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Let's be fair to doctors who make honest mistakes

Let's be fair to doctors who make honest mistakes

Source: Straits Times
Date Published: 13 Mar 2019
Author: Wong Chiang Yin

Assessing doctors' wrongdoing requires balancing different principles.

Hot on the heels of the controversial Lim Lian Arn case in which an orthopaedic surgeon was fined $100,000 for not getting informed consent for a common injection, comes the Soo Shuenn Chiang case, in which Dr Soo, a psychiatrist, was fined $50,000 for breach of medical confidentiality for disclosing medical information to someone impersonating the patient's husband.

Both cases have created a furore of hitherto unseen intensity and scale within the local medical profession.

The first case involving Dr Lim generated a petition that was signed by some 6,400 doctors over a few weeks. In the space of two days, a petition on Dr Soo's case has garnered close to 8,400 supporters.

Both cases came under the Singapore Medical Council (SMC) Disciplinary Tribunal (DT). The SMC is a self-regulatory statutory body for registered medical practitioners in Singapore. When there is a disciplinary hearing on doctors, the SMC appoints members to a DT to hear the case. DT members may vary from case to case.

The DT typically consists of two senior doctors and one legally-trained person, usually a legal service officer. The SMC also appoints a lawyer to prosecute the defendant doctor on behalf of the complainant. So, in a DT trial, there are three parties present: the defendant doctor, the SMC lawyer acting on behalf of the complainant, and the three-member DT, who act as "judges" of sorts, who pronounce judgment on whether the doctor is guilty of professional misconduct or not. The DT also decides on the penalty. Its decision is binding, but appeals can be made to a Court of Three Judges (commonly known as "C3J").

The Ministry of Health has asked the SMC to apply to the High Court for a review of the DT's judgment on Dr Lim's case and is "looking into" the SMC decision on Dr Soo's case.

The current Dr Soo case involved a patient's brother who had rung the doctor pretending to be her husband. He asked for a memo from Dr Soo so that the patient could be sent to the Institute of Mental Health (IMH) to be assessed for suicide risk. The patient had a history of psychiatric problems, including depression, alcohol misuse, and a risk of self-harm.

Dr Soo did not verify the identity of the caller, and wrote a memo addressed to "Ambulance staff/Police in charge" which was passed to the caller.

The imposter subsequently used the memo to get a Personal Protection Order (PPO) against the patient. He succeeded although it could not be ascertained that the memo written by the doctor caused the PPO to be issued. The memo contained sensitive medical information of the patient.

The crux of the issue, according to the DT, is that Dr Soo failed to verify the identity of the requester of the memo as to be truly that of the patient's husband; and he failed to ascertain that the confidential information in the memo was not accessible to unauthorised persons.

The SMC lawyers said that a patient's confidentiality is sacrosanct and that the doctor should be punished because he was guilty of professional misconduct. They asked for the doctor to be fined $20,000. Dr Soo pleaded guilty and asked for a fine of $5,000 instead.

The DT instead imposed a $50,000 fine on Dr Soo, an amount far in excess of what both teams of lawyers asked for.

In determining the sentence, the DT took guidance from a recent case involving a doctor who was struck off for causing the death of a patient while performing liposuction, even though lawyers from both sides - Dr Soo's and the SMC's - had said this earlier case did not apply to the case at hand.

BALANCING THE RIGHT TO AUTONOMY

How might one begin to analyse this case?

There is no doubt that a breach of confidentiality had happened and the doctor was responsible. But one cannot look just at the issue of confidentiality in isolation and neglect other important factors at play in this particular case.

When we analyse the medical ethics of a case, the most commonly known approach is the "Four Principle" approach developed by American philosophers Thomas Beauchamp and James Childress, whose 1985 book Principles Of Biomedical Ethics is a classic text for the subject is the approach and most commonly taught in the anglophone world.

The four fundamental principles of medical ethics are: non-maleficence or doing no harm; beneficence which is to do good, or act in the best interest of the patient; social justice which concerns the distribution of scarce resources to achieve the greatest societal good; and autonomy which refers to the patient's right to accept or refuse consent, his right to privacy and confidentiality and his right of self-determination.

The principle of autonomy covers issues such as informed consent and breach of confidentiality. But autonomy in itself is not an absolute right. When I give a lecture in class on "Moral Reasoning on the Policy Process" in a local postgraduate school of public policy, I tell my students the key takeaway point of the Beauchamp and Childress model is that these four fundamental principles are often in conflict with one another; and that the doctor as well as society and government have to weigh the benefits and downside risks of each action contextually and take a holistic approach.

For example, every pharmaceutical drug has desirable effects as well as side and adverse effects. A doctor wants to do good to the patient by prescribing a drug (beneficence) while taking into account the potential side and adverse effects (non-maleficence). The patient needs to be informed of these effects and agrees to take the drug (autonomy).

However, in the case of tuberculosis, the patient does not have total autonomy, because the law mandates he completes the treatment taking certain drugs under observation to prevent drug resistance and transmission of the disease.

In the Dr Soo case, the imposter said the patient was suicidal, which was not unlikely given her extensive psychiatric record. If one accepts the claim that the patient was suicidal, then it is likely that she was in a mental state where she could not effectively give consent or authorisation.

An expert report submitted with the case had a senior doctor saying that Dr Soo was justified in disclosing the patient's information without her permission given the circumstances; and that his response to the call, in providing a memorandum to family members to get help, is common in psychiatry and appropriate in trying to get "expeditious help" for the patient.

Therefore, autonomy is of secondary importance in this case, because a doctor's primary concern is to prevent self-harm by the patient. Dr Soo therefore issued a memo to the imposter on the basis of non-maleficence and beneficence in the context of a very urgent if not emergency situation.

Dr Soo was punished heavily because he failed to verify the identity of the imposter. He did not verify the name, NRIC or contact number of the caller or check the patient's records for such details. While it is true he did not conduct such basic checks, in practice, it is extremely difficult to have a satisfactory way to verify the identity of an imposter, especially when he is a close family member who knows a lot about the patient and her family members, and can be convincing enough with personal details to fool the doctor. A thorough and effective verification process would entail asking the enquirer to present himself in person with the necessary documentation, such as his NRIC card and even marriage certificate, by which time the patient may have harmed herself terribly.

Apart from identifying the key principle, a good application of medical ethics requires us to identify the countervailing principles and adopt a holistic approach in assessing a case.

For example, a patient has a right to know what disease she has (autonomy), but do we tell her she has cancer at the first instance when she is obviously suicidal (non-maleficence)? In all likelihood in Singapore, the doctor will tell the next-of-kin or close family members instead.

In Dr Soo's case, the memo was not written out of any self-interest on the part of the doctor. His main concern was the well-being of his patient and to prevent self-harm, including suicide.

In the context of this case, the patient's autonomy and hence confidentiality rights should have been of secondary importance because the doctor had little choice but to assume out of prudence that the false tale concocted by the imposter was true. A delayed or prolonged verification process could have had disastrous consequences.

These are important countervailing principles at work which should be taken into account in determining the severity of the penalty meted out. My own view is that the $50,000 penalty was excessive.

The case has a chilling effect on the medical community. It comes shortly after the case of Dr Lim, who was fined $100,000 for not getting informed consent from a patient before giving her a common injection.

It is also particularly galling that while Dr Soo has been punished, the imposter appears to be at large. With respect to the imposter, justice is not done and has not been seen to be done.

For medicine to be practised in a way that is sustainable for both the patients and doctors, the doctor-patient relationship needs to be protected. Protection does not mean just protecting the patient, but also the doctor.

Protecting a doctor does not mean letting him off lightly. If a doctor is errant or negligent, he deserves censure and punishment by the SMC.

But if a doctor makes an honest mistake in an attempt to do good, and no serious harm has ensued to the patient as a result, he deserves to be given treated fairly, not harshly.

If a doctor is not given due consideration when he makes an honest mistake in his attempt to do good, then the default option left for the medical profession is to embrace defensive medicine to the detriment of the doctor-patient relationship and society at large.

A local medical affairs blogger has joked that arising from the two cases, we will soon need an army of "consentologists" and "verificationologists" to keep doctors from being found guilty of professional misconduct. This will lead to either higher costs and/or more waiting time, and less satisfaction for both patients and doctors. And the sad fact is, this joke may not be far from the truth.

• Dr Wong Chiang Yin, a public health physician in the private sector, is a former president of the Singapore Medical Association. He is now an elected council member of the SMA and the Academy of Medicine Singapore.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

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