Knows What

The NEHR does not take into account the privacy rights of the patient in a contextual sense. There are some things I will tell Doctor A and there are other things I want only Doctor B to know. I do not want Doctor A and B and C (whom I see for different things and in different contexts) to know everything or have the same information about me.

The fact is, we all compartmentalise our lives. In our families, there are some things we tell certain family members and some things we tell other family members. Each family member often has different information or data-sets of us.  This is even applicable to close family members, such as siblings or children. Do you tell all you siblings or children exactly the same information about yourself?

The same applies in the workplace – certain colleagues know something of us that other colleagues do not. Of course, relatives and colleagues may share information among themselves through interaction but such interaction is usually coincidental, contextual and limited so that it is extremely unlikely that many relatives or colleagues have the same information about us. A simple example would be I would tell my sister certain information and I would tell my brother other information. I will also tell them they must tell no one. I thus retain privacy rights. Of course, if they betray my trust and tell each other the information they possessed without my permission, that is a breach in confidentiality (not privacy). We must not conflate confidentiality with privacy.

This is the essence of privacy rights being applied in our daily lives. As private individuals, we have the right to decide what each person knows about us through the selective disclosure of information to different parties by us. The control lies with me almost all the time, hence it is my right to privacy. It is not a privilege conferred by others. So, the latest reporting that states folks may opt-out of having their information onto the NEHR on a case-by-case basis (subject to approval) is manifestly not good enough. Case-by-case means it is a privilege conferred, not a right possessed. I have a right to privacy, not a privilege of privacy.

Of course, I do not have absolute control over privacy all the time. The elected government with the mandate of the people may take away those rights once in a while through the passing of laws. For example, the Infectious Diseases Act takes away some of these rights. Doctors have to inform MOH when their patients contract certain communicable diseases. The underlying premise is that this limitation of the individual’s privacy rights must be for a greater public good – the prevention and control of an infectious disease outbreak that affects a great many people.

However, what is the “greater public good” justification for the sharing of my medical information as a patient with all my caregivers? I would say that there is little good other than my own well-being or personal welfare. Don’t I get to decide what personal good I intend to achieve with the NEHR? Why can’t I decide what information to give each doctor or caregiver (e.g nurse)? Or even more fundamentally, If I decide to opt out completely of the NEHR, why is my doctor still forced to upload my information onto the NEHR? Yes, when I opt out, no one can access the NEHR, but that is a question of confidentiality, not privacy. My personal well-being arising from participating in the NEHR is not a public good, unlike that of the Infectious Disease Act. The decision to opt-out of the NEHR may be a medically suboptimal decision, but that is my business, not the people who operate the NEHR, as long as I know the consequences of me opting out.

NEHR: Runs Against the Grain Of Current Case Law?

It is even more confusing when you consider this in the light of the direction of medical ethics that our honourable judges are trying to steer us. The Modified Montgomery (MM) Test is now firmly established as case law in Singapore. Essentially, the MM Test firmly puts patient autonomy at the forefront of medical ethics in the country. The Chief Justice has said that patient autonomy is the “first” of the four core principles of medical ethics of beneficence, non-maleficence, social justice and autonomy.

The MM test basically says the patient has a right to decide what he wants, even if the final decision is medically-speaking sub-optimal and that the doctor’s responsibility is NOT to make that decision for the patient but simply to provide all relevant information (from the patient’s perspective) to the patient so that he can make an informed decision. An informed decision from the patient’s perspective may not be the best medical decision from the doctor’s perspective, and if the two do not match, the patient’s decision must prevail (as long as it is not against the law, such as euthanasia, surrogacy etc.). The MM test ensures that patient autonomy is expressed in its fullest sense in our society.

If that is the case with the MM test, then why are the NEHR planners and implementers forcing each patient to

  • share the same medical information with all doctors and nurses when the patient may prefer otherwise?
  • have their medical information uploaded onto the NEHR, even when the patient has opted-out?

Therefore, the NEHR as it now stands, is clearly going down the slippery slope of compromising patient autonomy.

Examples…..

A simple example would be, say, a married, 40 year old, working, female PMET. She would have in all likelihood most or all of the following doctors –

  • a family GP she, her spouse and her children see (who happens to be her old classmate from junior college);
  • a company doctor she sees occasionally at the workplace when she is unwell;
  • a gynae who delivered her kids and does the her pap smears and gynae checkups;
  • a breast surgeon who removed a benign breast lump a year ago and
  • an aesthetic doctor she goes to occasionally for pigmentation treatment as well as for the occasional skin peel.

We haven’t even talked about other doctors she has used whom she hasn’t any recollection of – such as the radiologist, pathologist or anaesthetist, who ALL have “rightful” access to her NEHR records as “authorised” healthcare professionals.

Do you think she wants ALL her doctors to know she has had laser treatment for face pigmentation every six months? (We are not even talking about more extensive “work” like liposuction, filler injection and breast implants, just simple laser treatment for pigmentation)

Or do you think a 45 year-old homosexual man wants all his doctors to know he has had treatment with Dr Y for anal warts excision? (He hasn’t “stepped out” yet)

Or would a 58 year-old woman who is now happily married with adult children want anyone to know she had an abortion when she was 17 (We all make mistakes when we were young, just some mistakes are bigger than others)?

Would anyone want all his or her doctors to know one is on antidepressants or erectile dysfunction drugs? Most men wouldn’t even want most of their doctors they see to know they have prostate problems, let alone be given Cialis or Viagra.

Or that all your doctors now know you have been tested for HIV before (result negative, whew) and the test is not part of a mandatory pre-employment workout?

Or that the radiology results of you, a lady, who had a fractured cheek bone as shown in an X-ray taken at the A&E 10 years ago after your then (now ex-) husband assaulted you, is now known to all doctors and nurses taking care of you now for fractured ribs, whiplash and concussion arising from a road traffic accident? Your current husband loves you, but he is wondering why he gets strange looks when he visits you in the hospital from all the hospital nurses and doctors.

Of that that a well-known 60-year-old CEO of a bank (or Professor) was once admitted to a hospital for observation after a fight and had lost consciousness and fractured his nose 40 years ago?

The list goes on and on.

What NEHR Will Contain….

In case you are wondering if these examples are realistic, well – according to the official NEHR brochure: the following information will be uploaded onto the NEHR:

  • Admission and visit history
  • Hospital discharge summaries
  • Laboratory test results
  • Radiology results
  • Medication history
  • History of surgeries or procedures
  • Allergies and adverse drug reactions
  • Immunisations

So all the above scenarios can happen in real life.

Seriously, from my personal viewpoint, I would like to share only the last two points onto the NEHR without reservation so that all my doctors and care-givers (i.e. who are “authorised healthcare professionals, according to the abovesaid brochure) can know this about me: allergies, adverse drug reactions and immunisations.

This hobbit has serious reservations about the rest, and thinks they should be handled with extreme care.

Security

The last point I would like to deal with is that of security. Security can basically be defined as measures put in place to prevent breaches of confidentiality. How secure is the NEHR? I am confident that the planners and implementers have tried their reasonable best to ensure best practices in IT security have been put in place or are being put in place. After all, the NEHR, being backed by government, has enormous resources to do so.

Even then, no IT system, especially one that is internet-based and cloud-based, with literally unlimited number of entry points (every clinic or hospital computer that is linked to the internet is an entry point into the NEHR) is hack-proof. If it were not so, there would be no need for the government to delink civil servants’ work computers and intranet from the internet last year. It was reported this affected all 143,000 civil servants. That is a tacit admission that no security system is fool-proof or hack-proof. I suppose this shows cyberthreats cannot be wished away, but they can be effectively partitioned away.

This hobbit is sure the NEHR is as secure as can be, but not quite more secure from the civil servants’ work computers before they were delinked from the Internet. In fact, the fact that the NEHR exists must in itself be a very tempting trophy database for hackers from all over the world to try and test and breach.

In the event a breach happens and records and medical information are stolen, what is the liability of the NEHR or  the government with regard to this breach, and what are the rights of the affected patients? Can he seek redress, compensation, damages etc.?

This hobbit is unsure. These are not stated in the aforementioned NEHR brochure. Theoretically, the NEHR is exempt from the provisions of the Personal Data Protection Act (PDPA) as it is a government programme. Today, if there is unauthorised access to your data with say, your mobile phone network operator, the mobile phone network company MUST inform you so, because the company has to comply with the requirements of the PDPA. If your GP record has been hacked into today (Pre-PDPA) or physically stolen, your GP has to inform you too. You can probably sue your GP or the mobile phone network company for civil damages and the regulators can use the provisions of the PDPA to punish the GP, or the mobile phone network company.

If there is a breach of the NEHR and your record is stolen, will the administrators inform you? No one knows. Will the penalties of the PDPA apply? Probably not. Can you sue the NEHR for civil damages? Again, this hobbit really doesn’t know.

Conclusion

In conclusion, is the NEHR a bad thing? No. But a lot of work needs to be done with the NEHR as it now stands; beginning with:

  • We need to discuss openly about the potential downsides of the NEHR as the NEHR currently stands and not just only extol the positives of NEHR.
  • We need to recognize that privacy rights need to be adequately addressed. The patient has to retain the power to give and retain information to the healthcare professionals or settings as he sees fit. It is natural to compartmentalise our lives and our interaction with people, and this compartmentalisation extends to the healthcare realm. You cannot talk about confidentiality and security without settling the issue of privacy rights first.
  • We need to clearly spell out the rights of the patient and the responsibilities and  liabilities of the NEHR owner(s) when there is a security breach. Some sort of a patient charter should extend to the realm of NEHR too.

And we are only talking about looking at the NEHR from the patient’s perspective. We haven’t even talked about the NEHR from the perspective of the people who record and use the information – the healthcare professionals.

A reader of this article may well ask “The typical or average patient in Singapore will in all likelihood not know the issues this article has raised and will not be concerned as such”. It is because this Hobbit is a doctor that he can understand and bring up issues such as privacy, confidentiality and security which dogs the planning and implementation of NEHR.

But that is besides the point. We are actually all in the same boat as “patient advocates”, working for the patient’s best interests and betterment of patient’s well-being: politicians, civil servants, IT experts, healthcare professionals such as doctors, nurses etc., and of course the patients themselves. If we are sincere and serious about being patient advocates, then the questions raised in this article need to be communicated to the public, recognised, considered and addressed by all stakeholders. These issues cannot be ignored, dismissed or simply swept aside if we truly work in the best interests of the patients from a holistic and comprehensive perspective.

The residency rollout was one bad example where those in power then were dismissive of the issues and reservations raised. They steamrolled ahead and adopted the ACGME-I system and the results are for all of us to see now. It is still early days, the NEHR need not go down the same  painful route as residency.

 

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.