Paying the price when rulings are overturned

By Salma Khalik, Senior Health Correspondent, The Straits Times, 6 Dec 2014

AN UNUSUAL thing happened when obstetrician and gynaecologist Lawrence Ang appealed against the Singapore Medical Council's (SMC) decision that he was guilty of not acting in his patient's best interest and should be suspended for three months.

First, the Court of Appeal, comprising Chief Justice Sundaresh Menon and Justices Andrew Phang and Judith Prakash, overturned the guilty verdict last month.

Second, and this is the unusual part, the medical watchdog was ordered to pay Dr Ang's legal costs for the disciplinary hearing as well as the appeal.

That ruling was a first, and sets a possible precedent for future cases. Up until Dr Ang's case, doctors always had to pay for their own legal costs even if they were cleared of wrongdoing by the courts. Those found guilty had to pay both their own as well as the SMC's costs.

The reason for this was spelt out in 2010 by then Chief Justice Chan Sek Keong and Justices Andrew Phang and V. K. Rajah when they overturned another SMC guilty verdict against a doctor.

They explained that when it came to legal costs, "we have decided that in all the circumstances, we will not order the SMC to pay the costs of the proceedings as we are prepared to give it the benefit of the doubt that it had acted in good faith and in the public interest in trying to stop what it believed to be an inappropriate treatment for a particular medical condition".

So even if the SMC was ultimately proven wrong, it would be spared paying legal costs.

But when Dr Ang's case turned up, the apex court decided quite differently, sparking discussion in medical and legal circles.

In 2009, Dr Ang delivered a baby who had an infection and congenital pneumonia that required five months of hospitalisation.

The disciplinary committee made clear that the baby's condition was not the doctor's fault, but suspended him for three months for not having a neonatologist, a specialist in the care of newborn infants, present or on standby for the delivery, given signs that it may not be well.

Of the seven expert witnesses called, five saw no need for a specialist to have been on standby. The Court of Appeal criticised the committee for accepting the opinions of two experts who thought the specialist ought to have been present, without explaining why it ignored the majority who felt otherwise.

Several lawyers told The Straits Times Dr Ang was awarded costs most likely because the SMC was not only clearly wrong in finding him guilty, but also because the way it had done so appeared highly questionable.

They pointed to the judges saying the committee's findings were "contrary to the evidence" as an indication of how badly the committee had erred.

The irony is that if the SMC had cleared Dr Ang, he would have had to pay his own costs.

Costs for such hearings easily run into tens, often hundreds, of thousands of dollars, as doctors normally appear before disciplinary committees with legal counsel, usually paid for by the Medical Protection Society (MPS).

The not-for-profit organisation for health-care professionals offers help with legal and ethical problems that arise from their professional practice. Doctors pay subscription rates according to the risk of their practice, from $1,765 a year for a general practitioner to $36,370 for a doctor offering cosmetic or aesthetic surgery.

MPS told The Straits Times: "In the last few years, the cost and frequency of regulatory cases have risen. These are due to a number of factors, including the increase in number of complaints, number and complexity of SMC inquiries, and associated increase in SMC and defence legal costs."

As a result, the annual subscriptions paid by doctors have soared. Obstetricians like Dr Ang now pay $36,000 a year, up from $25,695 just three years ago.

The London-based MPS looks after the interests of almost 300,000 health-care professionals in more than eight countries and covers almost all the 11,000 doctors here.

Commenting on the outcome of Dr Ang's appeal, Dr Ming Teoh, head of MPS' Medical Services in Asia, said it was unusual for costs to be awarded against medical regulators, but he felt it was too early to say if the ruling would affect future cases to the extent that doctors' subscriptions might come down.

But Dr Myint Soe, a lawyer well-versed in medical litigation, said: "Of course, we'll all ask for costs now when a doctor wins."

This is not the first time mistakes by an SMC disciplinary committee have proven costly.

In 2012, the SMC changed the guilty verdict it delivered against Dr Georgia Lee for aesthetic practice, after the High Court dismissed a similar guilty verdict against Dr Low Chai Ling with scathing comments about the SMC's biased and slipshod disciplinary inquiry.

Many doctors were offering the aesthetic procedure, but the SMC chose to take only some to task. Also, Dr Low was accused of doing those procedures before the SMC had declared them to be not evidence-based.

Two years down the road in Dr Ang's case, the SMC disciplinary hearing has been taken to task for relying "on facts that it should not have considered".

Doctors are understandably concerned that such mistakes by the SMC could prove costly for them in terms of the fees they pay the SMC for their practising licence. This was raised to $400 a year in 2012.

The SMC has refused to divulge if its income comes entirely from its 11,000 members, or if it has separate government funding for the large sums it needs for such disciplinary hearings.

Unlike the Singapore Dental Council, the SMC does not list its income or disbursements in its annual reports. The dental council does receive a government grant on top of the fees it collects from dentists.

In the case of the SMC, it is a matter of equal concern if the costs are borne by doctors or taxpayers, especially in cases that prove costly because of a lack of understanding of how disciplinary cases should be heard.

Perhaps doctors should stick to what they know best - medicine - and leave the intricacies of disciplinary hearings to those trained in the law.

It is a pity the 2009 proposal by then Health Minister Khaw Boon Wan to amend the Medical Registration Act so that SMC disciplinary tribunals include a legally trained person was derailed.

That might have saved time and money wasted on appeals against decisions that turn out wrong.

It might also have gone some way in assuring doctors and patients that they will get a fair hearing, and avoid the need for costly appeals to the High Court.

Why lawyers not on SMC disciplinary panels

MR HENG Cho Choon harbours some misconceptions about the Singapore Medical Council in its conduct of disciplinary tribunals ("Worrying lack of legal expertise on SMC panels"; yesterday).

Doctors know well enough that they are dilettantes when dabbling with the law, so legal counsel is always present for both the SMC and the defendant doctor in all proceedings of the disciplinary tribunal.

When doctors appeal to the law courts, more often than not, it is a guilty verdict by the disciplinary tribunal that is overturned. It implicitly suggests that the courts are less stringent in the interpretation of medical standards than the doctors who make up the disciplinary tribunal.

Dr Chong Yeh Woei, then president of the Singapore Medical Association, addressed this concern in the letter ("Disciplinary tribunals are not law courts"; June 24, 2009). He pointed out that, while lawyers are present at SMC disciplinary hearings to ensure that "procedural matters pertaining to principles of fairness and natural justice are not overlooked", whatever is not necessarily illegal or impermissible may not be medically ethical.

He added that the role of the disciplinary tribunal is to determine if there is professional misconduct in areas which the law is silent on. As mentioned earlier, this is distinct from illegality. Dr Chong's concern then, as should be everybody's concern now, is that allowing lawyers to chair disciplinary tribunals will make proceedings more legalistic, with "a slow deterioration in the higher standards of medical ethics, which is against public interest".

Appropriately, he also noted that it is by the same reasoning that lawyers do not sit on the disciplinary tribunals of other professions in Singapore.

Laymen should be careful what they wish for - they may get it, much to their detriment.

Yik Keng Yeong (Dr)
ST Forum, 10 Dec 2104

Worrying lack of legal expertise on SMC panels

IT IS too bad that then Health Minister Khaw Boon Wan's proposal in 2009 to amend the Medical Registration Act, such that Singapore Medical Council (SMC) disciplinary tribunals include a legally trained person, was derailed ("Paying the price when rulings are overturned"; last Saturday).

If this had not been the case, SMC's case against obstetrician and gynaecologist Lawrence Ang would likely not have seen the light of day ("Doctor succeeds in appeal against suspension"; Nov 22).

If the SMC chooses to discipline doctors through a tribunal void of legal knowledge, then appeals against its rulings are likely to crop up again and again.

Doctors may be specialists in their respective fields, but they are not experts in legal issues.

When the SMC convenes a tribunal, panel or committee to make decisions that affect the livelihoods of doctors, it behooves the council to apply the rules of natural justice.

It should bear in mind that people have a right to be heard, and the ruling must be made by someone free of bias, and must be based on evidence, and not on speculation or suspicion.

Lastly, decisions must be communicated clearly, to explain what evidence was considered in the decision-making process.

Heng Cho Choon
ST Forum, 9 Dec 2014

Medical ethics not about legality or illegality

I THANK Dr Yik Keng Yeong for his letter ("Why lawyers not on SMC disciplinary panels"; Wednesday) addressing the concerns of Mr Heng Cho Choon ("Worrying lack of legal expertise on SMC panels"; Tuesday).

As I understand it, there are at least three lawyers present in a disciplinary tribunal hearing. There is a lawyer each for the prosecution and the defendant, along with a legal assessor that advises the panel of three doctors on matters of points of law.

The practice of medicine is complex with outcomes that can be unpredictable. It is within this complexity that medical ethics has evolved over the centuries.

The bedrock of medical ethics recognises the following:

- Patients have autonomy or control over their choice of treatment;

- Doctors must put the interest of the patient first;

- Doctors must, first and foremost, ensure that their treatments do not harm the patient; and

- There must be social justice in allocating scarce health-care resources to the public at large.

It is within this framework that a tribunal of doctors must assess their fellow colleagues for professional misconduct.

Take the case of a patient with respiratory tract infection who is treated with antibiotics. He has the right to refuse the treatment; the doctor must ensure that the antibiotics are necessary for the condition; the patient should not be allergic to the antibiotics; and the consultation fee and cost of the antibiotics must be reasonable.

If one approaches the issue from the legal aspect of breaking the law, it is almost impossible for a policeman to decide what is "right" or "wrong" if the outcome is bad for the patient.

Medical ethics is not about legality or illegality, and going down the legalistic route does not solve the problem, as seen in the case of Dr Lawrence Ang ("Doctor succeeds in appeal against suspension"; Nov 22).

Finally, we want to see that the Singapore Medical Council continues to judge doctors based on the framework of medical ethics.

In reinforcing this framework, doctors and patients will continue to embrace this enduring social contract based on the goodwill and reciprocal responsibility that have been built, shaped and forged over the last century.

Chong Yeh Woei (Dr)
ST Forum, 12 Dec 2104