Protecting Patients' Interests and Supporting the Medical Community

Mr Speaker, thank you for allowing me to speak to make a Statement on Protecting Patients' Interests and Supporting the Medical Community.

Sir, both the medical community and the public have raised serious concerns regarding two recent decisions of the Singapore Medical Council (SMC)'s Disciplinary Tribunals (DT), as well as a decision of the Court of Appeal in a civil suit against Changi General Hospital (CGH). Members have asked various questions on these cases, which I will address in this Statement.

Let me briefly outline these cases. The first decision was in respect of an orthopaedic surgeon, Dr Lim Lian Arn, who was alleged to have failed to obtain informed consent from his patient before performing a procedure, and was fined $100,000, the maximum fine permitted under the Medical Registration Act. SMC has taken steps to appeal the DT's decision. The Court will review this case and evaluate the decision of the DT including the appropriateness of the fine.

The second decision concerned a psychiatrist, Dr Soo Shuenn Chiang, who was alleged to have failed to take appropriate steps to verify the identity of his patient's family member before releasing a memorandum containing her sensitive medical information to the family member. He was fined $50,000. SMC has taken steps to pursue an appeal against the DT's decision in this case as well. On appeal, the Court will review the surrounding facts including the circumstances in which the memorandum was procured and obtained by a family member.

As both these cases are still before the Courts, I shall refrain from referring to them in detail. It will however be clear to Members that MOH is also deeply concerned with the decisions in both cases. MOH has asked SMC to consider an appeal and SMC has done so. The two DT decisions, as well as the uncertainty surrounding the current law on doctors' obligations, risk undermining the confidence of both the public and the medical profession. We must, and will, deal with the issues that have arisen to restore and ensure confidence.

The Court of Appeal’s decision in the civil suit concerned a case of negligence against CGH for delaying the diagnosis of a patient’s cancer. I am saddened to learn that the patient Ms Noor Azlin Abdul Rahman has just passed away this morning. Let me offer my deepest condolences to the family. My thoughts are with them. The hospital will extend our support to the family. The Court of Appeal's decision has been interpreted by the medical profession to mean that, in the majority of cases, radiologists are well placed to decide which specialist or hospital department should follow up on a radiological report with an adverse finding. This is different from the current general practice, which is to return the radiological and test reports to the doctor and team who had seen the patient, ordered the investigations and had the continuing obligation to care for the patient.

Radiologists are understandably worried that they do not have the same care relationship with patients and are not in a position to decide which department or specialist is most appropriate for the continuing care of the patient. Our lawyers have told us that the medical profession may not have interpreted the Court of Appeal's decision correctly. Nevertheless, we must deal with the medical profession’s concerns and clarify the position.

Four specific concerns arise from these cases: one, what constitutes proper informed consent; two, whether radiological reports with adverse findings should be returned to the doctors or teams who had ordered them, or should they be routed to another specialist department for follow-up; three, whether the convictions and sentences are fair and reasonable, and reflect practice realities on the ground; and four, how to remedy the weaknesses of the SMC DT disciplinary process.

We share all of these concerns. My Ministry will address them decisively, while always putting patient safety and welfare first. We have to act decisively because these concerns, if unresolved, will, over time, engender the practice of defensive medicine. This will not only affect doctors, but ultimately compromise the quality of medical care, raising medical costs and harming patient welfare. I will set out a broad overview of these issues and then outline the initiatives to address them.

Let me first briefly describe the current SMC disciplinary process. The SMC is a Statutory Board and a self-regulating body, made up of both elected and appointed medical professionals. Its primary objective is to protect the welfare and safety of patients by regulating the professional and ethical practice of registered medical practitioners and by upholding high standards in the medical profession.

When a patient makes a complaint, a Complaints Committee (CC), drawn from a panel of 100 senior doctors and 50 laypersons, reviews the complaint and decides on the appropriate further actions. When needed, the SMC will appoint a DT to hear the case. Both CCs and DTs are made up predominantly of doctors, aided by specialists who provide expert opinions, as well as legal professionals and laypersons, as appropriate. The SMC Council members do not sit on the DT, so that the DT can act independently of the SMC. Annually, the SMC receives an average of 170 complaints. Most are resolved at the CC stage with about 8% being referred to DTs.

This system is built on self-regulation. As professionals, doctors have to make care decisions in the best interests of their patients. More often than not, they have to rely on their professional judgement. Therefore, what is appropriate in each case is determined by their peers, taking into account what is acceptable practice.

It is important to maintain the confidence of both the doctors and the public in this system. Both must have full confidence in the transparency and fairness of the process and outcomes. However, the recent cases which I described earlier have cast doubts on this. We have to address these concerns directly, make the necessary changes and give appropriate guidance so that there is greater clarity and consistency.

I will now outline some of the main problems which have arisen in the operation of the current system. First, serious delays in the disciplinary process. Delays are unfair to the complainant who would be looking for closure. It is also unfair to the doctor, as it may prejudice the doctor's defence, affect his practice and livelihood, and cause unnecessary anxiety. It currently takes too long for a case to be heard. It takes up to two years and occasionally longer for the CC to reach a conclusion; and if a DT is convened, up to another two years to conclude the case, and occasionally even longer. If there is an appeal by either party to the Court of Three Judges, further time will be taken up. Whilst SMC has been making efforts to clear cases faster, the overall process generally takes too long and some cases experience prolonged delays that are egregious and wholly unacceptable.

Second, the SMC has faced challenges in engaging doctors to serve on the Complaints and Disciplinary Committees, or as experts. This is partly due to the small community of senior practitioners and partly due to the difficulty in securing the commitment of experienced practitioners to serve, because of the heavy time commitment and opportunity cost incurred. I am most grateful to the doctors who have served on our CCs and DTs. We will have to improve and strengthen the system to better support them as they carry out their duties.

Third, despite the guidance in SMC's Ethical Code and Ethical Guidelines (ECEG), there is wide variance in interpreting standards of care. Whilst the Guidelines cannot cater for all scenarios, we need greater clarity on the application of the standards in specific situations, such as the communication of medical information to patients’ family members and the taking of informed consent.

Fourth, there is the issue of consistency and fairness of sentences meted out. Some sentences are not commensurate with the circumstances of the case. Despite their best efforts, some DTs are too lax, whilst others are too draconian and the SMC has had to appeal to the Court against the sentences meted out in these cases. The two recent DT cases, for instance, involve unexpectedly high fines. But there have also been cases where DTs imposed sentences that were too low, and the SMC has had to appeal to the High Court to increase these sentences.

My Ministry will review the SMC disciplinary process. We have to do a thorough review of the existing structure and process, and consider what is the best way in which complaints against doctors should be dealt with, which will minimise the current problems. We must seek to achieve clearer and more consistent outcomes faster, and which both the public and the medical community will have confidence in.

I have appointed a workgroup comprising doctors, legal professionals and other persons with relevant expertise to completely review the SMC's complaints and disciplinary processes. The workgroup is co-led by Associate Professor Ng Wai Hoe, Medical Director of National Neuroscience Institute and Deputy Chairman Medical Board at SingHealth, and Ms Kuah Boon Theng, a Senior Counsel, who specialises in medico-legal cases.

The workgroup has a broad mandate to review the entire process and make recommendations to my Ministry. They will consult widely. A series of engagement sessions have already been planned. The first few town-halls were conducted last week with SingHealth on Thursday and Gleneagles on Friday, and another session is planned with NUHS this week. These consultations will continue as we want to canvass as many views as possible. The workgroup’s recommendations are expected by the end of the year.

In addition to the workgroup, MOH had also set up a Sentencing Guidelines committee to set out principles and guidance for sentences, to ensure greater consistency and fairness in the sentences meted out by the DTs. This committee has started its work and is expected to also report by the end of the year.

Let me now address the issue of informed consent. This is the process by which doctors provide patients with relevant and material information about the recommended course of treatment, potential risks of the treatment and possible alternatives, to enable the patient to make an informed decision with regard to his care options. The law on informed consent has, for a long time, been based on the well-known Bolam test, which has been consistently affirmed in Singapore, including by the Court of Appeal in the case of Gunapathy in 2002. This landmark decision set out the standard clearly. Over the years, the test was clear and well understood by the medical profession.

In 2017, the Court of Appeal departed from its earlier decision of Gunapathy and applied a modified version of the test formulated in the UK case in Montgomery versus Lanarkshire Health Board. The Court has ruled that a doctor, in taking proper informed consent, has to provide such information as that particular patient objectively requires.

The feedback from the medical profession is that doctors are not sure as to how to apply the new legal test in practice settings. There is uncertainty and concern among doctors as to exactly what information would be considered to be relevant and material from the patient's perspective, and when and how consent needs to be taken. The recent case where Dr Lim Lian Arn was fined $100,000 for failing to take informed consent for a procedure has brought this issue to the fore.

In the current climate of uncertainty, there is a real risk that medical practitioners will adopt defensive medicine. There is evidence that this is already happening. Fearing that they might be called out should a complication occur, doctors are likely to overwhelm patients with voluminous information on multiple unlikely risks, protecting themselves legally but confusing patients. This would be highly detrimental to Singapore's healthcare system and will damage the trust between doctors and their patients. We should guard against turning into the kind of society where doctors care more about not being sued or disciplined by the professional body than about the patients' well-being. This is a well-travelled road elsewhere with very predictable consequences. The US is a prime example of a healthcare system where large sums are awarded for medical negligence, a significant fraction of healthcare costs goes towards medical indemnity insurance, and patients and society as a whole end up bearing these costs.

We will address this and provide clarity and guidance in two ways. First, the workgroup that is reviewing the SMC Disciplinary Processes will also review and study the legal and practical applications of taking informed consent. They will evaluate the local practice in different settings as well as study the practices in other jurisdictions. The workgroup will also consult widely on this and seek views from the medical community as well as the public. It will make recommendations to the Government on every aspect of informed consent and give guidance to the medical profession on what, where and how in taking informed consent. The intent is to address the needs of the patients while providing the medical community with clear practical guidelines so that doctors do not have to second guess what is needed in each case. It will also consider whether legislation will be necessary in order to achieve these objectives and to set out the test to be applied.

We should, however, remember that the relationship between the doctor and patient is not only unique in each case, but also dynamic. It will evolve over time, and change with each diagnosis and advice given. It is therefore not possible nor desirable to be overly prescriptive in such guidance. There must always be sufficient flexibility in any test or guidance which we formulate, so that, ultimately, patient interests are best served. Doctors know that patient welfare must be paramount.

Second, to provide additional practice guidance to the community, MOH intends to issue legally binding clinical practice guidance in specific areas. We aim to give healthcare professionals more certainty on aligning their practices with the rest of the healthcare community and on discharging their ethical and legal obligations to their patients. For example, on the issue of informed consent, the guidance would explain what nature of information would be considered to be relevant and material to patients.

Such guidance will not be confined to the issue of informed consent. For example, guidance can also be issued on how healthcare institutions and professionals should handle requests for assistance from patients’ next-of-kin and, in particular, verify the identities of the next-of-kin, a question raised by Dr Chia and Dr Lim. The approach will be balanced, protecting patients' interests and welfare, yet being fair to doctors. There should also be consideration for practical issues such as what to do in emergency situations. MOH will engage the medical community and public before issuing the guidance.

Sir, as I said earlier, the Court of Appeal has also made some suggestions in the civil suit against CGH on the responsibilities of radiologists and institutions. The Court of Appeal’s central concern in that case was to ensure that radiological reports with adverse findings are followed up with appropriate speed and care. This ensures patients’ safety, and we agree entirely with that. The question, however, is how best to achieve this.

Arising from that decision, healthcare professionals and institutions have told us that they need clarity on the level of responsibility that radiologists bear. They also need clarity as to whether radiological reports with adverse findings should be returned to the doctors or teams who had ordered them, or should they be routed to another specialist department for follow-up. The position hitherto has been that radiologists are not expected to bear any primary care responsibility when there are adverse reports, and that such reports should be routed back to the doctor(s) who ordered the tests. That has worked well for us, and my Ministry believes that this is probably the best approach.

We will consider the position carefully. My Ministry will also study the existing legislation, with a view to setting out in legislation what should be the legal and ethical responsibilities of the doctors involved and the institutions, and how reports with adverse findings should be routed. That should give greater clarity to the community.

Sir, to conclude, the medical community that we wish to have is built on the mutual trust and respect of the patients and the public. Doctors are expected to uphold the highest possible standards of professional and safe medical practice where patients' interests is always at the core. Patients must trust their doctors and be able to rely on them to look after their interests and well-being. Our doctors in turn need to be able to practise in an environment where they have clear guidance, and are not burdened with the uncertainties and vagaries of unwarranted sanctions or litigation. We have quite a lot of work to do to achieve this, but we are confident that we can do so.  We will work through the initiatives described earlier to build a better healthcare system for all.