MPs debate new statutory test for informed medical consent, changes to medical disciplinary process

SINGAPORE: A new statutory test for the provision of medical advice and changes to strengthen the medical disciplinary process was established today after the Civil Law (Amendment) and Medical Registration (Amendment) Bills were passed on Tuesday (Oct 6). 

Speaking in Parliament, Second Minister for Law Edwin Tong noted that following some well-publicised medical cases from the Singapore Medical Council’s (SMC) disciplinary tribunals, the “relationships of trust” in the healthcare system “have been called into question”. 

“In the wake of these cases, there was significant disquiet within the medical fraternity. Many doctors grew uncertain as to what might be required of them when they saw a patient, advised a patient, took informed consent. They had also serious concerns as to whether the rigour of the SMC system was sufficient to see through the cases to get a clear, consistent and certain outcome,” he added. 

This comes after the Ministry of Health (MOH) accepted the appointed workgroup’s 28 recommendations in December 2019. 

READ: Frivolous complaints to Singapore Medical Council should come with costs, workgroup recommends

Singapore is already seeing the negative effects of this “uncertainty and worry” in the medical profession, said Mr Tong. 

The workgroup, which was formed in March 2019, found that doctors were spending less time on patient-focused information, and were instead providing information “in a manner that they themselves judged would best absolve themselves of liability should the patient complain”, he added. 

“The Court has, on numerous occasions, said that a doctor does not discharge his obligation to the patient by simply giving information without really trying to solicit understanding,” said Mr Tong. 

“That’s not the way to take informed consent, but yet we’ve seen numerous accounts of this take place.” 

NEW STATUTORY TEST FOR INFORMED CONSENT

The new test will require healthcare professionals to give their patients the information they need to make an informed decision. For example, any information that a patient specifically asks for must be provided, added the Second Minister for Law. 

“The patient can be assured that when he walks into a clinic and sees a doctor there really are no stupid questions. Every question that this patient raises with this doctor is a valid relevant question that has to be addressed,” said Mr Tong. 

This is also irrespective of whether some other patient might have wanted it or some other patient might have regarded it as material or otherwise, said Mr Tong.

“This gives primacy to what might be of concern to the patient at hand, the patient in front of the doctor, recognising that no two patients and no two consultations are identical.”

The doctor must also provide information that “ought to be apparent” from the patient’s medical records, even if the patient does not expressly communicate a specific concern or query about it, added Mr Tong. 

“This is not intended to impose an obligation on healthcare professionals to review and go back into reviewing substantial volumes of medical records ... in order to try and work out or ferret out what are the concerns of queries that the patient might have," he said.

That’s not the intention, and clearly that’s also not provided for in the statute. It is also not practical or feasible in practice.” 

The test will also “uphold the principle of self-regulation” in the medical profession, said the minister. 

A healthcare professional will meet the standards if he acts in a manner accepted by a body of the healthcare professional’s peers as reasonable professional practice in the circumstances, said MOH in a separate press release. 

“A doctor can therefore be assured that his conduct in providing medical advice to the patient will be assessed by his fellow doctors,” said the ministry.

If there are the different peer professional opinions held by other respected healthcare professionals, each of these opinions can still be used, “provided it satisfies the test of logic”, said Mr Tong. 

“This recognises that there may be a diversity of views among healthcare professionals, all of which are, in principle, equally valid for consideration but of course for each of them to be logical they have to cohere with the standards and pass the test of logic and reasonableness,” he added. 
 
CHANGES TO MEDICAL DISCIPLINARY PROCESS

The changes to the medical disciplinary process target four areas - improve the quality and consistency of processes, reduce delays and facilitate faster resolution of complaints, protect patients more effectively, and encourage the amicable resolution of complaints, said Mr Tong. 

READ: ‘Miscarriage of justice’: High Court sets aside SMC conviction, S$100,000 fine against surgeon

An independent disciplinary commission, which will be independent and separate from the SMC, will be appointed. 

“It will be responsible for constituting the disciplinary tribunals in each of the cases …This addresses concerns about the independence of the disciplinary tribunals from the SMC. Currently the disciplinary tribunal is independent of the SMC, which also acts on behalf of the complainants as the prosecutor,” said Mr Tong. 

“However, there’s a continuing perception of a lack of independence simply because the SMC appoints the disciplinary tribunal and also has a prosecution arm looking after the complaints of the complainant and framing the charges against the doctor.” 

Under the new amendments, each disciplinary tribunal will comprise two doctors and one legal professional, said Mr Tong. Previously, it was not compulsory for a legal professional to sit in the tribunals. 

“But our view is that having an experienced legal professional on the disciplinary tribunals will bring greater legal and forensic expertise to the disciplinary tribunal’s deliberations and determination,” he added. 

In some cases that are more complex or novel, the president of the disciplinary commission can apply to the Chief Justice for permission for a judge or judicial commissioner of the Supreme Court to chair the disciplinary tribunal, Mr Tong noted. 

READ: MOH to review the taking of informed consent by doctors, SMC's disciplinary process

The SMC will also establish a legal advisory and prosecution unit, said the Second Minister for Law. 

“The advisory arm of this unit will advise the disciplinary committees in their disciplinary framework and ensure that they have access to the legal support that they require to perform their functions. And this in turns facilitates clarity on the applicable standards, how the charges might be preferred, what kind of legal standards will apply and so on.”

The prosecution arm of the new unit will undertake prosecutions for the SMC, he added. 

According to the workgroup, some doctors were concerned that the use of private law firms for prosecution “may sometimes result in a I-must-get-a-conviction-at-all-costs” approach, said Mr Tong.

“That’s not the case, but it’s also not healthy that there is that impression," he said.

A dedicated in-house prosecution team within the SMC would help the council to “strengthen its own capabilities”, he added. 

“It will aggregate the cases, it will build up experience to be able to handle prosecutions, and to have residing within the SMC institutional knowledge and the collective wisdom of what it will take to prosecute these cases,” said Mr Tong. 

“This itself will lend to consistency across the spectrum as to how a charge might be framed and the factors to be taken into account in mitigation or aggravation as the case may be.” 

SHORTENING THE COMPLAINT RESOLUTION PROCESS

Addressing the common complaint that the time taken between when a complaint is made and when it is resolved is too long, Mr Tong noted that if the doctor is ultimately found not liable, the case is “a real strain” on the doctor. 

“In the case where the patient is successful and the doctor is found liable for professional misconduct, then the question will be, why is it that for the last six, seven years, this doctor has been practising and what has been done to protect the patient’s interests?” he added. 

Among the changes introduced to reduce the time taken for the resolution of complaints, a new Inquiry Committee will be formed to filter out complaints that are frivolous, vexatious, misconceived or lacking in substance at an early stage, said MOH in the press release. 

The Inquiry Committee and Complaints Committee can make cost orders against a complainant where the complaint is dismissed because it is frivolous, vexatious, misconceived or lacking in substance. 

A time-bar will also be introduced for the filing of complaints. Complaints that are submitted more than six years from the date of the conduct in question, or from the earliest date the complainant could have discovered it, will not be referred to the complaints panel unless the president of the disciplinary commission assesses that it is in the public interest to do so, said the Health Ministry.

To protect patients more effectively, interim orders can now be made immediately. Currently, the Interim Orders Committee must convene a hearing before making an interim order, even where there may be imminent danger to patient health and safety, said MOH. 

The Committee can now issue an immediate interim order without a hearing if any conduct alleged in a complaint poses imminent danger to the health or safety of any patient of the doctor involved, it added. 

READ: Patients’ complaints to SMC against doctors could be resolved within 18 months

COMMUNICATION ISSUES BETWEEN PATIENT AND DOCTOR

Debating the amendments, MPs highlighted that even with the new statutory test in place, communication issues could still arise between doctors and patients.

Doctors need to strike a balance between information overload and providing too little information, said People’s Action Party (PAP) Member of Parliament Lim Wee Kiak, who is a member of the medical profession.

“With all due respect to all our patients, they’re all different. Some may not understand the choices before them, especially where choices are scientifically complex,” he said, adding that too much information would only add to the “emotional burden” of patients, “causing alarm and confusion unnecessarily”.

Language barriers also pose “one of the greatest challenges” to healthcare practitioners working with seniors and foreign patients, added Mr Lim.

With the shortage of resources for interpreting in a “small clinical set-up” and the complexity of medical terms, he sought clarification on doctors’ and interpreters’ liability in the case of complications resulting from a lack of informed consent.

READ: High Court overturns conviction of doctor fined S$50,000 for giving out patient’s details

With such a dilemma, PAP MP Yip Hon Weng suggested drawing up guidelines for doctors to obtain informed consent, especially in situations with language barriers. This is particularly so for elderly patients, he added.

As such, he proposed that having one person on duty in every clinic who can speak the different dialects and local language with “a certain level of competency”.

“This person must be able to facilitate the flow of information between the doctors and patients who can understand only dialects or local languages. When complex terms are delivered in one’s own language, it can reduce the unease the patient may face at a doctor’s consult. It also helps to improve the doctor-patient relationship,” he said.

And with the rapid changes in medicine, such as telemedicine and artificial intelligence-assisted medicine, the Government should review the issue of informed consent more frequently, said Workers’ Party (WP) chief and Leader of the Opposition Pritam Singh.

“More fundamentally, regular reviews will be consistent with the evolution of medical care in Singapore, where individual rights and patient autonomy continue to move center stage, and reflect the current and future realities of medical practice," said Mr Singh.

SMC’S ADDITIONAL COSTS

With both Bills, the SMC created new legal entities, a dedicated secretariat and a few more committees, said PAP MP for West Coast GRC Ang Wei Neng.

All these would lead to higher costs, he said, suggesting that doctors pay another S$300 in annual fees to the SMC. While S$300 per year may be a small proportion of a doctor’s annual income, it would contribute S$3.4 million per year to the SMC. he added. 

WP’s Leon Perera asked if the SMC would continue using commercial law firms as its prosecuting counsel, which “may be unsustainable” due to “skyrocketing” legal costs, “sometimes at the expense of fair judgments”.

He also asked if the creation of SMC's new in-house legal unit, which he said Mr Tong alluded to, would handle all legal work.

This is because “legal costs borne by the SMC have been known to be high”, he said, as commercial law firms “appear to have an attitude of securing convictions at all costs”, even at the expenses of disregarding the Ethical Code and Ethical Guidelines and the previous Court of Three Judges in some cases.

This may result in doctors having to contribute more money to the SMC and medical indemnity insurance, leading to “rising healthcare costs borne by consumers”.

“It is unclear if having in-house counsel would help to save on legal costs, compared to outsourcing. That begs the question of whether the SMC has done the cost-benefit analysis of having an in-house legal unit versus continued reliance on outsourcing to commercial law firms,” he said, and urged the Government and the SMC to look into this.

In response, Mr Tong said MOH will not pass on these costs to patients and “as far as possible” not to doctors, adding that the idea is to be cost neutral. 

“Because we believe that this is in the public interest. It’s a system meant really to safeguard patient welfare, public interest and public confidence in the system,” he said. 

This is also why MOH decided against instituting a fee for each complaint made, he added.

“Instead we decided that we would empower the complaints committees and the disciplinary tribunals to grant cost in the appropriate cases," he said.

MANPOWER CONSTRAINTS

MPs also noted that with manpower constraints in hospitals and clinics, the additional requirements for informed consent could put an added strain on already-busy doctors. 

PAP MP for Jurong GRC Tan Wu Meng, who is also a practicing doctor, asked if studies on the time needed to “adequately advise” the average patient on a particular topic were conducted. 

“How does this time compare with the average time slot provided for a patient consultation? How often do healthcare workers have to go the extra mile by finding time and doing these communications outside of official clinic working hours?” he said.

“This data is fundamental for the planning of manpower, clinic timings, clinic sizes. Both for today and for future hospitals, and especially in busy practice settings such as our public sector hospitals.” 

READ: Patients may face time limit to file complaints on misconduct of doctors: MOH

According to feedback from doctors to the workgroup, consent taking may not be possible in every setting, especially in polyclinics, WP’s Mr Singh noted. 

Quoting the workgroup’s report, he said: “Doctors may be burdened with other onerous administrative duties and have heavy case loads. They are simply not afforded enough time to build a relationship with the patient.” 

Adding that the new statutory test “does not seem to solve this issue” raised in the feedback, Mr Singh noted it may still be very difficult for doctors to take consent thoroughly in a polyclinic setting, for example. 

“My understanding is as there are potentially a large number of patients, each outpatient consultation is ordinarily scheduled for around roughly 10 minutes. In that time, the doctor has to gather the patient's history, examine him or her, discuss treatment options and refer the matter to specialists or as appropriate,” he said. 

On top of this, the doctor now has to comply with the requirements set out in the statutory test - answering patients’ questions and reviewing the patient’s medical records will take up more time, he added. 

PAP MP for Nee Soon GRC Louis Ng noted that the current doctor-patient ratio in Singapore is 2.3 doctors for every 1,000 patients, comparing this to the UK average of 2.8 doctors and the OECD average of 3.5 doctors. 

“I understand some doctors fear that what is ‘reasonable’ to the court may in fact, be humanly impossible to achieve. They may also fear that such expectations can lead to further burnout among doctors.

“If the calibration is not done well, they may tilt the balance towards doctors practising defensive medicine while simultaneously managing consultation times,” Mr Ng added, asking if additional support would be offered to doctors to allow them to meet the enhanced standards of informed consent and whether the doctor-patient ratios and consultation times in public hospitals would be increased. 

READ: Doctors do not need to inform patients of every possible side effect: Lam Pin Min

Responding to the concerns, Mr Tong said that the implications of the new statutory test in a setting like the polyclinics were “a fair concern”. 

“We need to frame a test now which best promotes the doctor-patient relationship, gives that relationship the best chance of having a good interactive discourse that promotes the best outcomes. And that has to be the starting point,” he added. 

Citing the polyclinic caseload over the years, Mr Tong also noted that the numbers “have been relatively steady” in the past three to five years. “In fact, if anything, you take that back 10, 15 years, the numbers actually have come down.”

While there may be an increase in workload, that “should not drive the way we define or formulate this test”, said the minister. 

“We may have to find ways to work around it, to put better resources in public hospitals or polyclinics, but as in designing the Civil Law Act test, I think we must and perhaps only focus on what is good for the patient and doctor in that relationship.”