Hobbits are by nature fun-loving folks who firmly believe in the sacred value of liberty. The freedom to choose is a fundamental right hard-wired into every hobbit’s brain; unless that right is circumscribed or taken away by law. For example, you are not at liberty to choose whether to wear a mask or not once you step out of your home.

So this hobbit firmly believes that everyone has the right to choose for oneself to be vaccinated or not, and one’s children as well. We should also be allowed to choose what vaccines we want to be vaccinated with as long as the vaccines have been approved for use. Of course, with choice, comes responsibility. We have to face the consequences of our choices, be they good or bad.

Among doctors, there is a wide range of opinions and beliefs when it comes to Covid-19 vaccination. As individuals, they are entitled to their personal beliefs. And they are entitled to make choices and decisions arising from these beliefs. A doctor can choose to be vaccinated or not. We cannot take that right away from an individual, just because he happens to be a doctor.

But things may get a bit edgy when you propose a position to the public in your capacity as a doctor on something related to healthcare or a medical service or product. This hobbit believes you should be evaluated and judged in your professional capacity as a doctor.

In short, as an individual you can have almost complete liberty in choosing your personal beliefs, but not so when as a doctor, you choose your professional positions.

Take the recent two incidents involving a few doctors for example. Last month, 12 doctors penned an open letter on the risks of Covid-19 vaccination for children. They asked that traditional “killed” virus vaccines be used on children instead of the mRNA vaccines. 11 of the 12 doctors subsequently retracted the letter, including the author of the letter. The letter was addressed to “all parents deciding to vaccinate or not to vaccinate their child”. Many experts have since spoken out debunking the contents of this infamous letter.

In their retraction, these 11 doctors said “We like to withdraw all our humble ponderings, as some of our thoughts may be misunderstood by some laypersons. We will henceforth ponder in a more professional and private forum”.

This hobbit shares the same concern as the eleven doctors who retracted when it comes to “laypersons” – they need to be protected. Within the medical profession and the boundaries of civility, fellow doctors can discuss and argue different positions and viewpoints about certain contentious topics in medicine. In our careers as doctors, we have all seen robust discussions between learned colleagues on many subjects at different fora, ranging from the simple grand ward or morbidity and mortality rounds to international scientific and medical meetings.

Some positions forwarded by some doctors at times can be based on the most flimsy and unmeritorious of assumptions, but these arguments and propositions will be quickly disposed of by the majority of their peers armed with better knowledge and experience.

Unfortunately, this luxury of discernment frequently does not happen when the public is involved, simply because the public lacks the requisite knowledge to discern on highly technical matters.

It is for this reason that medical advertisement is tightly regulated in Singapore. Other than Over-The-Counter (OTC) Drugs, one is NOT allowed to advertise medicines to the public. You will not see advertisements like what you see in USA for example, where one will see many prescription drug advertisements targeted at the public.

However, in Singapore, advertisements involving prescription drugs can be found in materials that are mainly meant for doctors, dentists, pharmacists and nurses. For example, advertisement and marketing materials for prescription drugs can be found in the SMA News or SMJ.

The underlying logic here is that these professionals (and the students being trained for these professions as well) have the capacity to discern the issues therein. Hence the advertising restrictions targeted at these groups can be more relaxed. The piece of legislation called Medicines (Advertisement and Sale) Act reflects this thinking.

Well, it appears that three of the 11 doctors are now having another go at trying to dissuade people from getting vaccinated at mRNA vaccines even when they had said they wanted to “ponder in a more professional and private forum”. There is now another open letter by five doctors (of which three are from the original group of 11 doctors who retracted earlier on) asking the vaccination to be delayed for adolescents, especially males. Again, the experts have come out to debunk their argument which is based again on the most rickety of scientific foundations. Seriously folks, even though one death is too many, you cannot formulate a public health vaccination policy based on one death in which causality to mRNA vaccines is not even established.

The unwanted effects of these two episodes by a few doctors are:
• many members of the public are getting confused
• the vaccination programme is undermined
• experts have to make the effort to repeatedly debunk unmeritorious arguments forwarded by just a few doctors. A waste of their time and purportedly causing insomnia to one of the experts.

It is true that we have imperfect and incomplete information about Covid-19 and the vaccines. But the hard truth is that we still need to make decisions now based on imperfect and incomplete information where the benefits outweigh the risks to a community. And we certainly cannot make or defer making decisions based on theoretical possibilities that are NOT backed up by current data or extensive experience.

If you think about it, these doctors, in the process of publicly lobbying certain positions, are also trying, indirectly or directly, to persuade and advise the public to also believe what they believe – that mRNA vaccines should not be used.

This kind of persuasion can be likened to offering a form of health education or medical advice. Of course health education is part of the service a doctor is expected to give in a professional capacity. But this education must be of a certain quality befitting a doctor, since the public places a certain premium on information offered by doctors.

The Medical Registration Act, Section 53 (1)e states that if a doctor is found by a Disciplinary Tribunal “to have failed to provide professional services of the quality which is reasonable to expect of him” then he can possibly be punished.

To this hobbit these “professional services” would include unsolicited health education and medical advice where there is no pre-existing patient-doctor relationship. Doctors indirectly influencing the public to take or not take vaccines through the public lobbying of authorities to take a certain public health policy direction would also constitute health education and giving of medical advice.

This brings us back to be the principle that both the individual patient and the public need to be protected. We all make mistakes as doctors telling patients wrong things once in a while. But when there are repeated attempts by the same people to forward a position that is neither backed up by current scientific evidence nor an opinion from a respectable body of peers then something needs to be done.

To sum up, everyone is entitled to their opinion as individuals. Every doctor is also entitled to his profession opinion in the course of an academic or professional discussion with his peers; just be prepared to defend the opinion and failing which, understand well in advance that that position may be demolished within the medical community.

But every doctor is NOT entitled to push his professional opinion or position to the patient or the public when the position is not supported by science or a respectable body of peers. That would be unprofessional if not irresponsible.

After all, being licensed to practise medicine doesn’t mean you are licensed to practise quackery as well.

What this hobbit would really want to see is that these doctors (who are trying so hard and repeatedly trying to dissuade people from taking the mRNA vaccines in some way or the other) to meet in a professional forum with a few members of the MOH Expert Committee on Covid-19 Vaccination. The two sides can argue their case in a Zoom meeting and thousands of doctors can login to this meeting to decide for themselves which side has the stronger case. Perhaps the SMA or Academy of Medicine can organise such a forum. Stop this “open letter” business that can potentially muddle the minds of the public; meet up and argue your case out professionally doctor to doctor, based on scientific research and evidence, and let your peers judge you. If you really know your stuff, you should be able to convince a big segment of a learned audience who can then take up your case and promote your cause.

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

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

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

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

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

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

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

Section 53(1) of the MRA is reproduced here

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

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

“Personally speaking, the most helpful information in the Judgment (of the Lim Lian Arn Appeal case) is it makes out clearly how professional misconduct is to be proven (summarised for brevity and not necessarily for high fidelity):

• Establish what is the applicable standard
• Establish whether there is departure from this standard
• Prove whether this departure is serious enough to constitute professional misconduct. With respect to negligence, it must be “serious negligence” and departure from standards must be “serious disregard” or “persistent failure” to meet the standards set out under the ECEG.

The Judges took effort to state that the lawyer for LLA “was mistaken” when he regarded that a breach of a “basic principle” in the ECEG amounted to professional misconduct. They also stated (para. 30 of Judgment) “there must be a threshold that separates relatively minor breaches and failures from the more serious ones that demand disciplinary action. Were it otherwise, doctors would find it impossible to practise in a reasonable way”. Hurray.

The extent and coverage of expert evidence was also elaborated on. The Judgment stated that it was not enough for an expert to merely state what he or she thinks how things should be done. The expert must also present “the underlying evidence and the analytical process by which the conclusion is reached” (para 43) for the expert opinion to hold sway.”

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

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

Para. 39 of the Sentencing Guidelines makes this clear:

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

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

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

The appeal to the Court of Three Judges (C3J) on the psychiatrist Soo Shuenn Chiang (SSC) case had a familiar ring to it. This is evident right from the word go, as delivered by the Chief Justice in The Judgment of the case,

The opening paragraph of the Judgment states,

“For the second time within a short span, this court is faced with a potential miscarriage of justice in a case involving alleged medical misconduct. Once again, the Singapore Medical Council (“the SMC”), which is prosecuting the case, has changed its position from that which it maintained before the Disciplinary Tribunal (“the DT”); once again, the task of the DT was made more difficult by the decision of the respondent, on this occasion, Dr Soo Shuenn Chiang (“Dr Soo”), not to contest the charge or the facts upon which it was based; and once again, the DT failed to carefully consider all the relevant facts and circumstances before it pronounced the respondent guilty. On this occasion, the DT then meted out a sentence that was in excess of both that sought by the SMC and that submitted by Dr Soo. And once again, an outcry from the medical profession sparked a reaction from the SMC”. (emphasis mine in bold and italics)

This hobbit is not a halfling of letters, and with his limited language skills, has to resort to Hokkien to describe what he thinks was the Chief Justice’s mood when he delivered this – in one word – sian. Sian in Hokkien means tired, with more than a tinge of frustration perhaps.

Later on in para. 68 of the Judgment, it was stated, “We make this observation because it seems to us unsatisfactory that reliance has been placed on the medical profession’s propensity to protest loudly over the decisions of disciplinary tribunals and/or courts, with dire warnings of the spectre of defensive medicine, in order to secure in individual cases the result that is desired and/or perceived to be just. The doctor against whom a charge is brought also has a responsibility to look after his own interests. Dr Soo could have contested the case on liability, and subsequently, even after pleading guilty to the Charge, he could have appealed against at least the sentence imposed on him, but he chose to do neither. It is not unreasonable in such circumstances to hold that he ought to lie on the bed that he has chosen to make for himself”.

This hobbit begs to disagree with the learned and wise C3J on the point of a “spectre”. First, it is not a “spectre”, but reality. The consequences of the SMC DT’s judgment (before the C3J’s Judgment) on the Lim Lian Arn (LLA) H&L Case is an increase in both the practice of avoidance defensive medicine and a general rise in price for performing a H&L injection. This is not a spectre, but evidence documented through research and published in a peer-reviewed medical journal. Seventh Month has come and gone and it is now Halloween, but this hobbit hasn’t seen any Ghost of Defensive Medicine yet. If you ask me, it’s more like the Golem of Defensive Medicine, which is very hard to kill once it comes to life.

It is true that a doctor “has a responsibility to look after his own interests”. Unfortunately, “his interests” are also defined according to ‘his’ perspective – which in this case, seems to be Dr SSC wants to plead guilty, pay the fine and move on and get on with his own life. It is his prerogative and perspective, not anyone’s else. Just as we enshrine patient autonomy and patient-centric-ness in promulgating the Modified Montgomery (MM) Test, it should be argued that here, in disciplinary tribunal proceedings, a doctor’s interest has to be defined from a doctor-centric perspective, not public interest-centric or medical profession-centric.

And certainly, arising from such a basis, the doctor has “to lie on the bed that he has chosen to make for himself”. In fact, there is no strong evidence that Dr SSC was unwilling to lie in this bed he made for himself. We shall nominally name this the “SSC bed”.

But what about the other 15,000 or so doctors licensed to practise medicine in Singapore? In our English Common Law system based on legal precedents, it appears that we too have to possibly, if not probably, lie in the same bed, or at least a bed of similar proportions and design, with mattresses, bed sheets and blankets of similar specifications as the SSC bed, when faced with a situation similar to Dr SSC.

That, my friends, is the nub of the problem.

Many of us do not have “the propensity to protest loudly over the decisions of disciplinary tribunals and/or courts” because we felt Dr SSC was dealt unfairly by the DT. Yes, unfairness to Dr SSC is a starting point for dissatisfaction, but the crux of the matter is that the $50,000 fine or $100,000 fine (LLA case) could also apply to me. SSC’s bed can also become my bed. Other than anger, fear is also a very powerful motivator to “protest loudly”.

Legal minds may argue that there is a good chance that Dr SSC’s bed may not fit me when my case is argued in a DT or a court when the SSC legal precedent is tested in real life again. This hobbit always finds this sort of argument rather callous from a doctor’s perspective. After all, which doctor wants to be a “test case” for a legal principle? I would rather be a test case-patient for a new experimental surgery to remove my kidney than a test case in a court.

Therefore, we must assume that the bed made by Dr SSC for himself to lie in, should also apply to some 15000 other doctors as a legal precedent. Is there any other prudent way to look at it?

Even though the appeal from SMC to appeal against itself has succeeded and the case against Dr SSC has been thrown out, many other questions still remain.

Moving forward, the quality of the investigative work of SMC has to questioned. How much can a Complaints Committee (CC) and DT rely on the SMC investigators’ work when they come to their conclusions over a case? In this case, the “facts” were not verified, which led to wrong conclusions being made. As the saying goes- garbage in, garbage out.

Secondly, because the case was thrown out, the issue of sentencing became moot. But it would have been terribly interesting if the C3J had also looked into and commented on how the DT arrived at a fine of $50,000, which was well in excess of what both parties (the SMC lawyers and Dr SSC’s lawyers) asked for.

In other words, there are actually two SSC beds. The first is the bed of pleading guilty and conviction in SSC’s case; this bed had been dismantled and such an outcome therefore made looking at the bed of sentencing unnecessary. But in all probability, most doctors were most uncomfortable lying in the SSC bed of sentencing, not the other bed of pleading guilty.

Finally, a point of secondary importance that could be looked into would be to see if there was any deception or falsehood on the part of the complainant’s brother and husband in firstly asking for the memo from Dr SSC, and secondly in the statutory declaration made by both of them subsequently. If there was deception and falsehood, what further actions could be taken?

All in all, the SSC case has been a very scary incident for many of us, even though many of us didn’t see any ghosts, wraiths or spectres…..

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.

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.