Speeches
SPEECH BY MR EDWIN TONG, SENIOR MINISTER OF STATE, MINISTRY OF LAW & MINISTRY OF HEALTH, AT THE UPDATES ON BEST PRACTICES IN PERIOPERATIVE CARE (UTOPIA) SCIENTIFIC CONGRESS 2019
13 September 2019
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Dr Selan Sayampanathan, Master, Academy of Medicine, Singapore
Dr Giuseppe Caracciolo, Head of Medical Affairs, Menarini Foundation International
Dr Chua Wei Chong, Dr Sophia Chew, Dr Tan Yeh Hong, Dr Nelson Chua, Co-Presidents, UTOPIA Scientific Congress
Distinguished speakers and guests
Ladies and Gentlemen
Thank you for inviting me to speak here today.
The Doctor-Patient Relationship
One of the key challenges in regulating the medical profession today lies in finding the right balance in the relationship between the doctor and his patient. The patient lies at the heart of everything that we do, rightly so; and we must find the right balance and strike the right chord in managing the regulations surrounding the relationship between the patient and doctor. It is also important because the relationship between the doctor and his patient represents the key building block of the entire health ecosystem.
This morning, I would like to focus on an important aspect of that relationship – that of building mutual trust – which I believe to be a core ingredient in that relationship. Why so? As a patient, we must be able to trust that our doctor is doing his best for us, whether in making a diagnosis or in advising on differential options for treatment. There are rules and standards by which a doctor has to discharge his obligations to a certain standard; and there are also rules which require a doctor to act in the best interest of the patient, untainted and unaffected by his own personal or financial motivations. There must be professional and civil sanctions should the standards not be met. That is part of a good functioning regulatory system.
In turn, the doctor has to be able to trust the system. He has to be able to put faith in a system that it will be fair and transparent, and also clear as to what the standards require of him. Otherwise, we run the risk where doctors are uncertain about what they need to do in order to meet the standard, and feel compelled to act in what they regard as their own interest. For example, in an informed consent setting, doctors might be worried about being sued, complained about to the professional body or charged for misconduct. In such situations, the doctor could very well end up giving more information than is otherwise necessary. Some might say, what is the harm behind that because the patient will be getting a lot more from the doctor. But in an environment where the doctor still plays a paternalistic role, in the Asian, and certainly Singaporean society that we live in, I believe that the doctor has the responsibility to not just simply give all the information, relevant to the specific case or not, but to help to manage and curate the information and properly advise the patient. That is the goal, and, ultimately, we can do more harm if we assume that simply giving more information means the patient has more understanding. Paradoxically, it is the complete opposite. Giving more information could lead to less understanding. Ultimately, no one benefits from this kind of defensive medicine because medical costs will go up, and patients do not get the best advice from their doctors.Patient safety will be compromised.
So it is important to have a proper functioning system within the medical profession to regulate its own members and to maintain high standards.
Recent Cases
Recently, confidence of the medical profession over the disciplinary process has been called into question. In fact, that has probably been the case for a while.This has happened against the backdrop of some developments in the medico-legal space.
First, we have moved away from a long-standing Bolam-Bolitho test to look at how informed consent is taken and what kind of advice and risk must be told to patients. The new test stipulates that the court will judge the quality of the consent from the perspective of that particular patient before the doctor at that point of time, and the doctor has to provide information to that patient as that patient might objectively require. The test is a well-meaning test.It is designed to ensure the doctor meets the requests of the patient and addresses the patient’s concern. But there is also uncertainty among doctors as to what precisely should be the information one needs to provide this patient as opposed to the last patient or the next one. Doctors tell us that if the test is framed to consider that specific patient that is currently before him, it might then differ from case to case, and sometimes the line might not be so clear in how exactly it differs.In practice, there is some confusion, and at some townhalls, doctors tell us quite openly that they now practice defensively either in the information they overload the patient with, or through longer and longer consent forms.
Second, overlaying that new legal landscape, in the context of the last couple of years since the change in law, there have also been several prosecutions by the Singapore Medical Council (SMC) which have given rise to concerns. In one recent case, SMC fined a doctor $100,000 for failing to inform a patient about the risks connected to an H&L injection (and there were other cases). $100,000 is not just a significant fine to meet, it is also the highest fine possible under our legislation. Many doctors who give H&L injections regard it as relatively simple and straightforward. Most doctors in fact would associate themselves with what this doctor had done, raising the question as to whether there was even any professional misconduct in the first place.
There is the further point as to whether, even if there was misconduct, the misconduct was so egregious as to attract the highest level of fine possible under our legislation.In addition, there is the precedential value of this case - what does this do further down the road for other doctors finding themselves in a similar situation.Here, we have a doctor carrying out a relatively simple procedure, charged for failing to take informed consent, in a case which was an isolated occasion and where he had no previous antecedent infractions – and he was fined $100,000.Doctors, quite rightly, worry about what will happen in other cases.
So these cases, where doctors were charged for misconduct and the sanctions which were sought by SMC, and those eventually given by the DTs were so strict, gave rise to concerns within the medical community as to how doctors would be judged on their own taking of informed consent.
The third factor I would proffer is the experience which doctors had when they actually had to go through the SMC process itself.
Whether one is ultimately acquitted, found guilty or the charges are dismissed, or the complaints are just found to be baseless and unwarranted, the process is a very long, lengthy one.It sometimes takes upwards of five to six years for the case to resolve. That has its own problems because whether a doctor is found to be guilty or not, there really is no reason to subject the doctor to a process that is emotionally and also, in some cases, financially, draining.If a doctor is ultimately found not guilty of the charge, there would have been a prolonged adverse impact on his practice, reputation and the time spent under a cloud.Some take the view that it might be easier to just plead guilty to the charge and find closure in that way, which is also wrong.Conversely, if a doctor is found guilty of misconduct, that doctor would have continued practice for at least a couple of years pending the resolution.This might have had an adverse impact on patient safety. Neither situation is teneble or acceptable.Other concerns raised include the way fines have been meted out and length of suspensions that have been asked for, and a sense that the SMC sought unreasonably high levels of fines and suspensions.
A confluence of all these factors over the last few years has led to heightened concerns, especially over the process. We are concerned with this.Certainly the Ministry of Health is concerned, and we need to address them. They need to be addressed because they fundamentally undermine what I regard as the key building block of the health ecosystem - which is a patient-doctor relationship and the mutual trust which is reposed in this relationship.
The WorkGroup
The concerns on the ground were very real. Many felt let down by the system. Others felt that the cost of practice would be driven up, certainly the cost of insurance would go up. My Ministry moved quickly early this year and decided, first of all, to make a statement in Parliament to squarely respond to these issues, address the concerns and to set out the steps that the Ministry would take.
The Ministry also appointed a 12-member Workgroup in March this year to look at two fundamental issues. One, how consent-taking should be done, and how a doctor’s taking of consent should be assessed and what additional guidance we can provide to doctors. Secondly, to fundamentally re-look the SMC disciplinary process overall, and to consider root and branch reforms to address the concerns.
In addition, there were a couple of cases at that time which were troubling, including Dr Lim and Dr Soo’s cases. MOH sat down with SMC to ask for these cases to be looked at again and ultimately, SMC decided that they would apply to the Court for them to be reviewed by the court. In at least one of those cases, the SMC decided to also seek a review of the decision to convict the doctor, and to reverse the decision of the Disciplinary Tribunal (DT).
So, SMC proceeded to file an appeal in both cases and there has been one judgment so far in Dr Lim Lian Arn’s case. The other one remains pending.
The Court’s judgment in Dr Lim’s case has been very helpful in reiterating the standards, and recalibrating the position, making clear where the line on professional conduct should lie.It makes clear that not every infraction brings about professional misconduct consequences. The decision is reassuring but at the same time, more can be done, especially in consultation with medical professionals and the relevant stakeholders.
That is precisely the mandate and terms of reference given to this Workgroup – to consult widely, seek views, to be broad and to try to reach a real, true cross-section of the medical profession. Todate, we have had more than 1,000 doctors attend townhalls, offering suggestions and sharing ideas. We have seen doctors from the public and private settings, older and senior doctors as well as the younger ones, and those from group practices and sole practices. I understand that the practice dynamics of each medical practice and the context in which doctors practise would well be different. It is not possible to always take into account every last difference that exists in practice but we will endeavour to take all these into account as we look at what we can do to give greater clarity to doctors.
We understand the issues that doctors have been facing. I think more work can certainly be done and we do want to come to a landing as soon as we can. Some ideas have been suggested, and the Workgroup has worked hard to deliberate them. I will share some of those with you here, but we also need to engage in further consultation with the profession to finetune these proposals, to “market-test” them to see how they can apply in practice, so that we can get alignment between the different types of practices that doctors are engaged in and understand the different challenges that doctors will face.
The thinking behind the reforms
Let me start by sharing some of the thinking which drives the proposals that are being considered now. First, on the question of informed consent. What we need is a clear understanding as to what the standard will be, and how it will be applied in practice. It is trite that no two consultations and no two patients will be similar. Hence we should be looking at a set of rules which helps the profession in practice, applicable as well to the different sub-specialities but at the same time, retain the flexibility to take into account the context in which medicine is practised, and the patient’s individual needs. That is actually the more challenging part. It is easy to come up with set rules and guidelines but how we contextualise and frame it such that tribunals such as the SMC, DTs and the Courts will take into account these nuances, is a little bit more challenging and that is where the consultation and working with the profession comes in.
Some doctors that we have consulted have asked the Workgroup to consider going back to the original test, the Bolam-Bolitho test, which is tried and tested and known, and has been around for decades. That is under consideration by the Workgroup but I should emphasise that any test for how consent is to be taken must take into account the patient’s interest. It must take into account what the patient might have expressly asked and what the doctor should objectively be telling him as information that the patient should know for each procedure. Patient autonomy and choice and what the patient has expressed in the context of the medical consultation will all remain relevant. Patient safety remains the paramount consideration.
Second, we looked very closely at the role of the Ethical Code and Ethical Guidelines (ECEG), and how it is applied in practice. The ECEG comes in several chapters and over the years, it has been revised, amended and added to. The trouble is that, from some doctors’ perspectives, it has become almost like a Code of Conduct, a Penal Code of sorts.I understand the thinking behind the revisions was to try to give clarity but perhaps in trying to do that, one gets bound up in rules which come across as being overly prescriptive and it cuts against the grain of what I said earlier, where we need to take into account the context and nuances in practice. One of the next things that the Workgroup is trying to do, therefore, is to reduce the level of detail and prescription in the Code, to try to have the Code represent the broad principles, or the “bright white line” of ethics and parameters of practice which a doctor cannot cross; and then also have explanatory guidelines to help guide the application.
So, the proposal is for the ECEG to be pared down to several core, irreducible principles, that outline the parameters of practice and our ethical boundaries. It will be binding on all doctors. At the same time, there will be an explanatory guideline or handbook that will contain illustrations and guidance notes that MOH will develop, working closely with the medical community. We will work very closely with all three professional bodies, including the relevant Colleges, the Academy of Medicine Singapore and the different chapters, so that we consult them on relevant risk factors in speciality-specific and situational circumstances that may apply to each case. It will be regularly reviewed over time, because what may be risky or novel today, might not be so in five or ten years. Conversely, with additional information, what might be regarded as relatively straight-forward today could in future have other form of risks involved. MOH will work with these bodies and chapters to come up with the guidelines that will supplement the Code that will allow proper interpretation the Code and give guidance, not just to doctors, but ultimately to the broader profession and ecosystem, like the tribunals or the experts who help to adjudicate these matters.
Collectively, our hope is that this will form a broad eco-system for effective, practical guidance for doctors when it comes to consent taking.Doctors must know where the boundaries of professional practice and ethical obligations lie, and they must also know that there will be sanctions, including serious ones, should these boundaries be broached.At the same time, we must be able to have a system which also gives practical guidance on the day to day consultation with patients, understand the nuances, have regard to what the bright white lines are, but at the same time appreciating the context and differences which each patient and each consultation will present.
Next, let me turn to some suggestions by Workgroup on the disciplinary processes. As a starting point, doctors have always said ‘we must preserve self-regulation’, ‘we must ensure that we keep to self-regulation’. We do not disagree. The medical profession have had the privilege of self-regulation for many years now. We will preserve self-regulation in the rules. However, that one caveat is – none of whatever we propose in the revised rules will be workable if doctors do not step forward to serve.This is because the essence and hallmark of self-regulation is not just in the regulations, but also in the “self”.This means doctors must step up, come forward, lend your services, whether as a member of the committees, as an expert, or member of the tribunal.
What are some of the objectives and characteristics of the system that we want to build? There are several. The first is that the disciplinary system must be able to act expeditiously. For doctors who are a risk to society because of careless conduct or because of persistent misconduct, it makes no sense to have the proceedings kept in abeyance for a couple of years because of the potential harm to society. Conversely, if a doctor is to be acquitted of the charges, it also makes no sense for the doctor to be put through this system and and endure a process for four to six years because there is a strain emotionally, financially and also to the reputation.
So the first thing we must do is to make sure the process can be quick, efficient, expeditious.
Second, we must be outcome-oriented. It means the outcome must, in a common-sensical way, be commensurate with the misconduct. We have a range of options open to SMC and the DT, and they must be able to apply them judiciously.
Third, decisions must be consistent. How we look at one case has an impact on other cases down the road in future cases. That is the hallmark of a clear, consistent and not arbitrary regulatory system. There must be predictability in the system.If not, the price of that unpredictability will get transferred into the healthcare system – the patient will ultimately pay.
Fourth, making sure the sanctions are commensurate, proportional to the offences. One of the things we are now working on, outside of the Workgroup, is for a sentencing committee that looks at past decisions and factors that go into how tribunals decide and where they land on, when there is a range of options.
Finally, there must be complete independence in the process. There must be an unbiased assessment of the doctor’s conduct. The doctor must trust that if he is asked to appear before a DT, the DT will be fair, open and transparent and also knowledgeable about the circumstances of the case and how it is to be assessed.
Some examples of the proposed recommendations
Those are the core features of what the Workgroup’s recommendations seek to achieve.This is done through a series of specific recommendations, aimed at improving the system, its processes and overall, strengthen the core competencies of the SMC.There are a number of recommendations, but in the interest of time, let me just outline a few.
In the last four to five years, the SMC has received an average of about 155 complaints each year. 10 to 15 of the complaints are usually dismissed at the initial first stage, as being unmeritorious. About 10 per cent of the complaints received each year are eventually referred to the DT. This means we have a small number at the DT, a small number that is disposed of at the start, but there remains a big broad middle, and this is where the Complaints Committee will have to go through the cases.
There is room for a more rigorous review, on principled grounds, in the initial first stage assessment of a complaint.Not every infraction or breach of the ECEG necessarily or inevitably gives rise to professional misconduct.Those who review the complaints must be able to recognise this, and be able to filter out cases which, even on undisputed facts, do not pass muster.The H&L case is one example which ought not have even been brought to the DT.
Currently, we already have filters which should sieve out cases that are not meritorious, are vexatious or when a patient has made a complaint that has completely no basis. What we need to do is increase the ability to exercise those filters better, and make better judgment of the cases, and to be able to do it earlier.We intend to put more legal resources upstream, to help in this. We also want to make this process faster, and give assurance to doctors that if the case has completely no merit, you deserve to have a decision in your favour quickly. This allows the doctor to move on, without the spectre or cloud of the unresolved complaint hanging over. We are looking at the timeframe for this.
What about the broad middle, where the majority of cases of about 80 per cent of the complaints are? When we go back and look at the nature of those cases, many of the complaints stem from a misunderstanding between the patient and doctor. Not that we should be necessarily condoning this, but if the complaints do not give rise to professional practice issues, then perhaps there is another more efficient way of resolving them.The Court, in the H&L case, refers to a “range of options” available to the SMC to handle cases.I agree that this should be better looked into.
We believe that in many of these cases, the mediation process would be a good way of resolving these cases. We should therefore encourage and give a lot more leeway to refer these cases to mediation upfront and early, so that these differences can be ironed out before they quickly escalate to be more hostile. We will work with institutions like the Singapore Mediation Centre to provide expertise and the infrastructural settings to achieve better outcomes through the use of expert mediation. One word of caution, thought.Not every case can go through mediation because complaints which demonstrate clear, egregious, serious or persistent misconduct or where there is dishonesty and lack of integrity, those should not make its way to mediation because public interest requires SMC to be acting on these cases.
So, we will have a broader spectrum of cases that are relevant and appropriate for mediation, and this will help to ease the broad middle case load for the Complaints Committee.
Second, we need better resourcing to handle the complaints, not just expeditiously but also judiciously. We need a better way in which we can quickly triage the complaints so that there is an idea as to whether this is a complaint that needs further intervention and more investigation or whether it can be resolved on the face of the complaint itself. The Workgroup has recommended and proposed for there to be better resources put upstream, to provide a dedicated legal unit to put doctors through training, and supported by legal services.
Third, in our townhalls, doctors have told us that it is not right that the SMC is the prosecutor, and is also the DT. That comment, however, is not correct. The DT is separate from the SMC prosecution, and conducts itself separately from the prosecution. SMC’s counsel also function separately from the DT. However, the fact that this mis-perception continues is itself troubling.Sometimes the optics of a situation can be equally important, and the impression that the DT sits and operates out of SMC and is affiliated or associated with SMC is not a healthy one.
One of the suggestions that is being considered is to set up a completely independent Disciplinary Commission, one that will be run on its own, with its own full time staff who are separately resourced and will sit independently from the SMC. It will have the responsibility of looking after and discharging the role of the tribunals, look after the co-opting of doctors onto its panels and be responsible for continually upgrading and training of the DT, CC and IC members.The aim will be for the Disciplinary Commission to increase the professionalism of the process, train those who sit in judgment of other doctors, be responsible for continuing medical education in medico-legal issues.And of course, completely independent from the functions of SMC as a prosecutor of cases.
We intend to also set up SMC prosecutors so that they will sit in-house, within SMC. Over time, we hope to build up a wealth of experience that will reside within SMC. They will have prosecutorial experience and ensure that cases are not only handled quickly, but also fairly and importantly, as well as consistently so that no two cases that are similar will be dealt with differently. We also have to find a way, as far as possible, to remove the adversarial nature of the inquiry when two experts join issues on a question because ultimately the role of the experts is to objectively help the DT reach the right result.
We are also looking at how we can train people better, not just those who serve in the DT, CC or other tribunals, but also to require, as part of continuing medical education, training of doctors on medico-legal standards.I think this is important and sends a clear signal to the profession that we mean business when we say the medical profession will self-regulate, that we are qualified to do so, and so this is also a significant part of strengthening the patient-doctor relationship.
What I have outlined above is a broad swathe of the proposals. The Workgroup has many other ideas that are being considered, some are still being cooked and others are being discussed and refined with stakeholders. The details will be announced by the Workgroup in due course.
Conclusion
Let me end by going back to trust in the healthcare ecosystem. It is important and fundamental. If we get this wrong and there is no trust between the patient and doctor in the system, we are not going to be able to assure Singaporeans of patient safety in a first class healthcare system. In this regard, the Workgroup’s efforts are critical and I want to thank them for their hard work.They have spent a lot of time meeting doctors, studying proposals and recommendations, comparing our system with those from other countries, and, overall, looking at what would work best for our system. The recommendations will be broad, but as I said earlier, self-regulation will not be feasible if doctors don’t step forward. Hence, when the Workgroup’s work ends, that is when the work for the entire medical profession will begin, to make the system work and to put forward the resources to be able to make the reforms work. It will take some time for these proposals to work in practice, and to be able to overhaul the current system, but, we are confident that, working with the medical profession, we will get there.
On that note, I want to assure doctors that the concerns and issues which have been raised have not fallen on deaf ears.They will be addressed. We will do it as quickly as we can but we also want to make sure that the reforms that we accept from the Workgroup are not just good but that they will remain sustainable in practice and in the long-term.We must build a system that is not just relevant today but one that doctors and patients will know and trust for years to come.
Thank you.