Civil Law (Amendment) Bill

Order for Second Reading read.

2.06 pm

The Second Minister for Law (Mr Edwin Tong Chun Fai): Mr Speaker, I beg to move, "That the Bill be now read a Second time".

Sir, this Bill is linked to the next Bill on our Order Paper, the Medical Registration (Amendment) Bill or the MRA Bill. With your permission, may I propose that the substantive debate on both these Bills takes place now. Members would be welcome to raise questions or express their views on both Bills during this debate and we will still have the formal Second Reading of the MRA Bill to ensure that procedural requirements are dealt with. However, this proposal is to allow for the substantive debate on both Bills to take place at the same time to allow for concerns on the related subject matter to be captured cogently in a single debate. Sir, with your leave.

Mr Speaker: Please proceed.

Mr Edwin Tong Chun Fai: Thank you. Mr Speaker, the practice of medicine revolves around the patient-doctor relationship. It is not exactly an equal relationship because the doctor has far more information and expertise than the patient. We call this information asymmetry in favour of the doctor. And that is why the patient-doctor relationship must be undergirded, supported and have its foundations in trust – trust between the patient and the doctor.

The patient has to be able to trust that the doctor is doing his best for him; and to the doctor, the interests of the patient must be paramount at all times.

Unfortunately, there will be instances where a doctor might fall short of what is expected of him and the doctor's conduct has to be looked at, and if necessary, sanctions might be imposed on the doctor.

In such a situation, a doctor has to be able to trust the system that regulates the medical profession. He has to be certain as to the standards by which he is to be judged, able to put faith in a system that will be fair, transparent and also produce consistent outcomes.

On this point, I would like to reiterate that we are in full agreement with the High Court Judges on several occasions who have pronounced the three main aims of a disciplinary system that regulates the ethical and professional behaviour of the medical profession. And they are: to uphold public interest – I think there really can be no doubt; second, to preserve and protect public confidence in the health system and the medical profession; and third, to achieve general deterrence in disciplinary outcomes such that other doctors are deterred from adopting unethical practices.

The importance of trust in both contexts cannot be overstated.

For patients, the quality of the doctor-patient relationship really has a direct impact on the quality of care and, of course, the outcome of care. Where that relationship is strong, then patients are more willing and more open to confide in the doctors, and that itself enhances the quality of the diagnosis and the quality of the outcomes. This in turn also allows the doctor freely to focus on the patient's needs, communicate information about the disease or condition and options for treatment honestly, openly and really without the spectre of having to look over his shoulders each time a patient walks into his clinic. This, in my view, enhances decision-making and outcomes for the patient.

For doctors, where the disciplinary system does not effectively and also consistently enforce the profession's standards, they face uncertainty and unnecessary stress. To cope with this, doctors may feel pressured to adopt defensive practices that they think will best protect themselves, not enhance the patient's outcome but protect themselves. And even in doing so, they might become less effective in serving the needs of their patients. We have seen and I will show later on in my speech some examples, both here in Singapore as well as elsewhere in the world of such practices proceeding and then undermining the quality of care given to patients.

Over time, these practices erode the trust of the patient and of course undermine the doctor-patient relationship.

Sir, to be clear, our medical profession is, and has been built on and is steeped in the finest tradition of looking after the patient first, doing what is best for the patient, putting their interests as paramount. That has not changed, and the high ethical standards that are found within the medical profession must be maintained and the patient must know that he receives the best possible treatment, each time and every time.

In recent years, however, the relationships of trust that underpin our healthcare eco-system has been called into question, following several well publicised medico-legal cases from the Singapore Medical Council or SMC Disciplinary Tribunals or DTs.

To give one example, Members will recall the case of Dr Lim Lian Arn, where the SMC DT had found Dr Lim guilty of failing to obtain informed consent from his patient. This was on the basis that he had failed to advise the patient on the risk of possible complications of a steroid injection, some of which subsequently manifested in the patient at hand. Dr Lim pleaded guilty to the charge and was fined the maximum of $100,000 by the DT.

Many doctors took the view that the sentence and conviction by the DT were unwarranted. It set an unreasonable standard as to how much information should be given to a patient in order to meet the standard and what that standard might itself be. And many doctors felt that even if there was a lapse in standard in this case, whether it was of sufficient gravamen so as to amount to professional misconduct.

Dr Lim's conviction was subsequently overturned on appeal to the Court of Three Judges, primarily on the basis that the disciplinary threshold of professional misconduct was not satisfied in that case. And in my view, rightly so. Questions arose as to whether this case ought even have gone to the DT in the first place, let alone result in a conviction with a sentence that attracted the highest possible fine under our legislation.

The Court observed that in Dr Lim's case, it was a "one-off failing committed in the course of a routine procedure", labelling the conviction in fairly strong words, a "miscarriage of justice". And that is a very serious indictment on the system.

The Chief Justice's observations in Dr Lim's case were correct and timely, and served to restore some faith in the outcomes, and of course, also in the system.

But members will also recall that shortly after Dr Lim's case, another decision by the SMC DT – this time, in Dr Soo Shuenn Chiang's case – gave rise to some further disquiet amongst the medical profession. This case also had to be subsequently overturned by the Court of Three Judges.

In the wake of these cases, there was a significant disquiet within the medical fraternity. Many doctors grew uncertain as to what might be required of them when they saw a patient, advised the patient, took informed consent as well as 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.

And whenever disciplinary outcomes diverge from well-established practices by doctors on patient care within the medical community, uncertainty follows. Doctors start to question their own judgement as to how much information is going to be enough to care for the patient, and there is the constant worry of whether this patient will make a complaint, and what will happen to the adjudication of that complaint.

This has damaged the doctor-patient relationship. And I should add the fact that the cases, particularly in those two that I have mentioned and others, have taken an extraordinarily long period of time to be dealt with from the time a complaint was first made, to when the DT resolved the case, has also added frustration, not just for doctors, but also to complainants. And this issue has arisen several times on several occasions over the last, I believe, at least a decade, before the Courts, resulting in many cases where the Courts have felt that they had to intervene to reduce the sentence on otherwise recalcitrant doctors. And that is also an indictment on the system.

Sir, we are already seeing the negative effects of this uncertainty and worry in the medical profession.

Let me just cite a peer reviewed study commissioned by the Singapore Medical Association and the College of Family Physicians Singapore. This was done in the period just after Dr Lim Lian Arn's case, the DT's decision. Doing a survey on the number of doctors who gave the same steroid injection, it showed that the number of doctors who were prepared to and continued to give that same steroid injection, the H&L injection, came down – the number of doctors reduced, while the median cost of these same injections increased.

So, fewer doctors were prepared to offer the treatment, and when they did, it became more expensive for the patient.

That is something done in Singapore on a procedure which most doctors would tell you is fairly routine. This study has demonstrated how the uncertainty engendered by these uncertainties, the medico-legal cases, the outcomes, has affected practice behaviour to the detriment of patients.

In addition, there are also accounts from the ground, from the doctors themselves, doctors whom we met – myself with my colleagues at MOH when I was there – with the work group that was appointed by MOH. We heard, for example, anecdotal accounts of doctors seeking to give patients voluminous amounts of information about all forms of possible risks from the textbooks and alternatives for the procedure, resulting in what the Courts regard as an "information dump" on the patient – a lot more information but really with a lot less understanding.

When the work group – that was appointed by MOH to review the taking of informed consent and to study the SMC disciplinary procedure – discussed the issue at many town halls – and there were many open town halls that took place, both in the private hospitals and in the public hospitals – there was a very clear, palpable sense that doctors grew uncertain of the standards that were expected of them. Many of them turned inwards. They were spending less time on patient-focused information and instead, providing information in a manner that they themselves judged would best absolve themselves of liability should the patient complain. The focus became very different.

The Court has – and the lawyers amongst us will know – 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. That is not the way to take informed consent, but yet, we have seen numerous accounts of this take place.

Beyond our shores, the experiences of other jurisdictions also serve as a warning to what might come if we do not take steps to address these issues.

A 2017 study published in the British Medical Journal found that protracted disciplinary proceedings were associated with an increase in defensive medicine in the form of avoidance behaviour – the kind of behaviour that one might have seen after Lim Lian Arn's case, when fewer doctors were prepared to offer that treatment. This journal was published, taking sensing and surveying statistics from the same jurisdiction where the Montgomery test on informed consent was framed.

Sir, I should add also that these issues that we have just talked about are not novel issues. In 2001, Minister Shanmugam – at that time when he was a practising lawyer – gave the Singapore Medical Association or SMA Lecture that year entitled "Testing the Bolam Test". It was given at a time when there was a discussion after a landmark decision in the High Court about what the relevant standard of care ought to be when taking informed consent. That was in 2001. At that time, like now, the issue arose because of a judicial decision on how informed consent ought to be assessed.

In that lecture, it was assessed that an increase in the practice of defensive medicine leads to far poorer outcomes, with some of the negative effects being: (a) a rise in medical procedures which are not in the best interests of the patient – more investigation and more checks just to ensure that there could not be a suggestion that perhaps some other test ought to have been done for this patient; (b) rising insurance and hence medical costs – overall, an increase in cost to the detriment of patients and to society; (c) stress for doctors, which we have heard articulated to the work group on several occasions; and (d) finally, critically, an erosion of trust in the doctor-patient relationship.

These issues, almost two decades ago, are quite the same and also about what to do with the legal standard for informed consent. These are also the issues identified by the work group today and it is clear that there is an urgent need to now address these issues swiftly and also decisively.

Minister Gan Kim Yong made a Ministerial Statement in April last year outlining the steps that MOH would take to address these issues and one of them was to appoint a work group. He gave them a clean canvas and told them in these terms: to leave no stone unturned. Start from a blank canvas, go out and consult with as many as you can, take the time, study it, understand the concerns and make the recommendations.

The work group was appointed in March 2019. It comprised doctors from various disciplines and also looking at having the composition, came from across a spectrum of different seniority of doctors. It also included the heads of the major medical professional bodies. It also comprised lawyers with significant medico-legal experience as well as laypersons with expertise in various fields. It was chaired by a medical director of a national specialty centre as well as a senior counsel.

In formulating its recommendations, the work group consulted extensively with relevant stakeholders. They held about 40 town halls and engagement sessions. These engagements sought to understand the breadth and depth of concerns and issues with the taking of informed consent and with the SMC disciplinary procedure. They consulted more than 1,000 doctors of varying seniority from a range of diverse practices across the public and private healthcare settings. They went to see the SMC itself; past and present members of the Complaints Committee and the Disciplinary Tribunal; the medical professional bodies, of which there are three and they represent the vast majority of doctors in Singapore; patient advocacy groups to ensure that in scoping the test, one does not also ignore the interests of the patient, which is paramount, as I have mentioned; insurers, who have a relevant role to play in rising healthcare costs and in ensuring that we continue to maintain a cap on where these costs are going; and of course also the lawyers, both on the prosecution and on the defense side in medico-legal cases. It is a very, very broad and extensive range of sessions that they had.

The sessions were a very effective platform for the work group to listen to a wide range of views. What was obvious was that there was a consistent theme in the call for change, not just in relation to the prevailing legal and ethical requirements but really also in the manner in which the disciplinary process was being conducted. It was quite clear that there was an urgent need to restore trust in the system.

I would say to Members that the broad range and depth of the consultation itself by the work group lends weight to the observations and recommendations which they have made.

Starting from a clean canvas, the work group formulated preliminary recommendations from the early feedback they received. These were then re-presented back to the doctors in different town halls, the medical professional bodies and other groups, and the stakeholders for further views, fine-tuning and testing before they finalise those recommendations.

On 28 November 2019, the work group released its 100-page report setting out its final recommendations and also the background thinking to its recommendations and what it was proposing to do. The Government subsequently accepted the recommendations and the contents of the work group's report ought to be considered by Members when debating these two Bills that are before us.

Sir, before moving on from this topic, I would just like to thank the work group members, the many organisers of the engagement sessions and all of whom who have provided views and suggestions voluntarily. They really kept coming at town halls, meetings, through emails and even on social media. If you talk to the work group members, they will tell you that they really lived and breathed the topic for a good nine months before they produced the report.

Since accepting the work group's recommendations in December 2019, what have we done?

Before coming to the Parliament with these two Bills, we have already implemented some of the changes. Let me just quickly outline a few of them. Those that do not require legislative change – for example, the enhanced training to ensure that there is quality of personnel across the spectrum of tribunals – has started. Internally, the SMC has devoted separate and additional resources to clear the existing backlog because Members will know that if and when this Bill is passed, this process and procedure will apply to new cases but not to the existing ones, which are to be resolved under the old regime.

In other aspects, such as the enhanced use of meditation, that has also been promoted to the extent possible, even within the current framework and rubric. For other changes, we have needed to come to the Parliament for legislative changes to provide for the establishment of the required structures and to reform the process and procedures. Sir, these changes are now reflected by way of amendments in the Civil Law Act and the Medical Registration Act.

We will also – apart from what the work group has recommended – propose to include some additional amendments, some related and some fresher ones, to enhance the workflow and to streamline and strengthen the disciplinary process. Some of these amendments arise from an earlier review of the SMC process that the SMC had itself commissioned independent of the commencement of the work by the work group.

Sir, the amendments to the Civil Law Act and the Medical Registration Act aim to achieve two broad objectives.

The first is to set a clear standard for healthcare professionals' duty in giving medical advice to their patients. On this, Members will note what I have said earlier about there being a lack of clarity. If the doctors themselves have that uncertainty, that lends itself to an outcome that is uncertain and in the longer term, leading to defensive practices. Secondly, to strengthen the medical disciplinary system through more effective enforcement of professional standards, more expeditious resolution of complaints and an increased transparency overall in the disciplinary process.

Clarity, certainty and consistency will be driving principles behind these amendments.

Sir, I will now highlight the key features of the Bill, starting with the Civil Law (Amendment) Bill.

This Bill seeks to legislate the standard of care that healthcare professionals have to meet in giving medical advice to their patients. For brevity, I will in this speech refer to this as the "duty to advise".

To understand the background and context to these amendments, it would be useful to quickly set out the current legal standard.

Prior to 2017, whether a doctor had met the requisite standard of care in the duty to advise or not was assessed by reference to the practices and opinions of a responsible body of his peers. This is called the "responsible body of medical opinion". Some might know it as the Bolam-Bolitho Test.

In 2017, the Court of Appeal pronounced the current legal standard for the doctor's duty to advise in the case of Hii Chii Kok v Ooi Peng Jin London Lucien. I will refer to this 2017 decision as the "Hii Chii Kok test".

Under the Hii Chii Kok test, a doctor's duty to advise requires that he disclose to a patient information that is relevant and material when giving the patient medical advice. The Court assesses what is relevant and material information from the perspective of the particular patient. The Hii Chii Kok Test was borne out of the observation that the Bolam-Bolitho Test did not sufficiently give effect to the principle of patient autonomy and that the previous test was regarded as too "doctor-centric".

While undoubtedly well-intentioned, this test in Hii Chii Kok has led to some uncertainty amongst doctors. The work group, in particular, found that many doctors perceived the Hii Chii Kok test as bringing in an element of variability and hence uncertainty as to what each patient might want to know, since what is relevant and material is said to be assessed from the patient's perspective.

Sir, I hasten to add that this is not necessarily an accurate reading of the test in Hii Chii Kok. The test in Hii Chii Kok seeks to strike a balance but the way in which it is articulated has given rise to these uncertainties.

At paragraph 13 of its report, the work group stated, "While some doctors understand how the test is to be applied, many others have expressed confusion and anxiety about what exactly they are now required to do. Some doctors have even candidly admitted that they now practice defensively just to be sure."

The work group found that doctors became unsure of how to advise patients in a manner that meets the standard of care, especially so given the realities of practice where doctors see a large number of patients across a wide spectrum on a given day.

I would add that much of this is likely to be a perceived uncertainty, as I said earlier and as the work group has also found, but perceived or otherwise, this leads to a course of conduct to guard against that perception.

In the face of this perceived uncertainty, some doctors have started to adopt defensive practices. I mentioned some of these engagements earlier. In one such engagement, a senior consultant specialist in private practice shared that this doctor took as long as 30 minutes to explain a procedure to patients, not necessarily with the end outcome of ensuring that the patients would come away with it with more information or more understanding but really out of an abundance of caution. This doctor presented this view in a town hall that had close to 250 doctors present. It was quite a startling admission.

As the work group put it in their report, "Patients are not necessarily better informed. On the contrary, we have received feedback that they are now increasingly inundated with information and are none the wiser."

Some doctors have become more reluctant to guide their patients’ decision-making, worrying that they may be accused of paternalism in doing so. Others, such as general practitioners – and we have heard one example earlier in the statistics – have decided not to offer certain treatments altogether. They opt to refer their patients to specialists instead, for fear of complaints being made against them.

All of these, as Members appreciate, are worrying developments. They threaten patient safety, they undermine the doctor-patient relationship, they make it less cost effective and overall, a weaker system for all.

Another subtle but perhaps understated state of affairs is that the current system is premised on a dichotomy that one has to choose: one has to be either patient-centric or doctor-centric, rendering the patient and doctor constantly pitted against one another in a zero-sum game.

Sir, it would be better to frame the legal test as one which coheres with a doctor and patient, jointly managing his or her medical outcome. One which acknowledges the reality that doctor and patient are, in fact, on the same side, working towards the same outcome: the good health and recovery of the patient. And striving to create an environment where doctors feel safe to give advice to allow a patient to make that judgement himself. But at the same time, creating an environment where the patient knows that he is entitled to ask any question he wants in that consultation, and the doctor has to give due regard to it.

After studying the work group’s recommendations, the Government accepted the recommendation to recalibrate the test for medical advice in the way in which I had outlined earlier.

On the one hand, this new test will strive to preserve the principle of patient autonomy as set out in Hii Chii Kok, by requiring healthcare professionals to give their patients the information they require to make an informed decision. So, for example, information about a procedure that a patient specifically asked for must be provided to the patient. And this is irrespective of whether some other patient might have wanted it or some other patient might have regarded it as material or otherwise.

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.

At the same time, however, the test will uphold the principle of self-regulation in the medical profession, by providing that regard should be had to what peer healthcare professionals say as to the appropriate standard of care in giving a patient information.

This is the peer review standard, which I had mentioned earlier. The Courts will continue to have oversight, by ensuring that the views of peer healthcare professionals pass muster when it comes to logic and reasonableness.

In concept, this is not a fundamental shift in direction – the underlying principles would be familiar to doctors, to lawyers alike and they are ones which are currently established in law.

However, we agree with the work group that the way in which the test is articulated best strikes the appropriate balance between the principles of self-regulation and patient autonomy.

Sir, before I go into the specific provisions, I would like to highlight that we are not alone in taking steps to codify the law in this area.

In Australia, the law of negligence, including its application to professionals such as healthcare professionals, had already departed from the English common law in some significant way in Rogers v Whitaker. It has been subsequently codified in various Australian states through legislation on civil liability, following a review on the law of negligence by an expert panel in 2002.

For example, Queensland’s Civil Liability Act and Victoria’s Victorian Wrongs Act prescribe a general standard of care for professionals. Section 21 of the Queensland statute, in particular, sets out the scope of a doctor’s duty to warn a patient of risks.

Sir, I will now take Members through the main features of the new statutory test.

The test provides that a healthcare professional will meet the standard of care in giving medical advice to a patient where two conditions are satisfied. This is set out in section 37(1). These two conditions are:

First, he acts in a manner which is accepted by the medical opinion of a respectable body of such healthcare professionals as reasonable professional practice in the circumstances. We call this, in short, the “peer professional opinion”.

Second, this peer professional opinion has to be logical, in that it has compared and weighed the risks and benefits of the conduct in question and arrived at a defensible conclusion that is internally consistent and does not ignore known medical facts – a formulation that I am sure that many in this House would be familiar with.

These two conditions incorporate the same legal principles that were used to assess healthcare professionals’ conduct using the Bolam-Bolitho Test.

To be clear, this does not change the burden of proof for civil claims in medical negligence. As before, a claimant patient continues to have the legal burden of proving that the healthcare professional has not met the standard of care in providing medical advice to him.

This statutory test also does not change the test for medical diagnosis and treatment, both of which continue to be governed by the existing legal test in the common law that is premised solely on peer professional opinion, that is, the Bolam-Bolitho test. This is since the principle of patient autonomy has a much smaller role to play in the arena of medical diagnosis and treatment, both of which remain largely within the domains of doctors.

The new test also prescribes the standard by which the peer professional opinion must assess the information given by healthcare professionals. To this, there are three limbs.

If Members can look at section 37(2), the first limb is set out in (2)(a)(i). The healthcare professional must give his patient information that a patient in the same circumstances, that is, a “typical” patient, would reasonably require to make an informed decision about whether to undergo a treatment or follow a particular piece of medical advice.

In the second limb, in section 37(2)(a)(ii), the healthcare professional must give his patient information that he knows or ought reasonably to know is material to that “specific” patient for the purpose of making the same informed decision as in the first limb.

So, section 37(2)(a)(i) provides for what you might do for a typical patient. That is judged by what the peers would regard as appropriate. The second limb requires the professional to also think about what might be material to this patient. Let me explain that a little bit more.

Material information falls into either of two categories, which are set out in section 37(3). First, if it relates to specific concerns or queries that the patient expressly communicates in relation to undergoing the treatment or on the medical advice. So, an express question or query or some discussion raised by the patient. That does not require any further elaboration. If a doctor is asked a specific question, that becomes something he has to explain.

Second, in the second limb in section 37(3)(b), where it relates to specific concerns or queries which the patient does not expressly communicate, but which ought to be apparent from the medical records of the patient which the healthcare professional has reasonable access to and ought reasonably to review. It is a bit of a mouthful, but let me explain why it is couched this way and to ensure that Members in this House understand it.

For the avoidance of doubt, any concerns expressly communicated by a patient have to be addressed. The work group was quite unanimous in the view that if it has been brought up expressly to the doctor, then the doctor has to address those queries.

In short, in that scenario, 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.

In relation to information that ought to be apparent from medical records, this is not intended to impose an obligation on healthcare professionals to review and go back into reviewing substantial volumes of medical records or voluminous medical history on the National Electronic Health Record or NEHR, in order to try and work out or ferret out what are the concerns or queries the patient might have. That is not the intention and clearly, that is not also provided for in the statute.

It is also not practical or feasible in practice. The litmus test is that of reasonableness – both in terms of what the healthcare professional has reasonable access to and also whether in the circumstance of the case, the discussion with the patient, the context in which the patient is seeing the doctor, whether that creates a scenario where the doctor ought to reasonably review these past records.

What is reasonable is a matter to be assessed in the context of each case and it is not possible to define upfront, at the start, all the categories, in a closed fashion, of information that will be regarded as reasonable or not reasonable. For instance, a factor that would go into the assessment of what is reasonable might well be the age of the medical records in question. So, it would not ordinarily appear to be reasonable for a healthcare professional to have to trawl through old microfilms and medical records going back 10 years, barring some exceptional circumstance.

And so, therefore, the older the medical records are, the less likely it would be that it would be reasonable to expect the healthcare professional to review them. But if there is an old medical record or an old investigation that is labelled, and you put a bright sticky tape on it and it is taped to the front of the file in an obvious way, and it makes some notes about this person's history from some years ago – perhaps an unusual investigation that has taken place or perhaps an allergy that would not be easily discerned from trawling through the files – then it would make it harder for that healthcare professional to say that that is something that he ought not look at in the context of this treatment.

Other relevant factors to the assessment would include what transpired during the discussion that the patient has had with the doctor and how the query or concern was characterised in the previous medical records. So, if something is mentioned in passing and does not feature prominently across the spectrum of the medical records, then it is less likely that it would be something that ought to be apparent to the doctor.

To enhance the understanding of how the provision operates, the Bill provides an illustration at section 37(3)(b) on when information that is not expressly communicated to the attending doctor will be considered material. The illustration of a patient undergoing a total knee reconstruction in that case is by no means intended to define or circumscribe what is “reasonable” in every case. It is just intended to give an example of what could or would satisfy the requirements of reasonableness in the illustration.

Sir, let me now move on to the third limb. The third limb, by contrast, addresses the other side of the equation; it asks whether there is reasonable justification on the part of the healthcare professional in situations where information is not given. This is in section 37(2)(b).

The Bill contains several illustrations in this regard. For example, there may be reasonable justification for not providing information in a situation of emergency or where a patient has waived his right of information by telling the healthcare professional that he does not want to be given information, and that can be established.

Whether there is a waiver is a matter of fact – sometimes of mixed fact and law – and the peer professional opinion can assist in the forensic analysis and weighing up of whether there has been such a waiver by the Judge or tribunal.

On the other hand, we are also making clear that a healthcare professional cannot simply refuse to provide information to his patient, merely because he thinks that providing a particular piece of medical advice or undergoing a treatment is in the best interests of his patient. In other words, you cannot make up your mind for the patient and then, decide, based on that end outcome, what information you will or will not tell the patient. That will not be reasonable justification.

Sir, if there are different peer professional opinions held by other respected healthcare professionals, then, each of these opinions can still be used, provided it satisfies that test of logic. If Members can look at section 37(4), this recognises that there may be diversity of views amongst 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, in the manner which I have described earlier.

Finally, Sir, let me outline the scope of the new test.

Section 37(6) of the Bill provides that the test applies not only in respect of medical advice given to patients, but also medical advice given to a person who is responsible for making a decision about undergoing a treatment or following a particular piece of medical advice on behalf of someone else – that someone else being a patient who is otherwise, legally disabled.

A legally disabled person is someone who does not have the mental competence to make the decision for himself. For example, a parent would be responsible for making a decision on behalf of his infant child.

Second, the test applies to healthcare professionals. This is defined in section 37(7) of the Bill to mean an individual practicing a profession that provides medical advice. This includes doctors, dentists and oral health therapists, and is not an exhaustive list.

The scope is broad enough to include any individual who practices a profession that provides medical advice, or for which it can be shown that there exists peer professional opinion.

We appreciate, Sir, that, beyond the language and contours of the legislation itself, healthcare professionals will require detailed guidance on what is required from them under the new test in practice. We fully agree and we intend to provide such guidance, working with the professional bodies, also the SMC and the CMEP to do so.

For a start, we will be revising the Ethical Code and Ethical Guidelines or ECEG of both the Singapore Medical Council and Singapore Dental Council in respect of the issue of the taking of informed consent. That in fact, was something that the work group itself had proposed as a draft in its report and we will use that as a basis to start the revision of the ethical code and guidelines. There was in fact, a strong recommendation by the work group to do so to reduce the ECEG into basic core irreducible principles of professional conduct, and use that to gauge and guide doctors in terms of where that bright white line ought to be when it comes to the thresholds.

Steps will be taken to review and revise the SMC Ethical Code and Ethical Guidelines so that it is in-step with these latest proposed amendments both to the Civil Law Act as well as to the Medical Registration Act.

Sir, this new test for medical advice seeks to recalibrate, but not completely overhaul the standard of care for medical advice. We believe it endows it with more clarity and certainty. Healthcare professionals will also have the assurance that they will be evaluated on the basis of a peer who can assess and also contextualise the standard required to that of a clinical setting, which is important because as I have said, no two patients and no two consultations are identical.

At the same time, it maintains the high degree of patient autonomy that was present in the Hii Chii Kok test. And we strive to move away from a test that is described as patient-centric or a doctor-centric, but instead to one where we can say that it is really undergirded by patient empowerment. Patient autonomy and certainty in the medico-legal climate for doctors cannot be mutually exclusive ideals. They can exist in a virtuous cycle and in the process, build more trust into the patient-doctor relationship. And that ultimately, is the overriding objective of designing this test and adopting it in a way in which I have just outlined.

Sir, I will now move on to key features of the second Bill – the Medical Registration (Amendment) Bill, which amends the Medical Registration Act.

Broadly, these amendments seek to strengthen the system, make it more robust, and deal with as many of the problems that have been identified in the cases that I have outlined and also beyond that. This is the second slate of amendments that we are proposing, arising out also of the work group's recommendations.

Sir, I think it cannot be gain said that it is really of utmost importance that the medical disciplinary system functions efficiently, effectively and fairly. Both doctors and the public alike must trust in this outcome, know that it will be independent and transparent and also be able to enforce standards that are fair and consistent.

If this system falls short, it undermines confidence and in turn, will affect doctors’ practices and erode trust, in the way I have outlined.

The amendments in this Bill are quite substantial and I do not propose to cover every clause, probably to your relief, Sir. But I would add, Sir, that it is not a silver bullet. You cannot look at the provisions in and of itself, and so, we would like Members to look at these amendments as a collective whole. Because you cannot just change the process or you cannot just impose a time discipline or you cannot just say enhance training. They have got to be all taken into account together.

The amendments that we seek to introduce broadly strive towards four objectives, which I will organise my speech around and then highlight the salient clauses in relation to each of these objectives to Members. The four objectives are: firstly, to improve the quality and consistency of processes and outcomes in the system; second, to reduce delays and facilitate a more expeditious resolution of complaints; third, to protect patients more effectively; and fourth, to encourage as far as possible, the amicable resolution of complaints and facilitate a less adversarial disciplinary process in the appropriate cases between patients and doctors.

Sir, I will first address the change that we seek to make to improve the quality of the process and outcomes. When the disciplinary system does not effectively enforce the profession's standards, doctors are faced with uncertainty and unnecessary stress. In these cases, the patient-doctor relationship is sometimes supplanted by the plaintiff-doctor relationship.

We seek to introduce a number of changes to enhance the structure and to give more robustness to the disciplinary framework.

First, to further improve the quality of processes and outcomes, the new section 57 provides for the appointment by the Minister of an independent body to be known as the Disciplinary Commission or DC. This will be a body that is separate from the SMC, headed by a senior doctor as President.

It is envisaged that the President will be a full-time appointment. The DC will have a dedicated secretariat that will exclusively support its functions and it will have two key mandates. It will be responsible for constituting the DTs in each of the cases. It will set up the DTs and ensure the personnel is appropriate for the DTs. This is in place of the current SMC, which through its secretariat, assists in setting up the DT.

This addresses concerns about the independence of the DTs from the SMC. Currently, the DT is independent of the SMC which also acts on behalf of the complainant as the prosecutor. However, there is a continuing perception of the lack of independence simply because the SMC appoints the DT and also has a prosecution arm looking after the complaints of the complainant and framing the charges against the doctor.

This is ostensibly because as I said, they appoint the DT, but the reality is that it is not suggested that the DT is influenced in any way by the SMC. But nonetheless, this perception is a troubling one, with the potential to undermine confidence. We want the impartiality to be not just real but to be seen, to be obviously separate.

We are not starting from a clean slate as it were in this case as we looked at their practices in other countries, other jurisdictions, and the one that is fairly close to what we are proposing is found in the United Kingdom. In the UK, the General Medical Council, which is the equivalent of the SMC, established their Medical Practitioners Tribunal Service in 2012, and the purpose of this was, amongst other things, to provide a clear separation between a GMC's investigation functions and the adjudication of hearings, which is similar to what we are proposing here.

With the DC, it will be responsible for the setting up of the DTs to hear the cases as tribunal and the SMC will continue with the function of preferring the charges and prosecuting the charges on behalf of the complainants.

The DC’s second key mandate is to oversee the training of members of the Complaints Panel and the Health Committee, and ensure that they are appropriately trained to carry out their roles in the various committees. This addresses various feedback both from members of the CCs and DTs and also from doctors in the town halls that we need to increase and uphold the standards of doctors who sit in these tribunals. Many of them are experienced doctors, but sometimes marrying the experience as doctors to a process that has a fairly strong legal slant to it may not always make for a good match.

Other than providing for this, training, regular and systemic training will also help them to carry out their duties better. And that is something that the DC will oversee to ensure that the various disciplinary committees are staffed by well-trained, up-to-date and competent members.

As a step to ensuring consistency in processes and outcomes, we are proposing that a legal professional is required to sit on each DT. The new section 58(1) provides that individual DTs will now comprise two doctors and one legal professional. Previously, DTs were constituted in various permutations, and it was not obligatory to have a legal professional sit in one of these tribunals, but our view is that having an experienced legal professional on the DT will bring greater legal and forensic expertise to the DTs' deliberations and determinations.

In addition, the quasi-judicial nature of DT hearings means that they also invariably require the consideration and application of legal concepts and forensic analysis, such as the application of the standard of proof and assessing the weight and relevance of evidence.

In some of the more difficult cases, the key issues may also be more legal rather than medical in nature. In addition, having a legally trained member sit on the DT will assist the DT in preparing his decisions, ensuring that they are legally sound and structured and also ensure that there is a consistent body of decisions to guide future DTs in their decision making.

In some cases where the DC President might regard as being more complex or novel or perhaps raise novel issues of law, they may be more appropriately directed to a serving Judge or Judicial Commissioner of the Supreme Court. The new section 59 provides a mechanism for the President of the DC in those cases, to apply to the Chief Justice for permission for a Judge or a Judicial Commissioner of the Supreme Court to chair the DT in those cases.

So, there is an opening or option in section 59 for the President of the DC to decide on a case being more complex and inviting the Chief Justice to nominate a Judge or a JC to sit as a Chairman of that particular DT.

Sir, I should make it clear that with this proposal, we still continue to maintain the principle of self-regulation by the medical profession. The legal professional will not necessarily be the chairman of the DT and further, a serving Judge or JC will only chair cases where the President of the DC feels that it is appropriate to do so, and the decisions of the DT will still be determined by majority vote. Even in a case where a Judge or JC sits as a Chairman, that person cannot on his or her own override the opinion of two doctors if both doctors agree with each other.

Sir, on this note, I should also highlight that the SMC appointed a Sentencing Guidelines Committee in January 2019 to look at and to draw up sentencing guidelines for DTs to ensure uniformity, consistency and to ensure that the DTs pay sufficient regard to the relevant factors when deciding on an appropriate sentence.

The committee has completed its work and the SMC published these guidelines in July 2020. These will complement the current amendments to facilitate fair, consistent decision making by the DT.

The next change we are proposing is to introduce greater legal support throughout the system. This is to strive to improve the quality of decision making at every level of the process. For this purpose, the SMC will be establishing a legal advisory and prosecution unit. The advisory arm of this unit will advise the disciplinary committees in their disciplinary framework and ensure that they have access to legal support that they require to perform the 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; a topic that I will return to later. While the creation of the new Legal Advisory and Prosecution Unit does not in itself require legislative amendment and will be effected by the SMC administratively, I thought to highlight this to Members as they reflect an important part of the structural changes being made. So later on, when I deal with the IC and the RC, Members should also recall that the legal unit does sit and is present to assist the IC at the outset.

The moment a case is referred to the IC, the IC gets legal support to assess the case, to assess whether it is vexatious or frivolous and whether or not it meets the required threshold for professional misconduct.

Next Sir, the amendment will also provide that it is the SMC rather than the CC which will determine whether a matter is referred to the DT or not. Currently, the MRA requires the SMC to appoint a DT if the CC determines that a formal inquiry by the DT is necessary. So, a typical CC will be appointed; it will be a three member CC and if the CC, after deciding that it needs to be sent to the DT, currently the SMC has got no role to play in that process and the matter goes to the DT.

And that is the case even if the SMC might otherwise disagree with the view of the CC. During the work group's consultations, both the SMC as well as the medical community felt that the SMC should play a more proactive role in ensuring that it is aware of the outcomes of complaints and that there is also a more consistent and uniform filter that the SMC can play before it goes to the DT.

The medical community feels that the SMC as a whole, has to take ownership and oversight of handling of complaints and not just delegate this to a CC. To this end, the SMC will be responsible for the ultimate decision as to whether a matter will be referred to the DT or not. And we believe that the collective wisdom of the SMC in reviewing the CC's decision will also act as a check to ensure that the threshold for professional misconduct is met or at least met in a prima facie way before the matter is referred to the DT.

The new section 46(6) provides that the CC will now make recommendations to the SMC as to whether there should be a formal inquiry by a DT. If a CC recommends a formal inquiry by the DT, it will also have to formulate the charges and give its reasons for recommending the referral of the complaint to a DT. This provides for a more seamless transition. At present, the moment the CC recommends that the matter should be heard by the DT, it finishes its functions. It passes the matter on and then a new team, almost, takes over. Here, once the CC has decided, it states its reasons and it will also at least formulate the charges, if not fully, as least in draft, so that the DT or the prosecution at that stage, will know the thinking of the CC and know what were the considerations by the CC in referring the matter to the DT.

On the other hand, if the SMC determines after the recommendation by the CC, that the case should not proceed to a formal inquiry then under section 46(7), it must inform the parties of its determination and the reasons for this. So, the fact that it has decided not to take up the CC's recommendation and also its reasons for not doing so. It may also take a range of alternative actions such as issuing letters of advice, or warning; or perhaps directing the doctor to seek and undergo medical or psychiatric treatment or counselling in the appropriate cases.

The decision of the SMC as to whether to refer a case to the DT will be final. This is also in line with what is currently the system with the Law Society, a similar system where the Council of the Law Society makes the final decision on whether to take further action in relation to a complaint after it receives the recommendations from the Inquiry Committee or IC in this case, which is the Law Society's equivalent of the CC.

Sir, in this regard, we are also making clear the standard for referral of a case to the DT, which is not currently provided for in the MRA. Section 46(2) provides that it must be a case where there is a cause of sufficient gravity for formal inquiry. We wanted to do this to ensure that there is at least a gate or a threshold before the matter is referred to the DT and the relevant members of both the CC and the SMC apply their minds to the standards that have to be established.

Sir, in assessing whether the threshold is satisfied, the CC and SMC should engage in the three-stage inquiry that the Court of Three Judges set out in Lim Lian Arn. I do not need to repeat that here, but those will be the criteria and we would require the SMC members to have regard to that pronouncement in making the assessment.

The amendments to provide for the SMC to determine if a DT to be appointed as well as prescribing the standards for referral, overall, we believe would allow for greater consistency of cases and also an overall uniformity of standards to be applied. So that as far as possible, whilst I have said, no two cases are alike, but the gravamen between the cases should result in a similar outcome in terms of the disciplinary process.

Sir, I move on next to look at the amendments to facilitate a more expeditious resolution of complaints. Sir, I think Members know that that has been one of the chief complaints about the system that has taken too long; that between the time a complaint is lodged until it is resolved, can be five, six, seven years in some cases; in the case where a doctor is found ultimately not liable, not guilty, it is a real strain on the doctor and a real stress on the doctor; in a 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 interest.

All of these issues do arise and what we have done is to look at some very specific measures to ensure that it is more expeditious. Overall, Members will know from the Bill that there is an overarching timeline that applies to the conduct of the case. I am not going to go into the specific timelines, but at each stage there is a timeline, there is some provision for extensions beyond certain number of extensions, the relevant committees will have to go to the High Court to make a case for that extension. And we believe that that is the really the best way of driving this forward in a fair way. On our estimate, on an average case, it would take something like a year and a half, 18 to about 20, 22 months for a case to be resolved and we believe that that is sufficiently reasonable time for the cases to be adequately disposed of. But of course, in the cases, which are more complex, require more time and more investigations, parties can apply to Court and justify that.

I will just quickly outline the measures that we have set up in the Bill to address the delays.

They are first, an early notification to a doctor that a complaint has been filed. Currently, part of the problem is the doctors do not always know immediately and sometimes it takes months, if not a year, before the doctor is aware that a complaint has been made.

Second, we strive to increase the pool of Complaints Panel members because the Complaints Panel really is the bottleneck. If the Complaints Panel is more well resourced, better staffed, then these cases can proceed more expeditiously and they enable disciplinary committees to be constituted more quickly.

Third, introducing a time limit – time limitation period for complaints. This is also similar to what is done in the Law Society to ensure that very stale complains do not get refreshed, really to ensure that there is also fairness in terms of having the doctors maintain his or her notes and the evidence and the quality of the evidence does not diminish if the complaint is an old one. There are provisions for exceptions to be made in cases where patients are unable to or did not know they can still seek leave, justify that and complaints can still be brought despite the time bar.

Fourth, we have created, as I mentioned just now, levers to control both individual stages of the proceedings as well as the overall length of time that the complaint takes to be resolved.

There are just two areas which are relatively new and I just want to spend a bit more time on them, to explain this to Members. The first is the Inquiry Committee. We have proposed a new filter mechanism up front, to help to sieve out unmeritorious complaints at an early stage. To give Members some idea of the thinking behind this, I will just give you some of the numbers that we have.

Since 2010, in other words, for the past decade or so, the SMC has received an average of about 165 complaints every year. Quite a significant percentage of these complaints are eventually found to be of no merit, either because they did not pass muster in terms of the standards; or the facts were found to be of a different sort than what was advanced by the patient; or it was otherwise vexatious in a sense that it was a repeat complaint; or a complaint that has been dredged up when it has already been resolved and so on.

Each such complaint takes up considerable resources to manage, which will be better utilised for more deserving cases where the complaint actually has a good basis. And on our rough numbers, roughly about 10% of these complaints make it to the DT every year. So, roughly about 16 to 18 cases make it to the DT. There is a fair number of cases that do not end up in the DT. The thinking behind having the IC is to have more resources upfront to evaluate these cases better, early, and direct more attention to them and dispose of them where possible upfront. Because as one can imagine, if you have the full 165 cases travel through the system, it will create a lot more strain on the resources and it will take a lot more time for each of the cases to be resolved. So, having more specialised and dedicated resources upfront, will play in our view, a significant role in filtering out the cases appropriate either for resolution, early resolution, or perhaps channelling into mediation and then only allowing those that require investigation or have merit in the substance of the complaint to proceed.

Sir, some complainants may not necessarily have all the information at hand at the time they make the complaint. This rule is not designed to shut them out because we do know, on one hand, that making a complaint is a serious matter and complainants are expected to substantiate the allegations. At the same time, complaints will not be dismissed out of head simply because they do not have the requisite level of information or the level of detail that is needed. In the appropriate cases, the IC will also direct that this will be either investigated further, or for the complaints committee to take it up.

In any event, if the complaint is dismissed, the IC will be required to give its reasons for the decision. This is under the new section 43(3)(a). It is the SMC's practice currently to inform complainants of the outcome of the complaints. This will continue to be the case even after the amendments come into force and the complainants will of course be informed if an IC dismisses their complaint along with the reasons for that dismissal.

Sir, there are new powers in section 43(3)(b)(ii) and 43(3)(c), which give the IC the power to direct the investigations commence upon referral to the CC without having to wait for the CC to be appointed. Sir, this is really just to close the gap between the two committees, so that at the time when one is handed over, straightaway, the investigation unit is empowered to commence investigations, take statements, take documents and really be in a position to be ready, once the CC steps in and is constituted. Once the CC is appointed, it then takes over and assumes oversight of those investigations.

Similar to the Review Committee of the Legal Profession Act or LPA, which some Members might be familiar with, there is no right of appeal from the IC's decision to another committee in the disciplinary process or to a Court. However, this does not preclude judicial review which is present and that is governed by general law.

Sir, there was some feedback during the work groups consultations as to whether or not this additional layer was necessary. Some might think that the CC could play this function and do this filter role. For the reasons I have set out earlier, as to why allowing these cases to be resolved earlier rather than to have them channel through the system, take up committee time, investigation resources, it is for that reason that we propose to have a filter up front and staffed better, more resource and also in tandem with the legal advisory unit that I mentioned earlier.

I just want to also mention to Members that the creation of the IC also parallels the Legal Profession Act which has a similar filtering committee and I think it is called the Review Committee.

Next, let me talk about the Review Committee or RC. It is a new creation; that is why I will spend some time on this. The Review Committee reviews the decisions of the CC except decisions to refer the complaint for a formal inquiry. This replaces the current appeals process whereby appeals against such decisions of CCs are made to the Minister for Health.

There is some feedback that the existing process for appeals was either not transparent or was slow; and sometimes unclear as to what the considerations were; and sometimes new evidence was let in, in those cases which then led to the process being derailed. The new sections 54, 55 and 56 provide for the appointment of the RC to consider requests made by the complainant doctor or the SMC against the CC.

I hasten to add that this RC is not intended to be a second CC and so the scope will be limited to two specific instances: First, whether or not there has been due process. So, it looks at the CC and evaluates it from the position of whether due process has been complied with. Second, to assess whether any new evidence has been submitted to an RC and if so, why and it will consider whether the new evidence is material to the complaint or to the outcome, as the case may be. The RC proceeds by majority and can make the orders such as stating that the CC has compiled with the procedural requirements, or it may direct the CC to conduct further investigations or inquiry.

Sir, I move very quickly to the third broad basket of changes, that is to protect the patients more effectively and just very briefly set out some of the provisions in the interest of time for Members.

First, we seek to empower the IC and the CC to obtain relevant documents and information for the purposes of their inquiries. I think it can brook no dissent that the relevant investigative arms of this process must be clothed with the power to obtain documents, take information as quickly as possible. So, the new sections 43(2) and 45(5) provide for that.

Second, we seek to also provide that the investigator can look into wrongdoings not covered by the complaint. It is something that we considered for some time because there are two schools of thought. One, if it is not contained in the four corners of the complaint, then why should the investigation start to look into this? On the other hand, it may be a related matter, one which would be a matter of interest and in the current rules, you would have to restart the process just to look into that.

So, in the end, it was decided that, to the extent that it is in respect of the same doctor or another doctor, the mechanism that is set out is in section 50, subsection 6 and 7 will apply, and the SMC may, on the basis of the report made by the investigator who has looked into these matters, file a new complaint against the doctor. So, you can investigate it at the same time, file a new complaint and I believe this is an improvement over the current process.

Next, allowing for interim orders to be issued more expediently in appropriate cases. This is also a new provision. It seeks to introduce a framework for the Interim Orders Committee (IOC). We provided for the IOC to be constituted more expediently and to act more quickly in circumstances where there is an imminent threat to the health or safety of doctors' patients. Let me very quickly outline the main changes.

Under the current MRA, the referrals to the IOC are made by the Chairman of the Complaints Panel. The SMC does not have power to refer complaints to the IOC on its own accord and the effect of this is that where the SMC learns of matters which might warrant a referral to the IOC, it is reliant on the Chairman of the Complaints Panel to do so, and we regard this as less than ideal. The new section 59J(4) will, therefore, give the SMC power to do so on its own motion.

Under the current MRA, the doctor must be heard at an IOC hearing in all cases before the order is made. So, with the best of intentions, sometimes, these hearings will take place weeks, if not months, after the referral is first made, for a number of reasons, not necessarily because of an intention to delay. The new section 59K provides that an IOC can make an interim order immediately, without first giving the doctor the right to be heard in certain exceptional situations. And these situations are limited to two types.

First, where a Court of law in Singapore has found that a doctor has engaged in conduct alleged in the complaint or information and the conduct poses an imminent danger to the health or safety of any of the doctor's patients. So, a finding of this has been made by a Court in Singapore and the SMC is of the view that this doctor's continued practice would pose an imminent danger to his patients.

Second, where the SMC is of the opinion that such conduct poses an imminent danger to the health or safety of any of the doctor's patients. So, the thresholds are high, but we regard this as being in the interest of patient safety and public interest.

In situations where such an interim order is made, the IOC must then convene the hearing within one month where the doctor will then be heard on his position and the interim order can then either be revoked or it can be replaced, as the case may be.

If the hearing is not able to be convened within the month, then the immediate interim order will lapse. So, this also seeks to preserve the balance between the SMC and the doctor's livelihood.

Sir, let me now move on to some other related revisions and then wrap up this afternoon's speech.

Sir, we are also making changes to the composition of the SMC. This is to ensure a greater diversity of representation and views. The SMC is the paramount body that regulates and also represents the medical community, and it is important that its composition reflects the range of views amongst the different groups and also the different range of seniorities in the medical profession. So, the amended section 4 makes two key changes to the composition of the SMC.

First, the major medical professional bodies will now be represented on the SMC. So, these are the Academy of Medicine Singapore, the College of Family Physicians Singapore and the Singapore Medical Association. They will be represented by their respective Master or Presidents, as the case may be, or by a member of their respective councils, as nominated by the President or the Master.

Second, there will now be one instead of two representatives from each medical school in Singapore. This could be the Dean or his representative. As the leaders of the major medical professional bodies are elected into their roles, the elected membership in the SMC will, in effect, be increased from 12 up to 15 members whilst the appointed membership will be changed from 15 to 12 members. In the same vein, the amended section 8 reduces the minimum years of standing required for a doctor to serve on the SMC from 10 years to eight years and a similar amendment has been made to the years of standing to allow a doctor to serve as a member on the Complaints Panel. We hope that this will encourage younger and also more doctors to step forward and serve on the SMC and on the Complaints Panel.

Finally, I have mentioned the increased and enhanced use of mediation at the outset. We have set out some provisions which allow for this and, in the interest of time, I will not go into that but to ask members to look at section 47 which empowers the IC to refer a complaint to mediation during its inquiry; this section similarly empowers the CC also to do so.

If the parties are participating in the mediation, obviously, if you are in the middle of a mediation, you do not want to have also a disciplinary inquiry. So, the IC or the CC may, having regard to the progress of the mediation, suspend the inquiry. We will work with institutions, like the Singapore Mediation Centre, to provide the relevant expertise and also infrastructural settings to achieve better outcomes through the use of well-trained, highly qualified mediators.

There will be a reporting obligation for mediators who will report to the IC and CC to ensure that one keeps an even keel on the progress of the mediation and it is not used as an excuse to dislodge or disrupt the timetable for the conduct of the disciplinary proceedings.

Sir, before I conclude, I just want to go back to a point I made earlier about the Legal Advisory and Prosecution Unit. I talked about it earlier. To recap, it is the advisory arm of the new unit that will advise the various committees. But there will also be a prosecution arm of that new unit and this will conduct prosecutions on behalf of the SMC. When that work group canvassed views, particularly from doctors, there were some who expressed the concern that the use of private law firms for prosecution may sometimes result in a "I must get a conviction at all costs" kind of approach and that is not the case. But it is also not healthy that there is that impression.

On the other hand, a dedicated in-house prosecution team, residing within the SMC under the new unit, will help SMC to strengthen its own capabilities. It will aggregate the cases, 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 would take to prosecute these cases. This, itself, will lend 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.

Sir, I believe I have covered most of the key recommendations. As I have mentioned to Members, these have all to be taken together. You have to look at it in its totality and I have not gone through every clause in detail.

Mr Speaker: Thankfully.

Mr Edwin Tong Chun Fai: Yes, Sir. [Laughter.]

But I just want to end by saying that these reforms are significant. They reflect a very strong ground sentiment, both by doctors and patients, and the extensive work of the work group in consulting over so many months – the number of doctors they have seen, the number of patients the advocacy groups have seen. They have also touched on stakeholders – insurers, lawyers, practitioners. They represent a very strong sense of what the industry – the legal, medical fraternity – wants to see. And many of these amendments that we have made here reflect that sentiment.

It remains only for me to thank the work group members. I also want to record my appreciation to the members of the three professional bodies. They have been very supportive of our efforts. They also have people sitting on the work group and they have also recorded their agreement and support for the changes reflected in this Bill. Sir, with that, I beg to move. [Applause.]

Question proposed.

3.24 pm

Mr Pritam Singh (Aljunied): Mr. Speaker, the Workers' Party supports both Bills. I will speak on the Civil Law (Amendment) Bill and my colleague, Mr Leon Perera, will speak on the amendments to the Medical Registration (Amendment) Bill.

For my speech, I will focus on the promulgation of the standard of care for medical advice in the proposed section 37, which I will refer to as the section 37 test, and the work group report on which the section 37 test is based.

I will speak on three points. First, there are many positives about the Bill and the work group report. Second, there remains some residual concerns about the section 37 test, which I will go into. Thirdly, I will make a point about the importance of an eye needing to be kept on the future.

Mr Speaker, first, the positives about the Bill and the work group report. I wish to thank the work group for its fine work and well-written report. The work group was set up in March 2019, as the Minister shared, and, by November, it had submitted its comprehensive report which contained 29 recommendations.

I have sought feedback from some doctors on the Bill. One consistent feedback that was shared almost unanimously was that the feedback from doctors on the systemic issues surrounding both informed consent and the SMC disciplinary process was taken very seriously by the work group and the Ministry respectively. As one doctor put it, and I quote: "The work group report succinctly captures the sentiment of doctors." When I read the feedback given by doctors in the report, it was refreshing to read what came across in an unvarnished yet professional way. To this end, the doctors and others who came forward to give feedback are also to be acknowledged and thanked.

The section 37 test, which is the subject of the Bill, appears to be a deliberate clarification of the common law modified Montgomery test that it manifestly takes into account peer professional opinion. In that way, the section 37 test combines the previous Bolam-Bolitho test with the modified Montgomery test.

Some doctors have said that the amendment is well thought out and would be welcomed by the medical community. It would go some way towards mitigating defensive medicine which, as we know, increases healthcare costs without necessarily improving medical outcomes.

Overall, the work group report and the section 37 test are significant steps in the right direction. The work group itself recommends further steps, including Recommendation 3, the development of nationally agreed speciality specific and situational guidelines to deal with standard commonplace procedures in each speciality. I am sure this House and the public look forward to the speedy publication of those guidelines as well.

Mr Speaker, this brings me to my second point, which is the concerns that yet persist in view of the proposed section 37 test.

The first query concerns how the proposed section 37 will be applied in Singapore Medical Council or SMC disciplinary cases going forward. Its application to future civil proceedings covering medical negligence is not in doubt. However, in light of the work group report’s recommendations to amend the SMC Ethical Code and Ethical Guidelines or ECEG on informed consent, as detailed in Annex F of the work group’s report, how will the proposed section 37 interface with SMC disciplinary proceedings where a doctor is deemed to meet the threshold of the “serious negligence” limb of professional misconduct? Prima facie, it ought to follow that the section 37 test would apply. To this end, and in view of the High Court’s judgment in Lim Lian Arn on the correct understanding of the ECEG with respect to professional misconduct, clarification by the Minister on this point would be helpful.

Mr Speaker, a few doctors have shared the following concerns about their professional experience should the amendments come into force.

One is the difficulties faced by doctors who have a limited time with patients. The work group report in Annex C sets out the feedback received from doctors on informed consent. Among other points, doctors gave feedback that, and I quote: “Thorough consent-taking is not possible in every setting, especially in the polyclinics. Doctors may be burdened with other onerous administrative duties and have heavy caseloads. They are simply not afforded enough time to build a relationship with the patient.” This feedback was given in relation to the perceived impracticality of satisfying all the requirements of the Modified Montgomery test.

The concern with the section 37 test is that it does not seem to solve this issue raised in the feedback. As the section 37 test still requires the idiosyncrasies of patients to be taken into account, it may still remain very difficult to take consent thoroughly in a polyclinic setting.

Even as the Government is ramping up the building of new polyclinics in anticipation of higher caseloads and a growing population of seniors, my understanding is that there are potentially a large number of patients, and 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 a specialist or as appropriate.

In addition, the doctor has to comply with the section 37 test when it comes into force. Not only does the doctor have to answer queries from the patient, as provided in sub-section 3(a) which can already take up time, sub-section 3(b) requires that even if the patient does not ask, the doctor must assess whether any information is material to the patient when reviewing the patient's medical records. And it is unclear from section 37 how far back the doctor should look, after all the records of an elderly patients can go back decades – although I note Minister's point about reasonableness in his Second Reading speech.

The only statutory illustration provided for in sub-section 3(b) concerns knee replacement surgery which is a major procedure done by orthopaedic specialists and for which a doctor will certainly have more time for consultation. But based on this sole illustration, a doctor working in a polyclinic and even a general practitioner in private practice may be hard pressed to know what is practically expected of them in dealing with large number of patients with short consultation times. Increasing the consultation time is not a practical solution because it comes with costs too, in terms of higher waiting times, higher consultation fees in proportion to the times spent and even stress on doctors.

Another concern that some doctors raised over the section 37 test to me is the difficulties that may arise when multiple doctors are involved in the patient's care, also known as team management, especially in large public hospitals. The patient may have many concerns documented by different doctors of varied specialties over a period of time. If a doctor who finally takes the consent inadvertently does not address one of the possible risks, especially one that is outside his or her speciality, would it be fair to hold this against him or her?

This is similar to one of the points raised by doctors to the work group and I quote, "Practitioners face an inordinate number of challenges in getting proper informed consent in team settings. This is partly due to restrictions of time, exigencies of service, operational efficiency and the lack of familiarity with patients". Although this concern was raised to the work group, there are no illustrations in section 37 to guide doctors in team settings.

May I ask the Minister for his response to these concerns. Also, may I request that the Minister consider more illustrations to interpret section 37 for better guidance, especially for doctors in polyclinic settings with limited consultation time and for doctors who work in team settings. Alternatively, or preferably in addition, could clear guidelines be issued by MOH as to how exactly doctors should practise in light of these constraints?

The section 37 test carries potentially serious consequences for doctors who are found not to be in compliance. It would not be ideal or helpful if the application of section 37 test raises doubts that can only be properly clarified in test cases. Because it is not only doctors who will suffer the consequences. All of us tend to lose if defensive medicine is practised due to uncertainty, whether in terms of over-treatment and the associated higher costs, longer waiting times, higher taxes or poorer healthcare outcomes.

Mr Speaker, my short third point is that we need to keep an eye on the future. In line with this, I would also make another suggestion which was given to me in feedback by a doctor and that is to have a mandatory review perhaps in two or three years' time on how the section 37 test and the new disciplinary process have worked in practice.

I would suggest that the Government review the issue of informed consent more frequently in light of the rapid changes in medicine, including the use of telemedicine and artificial intelligence-assisted medicine.

More fundamentally, regular reviews would be consistent with the evolution of medical care in Singapore, where individual rights and patient autonomy continue to move centre stage and reflect the current and future realities of medical practice.

The prospect of the doubling of the elderly population by 2030 and by extension more complicated or multiple medical conditions from a patient requiring overlapping advice and consultation may well be a harbinger for increased misunderstanding between patients and doctors. In our multicultural local setting, added complications could arise in view of potential language barriers in some cases.

Mr Speaker, those are my three points for today. First, the positives surrounding the work group Report and proposed Bill; second, the residual concerns about the section 37 test; and third, the need to keep an eye on the future. I support the Bill.

Mr Speaker: Dr Tan Wu Meng.

3.35 pm

Dr Tan Wu Meng (Jurong): Mr Speaker, I start by declaring my interest as a medical doctor. I also declare my interest as the son of a cancer patient.

All of us have loved ones who have been through the journey of illness. All of us know of stories, whether family, friends, residents being diagnosed – wondering what the next step is on the treatment journey. Grappling with uncertainty – whether from the perspective of a patient, or being the loved one looking on wanting the best for the patient, our loved one. And for those of us who happen to be doctors as well, seeing it from the professional lens but, at the same time, having those thoughts go through our minds that the person we are caring for is someone's loved one – could be very much like our loved one; that humanity connecting us together.

I support the broad architecture of the legislative changes. The intent is to help patients, and to help doctors to help patients. But I have questions to ask, both on the detail and on the bigger picture and my questions fall into three sections: the law, the process and the big picture – making patient safety better, helping patients better.

On the law, I want to ask about this new statutory test. How often is a statutory test legislated so quickly to supersede case law after a high profile Court of Appeal judgment such as the case of Hii Chii Kok.

I understand the Minister has shared there was consultation with the legal profession. For the benefit of those of us in this debate who are non lawyers, we will be happy to hear more on what was the legal profession's view.

The Minister spoke about engaging patient advocacy groups. Can the Minister share in greater detail what patients think of this and whether patients across a broad range of socio-economic backgrounds were engaged as well? Because the informational needs and concerns and worries of the Ah Gong, the Ah Ma living in a 1-room, 2-room HDB flat, are very different from the very well informed professional going to see a doctor. It is something that every practitioner faces every day and having confidence that the Ministry has looked at that is going to be very much part of looking at these reforms.

The Minister also said that there were comparable legislative moves in other jurisdictions like Australia. Can the Minister confirm that these were recalibrations or codifications of case law?

On the proposed section 37, sub-section (4) can I ask the Minister what will be the approach when there are different peer professional opinions, each of them deemed reasonable and logical? How does the Ministry foresee Disciplinary Tribunals and the Courts adjudicating on this? And if a Disciplinary Tribunal or the Courts happens to prefer one particular body or peer opinion, does that shape the weight in which that body will be considered in subsequent Disciplinary Tribunals or Courts' decisions.

Sir, on the second point – the process. Mr Speaker, implementation is policy. And if the new structures are to deliver justice and outcomes well for patients and for doctors, there must be adequate resourcing and manpower – whether to support the Inquiry Committee, the revised Complaints Committee or the workings of the SMC.

We know that when justice is unduly delayed, it is unfair for the patients and families, who spend years wondering what the outcome will be. Delayed justice is also unjust to an accused who will go for years not knowing if he or she will be found guilty or innocent.

On the other hand, Mr Speaker, it would also be a disservice to patients and doctors together if strict, speedy timelines are pushed, but without sufficient resources to do the job thoroughly and fairly. Can the Minister confirm and assure us that there will be sufficient resourcing and how will the resourcing be budgeted for?

I want to speak about expert witnesses.

Allowing a Disciplinary Tribunal to appoint experts is an important reform because we know that in an adversarial system, there is always a risk, whether real, implied or subconscious, that an adversarial spirit will permeate the adversarial proceedings. The Disciplinary Tribunal's own expert witness can thus be a second opinion to each side’s expert opinions. You might say a third opinion or a third way: a moderating force, a stabiliser when there are differences in expert opinion. Indeed, some jurisdictions have explored having the experts convened together in a less structured way, they call it “hot tubbing”; and these current reforms introduce an aspect of that. Because the first duty of the expert witness is not the side that is hiring them, but to the truth. So, expert witnesses must continue seeking the truth together and not as adversaries.

Mr Speaker, I now want to talk about the big picture. Improving patient safety, improving patient outcomes. Beyond the changes to the law and the regulatory framework, we must also look at the bigger picture. How do we improve patient safety? How do we help doctors and healthcare workers to keep patients safe, to provide better care? It starts by touching the ground every day, all the time.

I want to speak about younger doctors because for the SMC, lowering the minimum years of standing from 10 to eight, it sends an important message of inclusion – inclusion of the views and experiences of our younger doctors. This is important for Complaints Panels too, which must draw people from a wide range of backgrounds and experiences. The new section 39 allows a doctor of eight years’ experience to be appointed to the Complaints Panel.

But, Sir, what is on paper and the actual extent of representation – the actual extent of representation matters too because when you speak with junior doctors, young doctors out on the ground; busy, running, doing everything they can to keep patients going, to keep patients alive, our junior doctors have that certain closeness to the ground, especially on the inpatient wards. Our junior doctors have that sense of the actual working experience, actual working conditions. Whether it is implementing the decisions of a senior, more experienced doctor, or caring for patients in the middle of the night on call, a 24-hour shift, 36-hour shift or in the old days – and I am starting to sound like an older doctor – even longer shifts by those seniors who came before some of us. But these views from the ground from our junior doctors, our younger doctors, they add important colour to the understanding of healthcare delivery every day on the ground.

Sir, implementation is policy. And on the ground, especially in healthcare, implementation is reality.

Indeed, Sir, over the years, in some hospitals, it is our younger doctors – working together with nurses, allied health, medical social workers, healthcare administrators, mentors – who help bring change and transformation, keeping open eyes, open minds and open hearts.

Seeing through the eyes of our people. Seeing through the eyes of patients to make the journey safer and better for all. Seeing through the eyes of healthcare workers so that our people can do their best – and do even better – to look after patients, keep patients safer, lower the risk of human error. Because when a human error happens, it is not always just about one human.

Sir, I want to talk about learning from a tragedy. I want to mention a case reported in the media. In referring to this case, I take reference from public domain media reports, in particular, a Straits Times article from 18 January 2006.

Mr Speaker, over 15 years ago, Mdm Grace Leong was the only staff nurse in a welfare home taking care of 180 residents. One hundred eighty residents. One nurse.

One of the 180 residents was a patient with a drug allergy, newly diagnosed during a hospital admission. Staff nurse Mdm Leong was the only one at the home who knew of the drug allergy but she omitted to inform the doctor who was going to see the patient at a subsequent hospital appointment. This drug was later given to the patient who had an allergy to it. The patient died.

The State Coroner found staff nurse Mdm Leong negligent because by the legal definition of neglience, there was a duty of care, that care was breached for whatever reason and harm ensued as a result. So, you might say the coroner was bound legally to find that there was neglience. But the coroner also noted the challenging circumstances she worked under.

The then-executive director of the Singapore Nurses Association was quoted as saying, "This is a home with 180 elderly residents and they require a certain level of care. How can you expect a nurse who has to take care of all 180 residents to also provide the standard of care that is expected to be given to sick patients?"

Sir, I still remember how troubled I was to read about what happened because as healthcare workers, we are all in this together. When a fellow doctor does not deliver that care to the patient, we feel for the patient and we ask, "How can we help that doctor to do better?" When a nurse has been put in a difficult situation and things have not gone well, we believe in standing by our fellow healthcare workers as well.

In a letter to the Straits Times that year in 2006, I wrote, "It is true that nurses – while human and thus fallible – owe a duty of care to their patients. Yet care is not provided by individuals alone, but by organisations and the systems set up therein. When accidents occur, it is crucial to look not just at the individuals involved in making the error but also the system and organisation."

Nurses, doctors, healthcare workers – like everyone in this House, human and thus fallible. But we know healthcare is not provided by individuals alone but by organisations and systems.

Sir, Minister Ong Ye Kung spoke about aviation earlier today and indeed there are lessons we can learn from the aviation industry.

The airplane pilot has ultimate responsibility for operation and safety in-flight. But safety goes beyond the pilot and the airline industry recognises this deep truth. The International Civil Aviation Organization's or ICAO Safety Management Manual looks at the relationship between humans and workplace. They call it the "SHELL" model – software, hardware, environment and liveware. Liveware, as in people.

Software – the procedures, training and support; hardware – the machines and equipment; environment – the workplace in which everything and everyone functions; and liveware – humans, people who have to work with software, hardware and the working environment.

So, it is critical that MOH continues to touch the ground and look at systems factors as part of root cause analysis when mishaps occur. Healthcare workers being professionals must necessarily take responsibility, but our healthcare institutions also have a duty of care and a role to play in making safer workplaces and reducing the risk of human errors. Because nobody starts their day thinking of doing harm. No medical professional, no healthcare worker, no nurse starts their day intending to cause harm.

We need to continue making workplaces safer and reducing the risk of human error. We have to keep on improving because the day a belief sets in that improvement is not possible or not worth striving for, that is the day our system will ossify and begin to decay. We must stand against the belief that improvement is not possible. We must keep on improving.

Mr Speaker, in seeking improvement, good quality data is key. We have today discussed the duty to advise as part of informed consent. In Question Time earlier, I spoke about seeking truth from data, seeking truth from facts.

May I ask the Minister and MOH: have there been studies done on how much time is needed on average to adequately advise the average patient on a particular topic? 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?

Sir, 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.

Mr Speaker, these legislative amendments are an important step forward in helping patients and helping doctors to help patients. But our healthcare institutions, processes and management have a critical role too. I stand in support of these two Bills.

Mr Speaker: Mr Murali Pillai.

3.53 pm

Mr Murali Pillai (Bukit Batok): Mr Speaker, Sir, I first declare my interest as a lawyer in private practice. Before proceeding, I would like to refer to the revelation of my hon friend, Dr Tan Wu Meng, informing that his father is a cancer patient. I would like to take this opportunity to wish his father strength as he undergoes treatment and I want to wish my hon friend strength in taking care of him.

Sir, I wish to address the proposed section 37 in the Civil Law (Amendment) Bill, which introduces the standard of care based on what is accepted by a respectable body of medical opinion, which is assessed to be logical in relation to the provision of medical advice.

The key question is this: what is good advice from a doctor that is in keeping with the trust that the patient reposes in his or her doctor? That is advice that cannot be faulted by a patient for being incomplete, medically unsound or in any way that does not respect his autonomy and ability to make decisions for his own health.

A patient decides based on two things – first, what he knows and second, what he thinks the doctor is telling him.

The first is a function of metaphysics – what he feels he wants in life, his current state, his tolerance for uncertainty, suffering or more prosaic things such as personal finances, what he wants to leave behind, what he wants to use up in this life and his relationship with his family.

The second is less subjective. And it is this second part which I would like to speak on. I have two specific points to make: first, let us be clear on what balance we wish to strike between the recognition of medical expertise and patient autonomy. I do not find it useful to call the first "paternalistic" and the second "patient-centric" because of the negative overtones in the first and for the positive in the second.

I make this clarification at the start because there is some risk of doublespeak if we were to use these words without care as to their meaning.

Take for example the report from the work group to review the taking of informed consent and SMC disciplinary processes. The hon Minister referred to the stupendous work that this work group did and I join him in the laudatory remarks that he made.

In Annex E of the report, dealing with legal tests for the provision of medical advice, it spells out the motivation for the new test. It claims, "This is a patient-centric test based on peer professional opinion which has regard to patient autonomy and choice and takes into account what is material to the patient."

This test is called a patient-centric test but in broad strokes, it moves the needle towards the weight of doctors. I do not say whether this is right or wrong but merely to point out where the needle is moving – and we ought not try and give it a veneer of political correctness by calling it "patient-centric".

A model that focuses on the patient means we regard the materiality and relevance of information from the perspective of the patient. The new test measures this by reference to opinion of a responsible body of doctors. Some critics may argue that this new test will in fact emasculate the "patient-centric" element. This is the first point on which I seek clarification.

Can the hon Minister please tell how the proposed calibration for medical advice in favour of peer professional opinion represents an improvement on the status quo?

Currently, in relation to disclosure of information that a healthcare professional knows or ought reasonably to know, the legal standard of care is measured from the perspective of a reasonable patient in the patient's situation. This is not an end by itself but to facilitate the patient to make an informed decision on the advice.

The work group in its report refers to confusion and anxiety amongst many doctors arising from the application of the "reasonable patient" standard who believe that this will give rise to defensive medicine and more litigation. The hon Minister, made a similar comment today as well and he referred to this as more of perceived uncertainty. I fully agree with the honourable Minister with his views. So, if that is the case, perhaps we could deal directly with the perception of the doctors instead of introducing a new standard of care.

Also, would it not be the case if a patient who is provided advice that is based on the standard of care requiring him to reasonably understand and expect it, that there should be a lesser chance of him suing his doctor?

I note that the Bill itself does not make the claim of being "patient-centric". Again, I recognise the role of professional expertise in any decision-making. Being a professional myself, I hope my clients concede that I do know the law in a manner that they do not. What I am asking for is a clear-eyed recognition of the limits of the role of the patient, the role of the doctor and the role of the Court in the finding of fact.

This leads me to the second point. Even with this new test, there remains instances when the body of medical opinion is irrelevant. For example, whether a patient has indeed given a waiver to know information relating to a certain decision – that is, when a patient has decided not to decide. These are findings of fact and a place should be reserved for the Court to determine this matter rather than relying on the professional opinion of doctors.

Here, may I seek clarification on whether there is still a role for the body of medical opinion to be the standard of care governing this area? As the Minister is aware, the evolution of peer professional advice standard in case law was due to the recognition that in the medical field, it may be impossible to identify a single professional consensus on a specific course of action. Hence, so long as it is a view of a group of competent members of a profession, it suffices. But when it comes to issues of what a reasonable patient has or has not decided, one can presumably arrive at a more specific finding.

Lastly, Mr Speaker, Sir, I have been speaking on the interests of doctors and those of the patients and speaking of the needle as if more for one is less for the other. But as the hon Minister said, the interests of both do coincide in very large areas. Indeed, it is never in the interest of doctors to violate their Hippocratic Oath and harm their patients.

Mr Speaker, Sir, I consider decision-making between a client and a professional a collaborative process. But the relationship between a patient and a doctor is an unequal one – a point made by the hon Minister. It is unequal in terms of expertise, experience and judgement. That is why the law regards the doctor as the patient's fiduciary.

The doctor, in the giving of advice, must take this asymmetry into account. At the same time, often, we need the doctor to help the patient.

I had an illuminating discussion with the hon Senior Minister of State for Health, Dr Koh Poh Koon at the Members' Room yesterday where he shared instances when he was in medical practice where he had to exercise therapeutic privilege, often at the instance of the patient's relatives and not provide his patients with information that may lead to this patient becoming paraylsed with fear and becoming unsure as to what to do. That would not be a good outcome for the patients. We therefore need to continue to support doctors who in good faith and with utmost competence and due diligence – act in the interests of patients. And this, in the words of the hon Minister, would enhance decision-making and better outcomes for patients.

I ask for the Minister to clarify how this is addressed by the new test, as well as to ask the hon Minister to spell out more clearly the limits of this test in matters of fact-finding vis-a-vis the patient.

4.02 pm

Mr Leon Perera (Aljunied): Mr Speaker, Sir, the Medical Registration (Amendment) Bill represents the result of a process of review that was initiated in early 2019 and also saw the formation of the work group to review the taking of informed consent and SMC disciplinary process, which submitted its report in late 2019.

Taken as a whole, the Bill represents an important step in the right direction and I do not oppose the Bill. However, there are gaps and issues on which I shall speak to suggest further areas for review and Improvement going forward.

A furore on the medical community over the taking of informed consent emerged in early 2019 over the case of SMC vs Dr Lim Lian Arn. During the COS debates in 2019, I spoke about some of the issues raised by this and other recent cases in respect of the clarity around rules on consent taking and procedural issues with the SMC's disciplinary process, including the rules governing the composition of the SMC itself.

Why is the Bill before us today a step in the right direction? These include firstly, it will enable the SMC to issue immediate interim orders against medical practitioners if there is imminent danger to the public. Second, it specifies the statute of limitations which would tend to enhance clarity and confidence amongst the medical profession. Thirdly, it specifies timelines for investigation and disciplinary deliberations such as, for example, that for the complaints panel to appoint an Inquiry Committee and for the Inquiry Committee to perform its filtering role. This addresses the unsatisfactory situation of complaints being deliberated for years while during that time, a cloud hangs over the head of the medical practitioner who is the complainant. Fourthly, it provides for clear separation or clearer separation between the investigation and adjudication arms with the establishment of a new Disciplinary Commission or DC. Taking a step back and looking at the bigger picture, these clarifications would tend to advance confidence and certainty amongst medical practitioners which may lessen any drift towards defensive medicine.

Next, I will speak about potential gaps and issues in the Bills as it stands and make a number of suggestions. Before I begin, I declare my interest as the CEO of a research consultancy that there is some work in the healthcare services space.

While some have seen these amendments as lending greater weight in the disciplinary process towards doctors and away from lawyers and while, if true, that would have its merits, as the process would be more akin to discipline being meted out by a jury of one's peers, I wonder if there should be a role for patient advocates, so that the outcomes from the disciplinary process may better balance the interests of different stakeholder groups and will be seen to be performing that role.

This is not an idea that is without precedent. The Australian Health Practitioner Regulation Agency, for example, overseas a regulatory regime which includes performance and professional standards panels that consists of at least three members selected from a list of people approved by the national board. The panel will include at least half but no more than two-thirds of registered practitioners in the same profession as the practitioners subject to the panel, and at least one person representing the community.

Another interesting example to cite in this regard is Singapore's disciplinary process for accountants. The Public Accountants Oversight Committee or PAOC, operating under ACRA, is authorised to oversee all matters related to the registration of public accountants in Singapore. To ensure independence, a majority of PAOC members are not public accountants. They comprise experienced professionals from the Public Service, the business community and the audit profession. Providing some degree of representation to patient advocacy groups on such DCs while medical practitioners remain in the majority may be worth considering.

I would also suggest that legislation consider requiring that a public interest goal that encompasses a recognition of the need to balance all stakeholder interests, including those of patients, non-doctor medical staff and taxpayers be included in the mission statement of the SMC. After all, the SMA already exists as something akin to a union for medical practitioners and the SMC should be seen to reflect the broader interests and the greater good.

In the same vein, I would also like to ask: the 2019 work group report, which provided the critical inputs for these amendments, largely drew on feedback from doctors. The report did mention that the work group spoke to patient advocacy groups, but did not specify which ones. I would like to ask for details of which patient advocacy groups were consulted.

Next, Sir, I would like to ask if there will be a requirement for a minimum number of medical practitioners sitting on DCs from the same discipline as that of the medical practitioner who is the subject of a complaint or investigation. This would seem sensible, so as to inject relevant clinical expertise into the deliberative process.

Doctors come from an array of specialties and backgrounds and may not fully understand the intricacies of cases across the profession.

In Australia, for performance assessments, the national board selects an assessor whose scope of practice is similar to that of the practitioner being assessed. For example, a general practitioner who works in a rural and remote area might be assessed by a practitioner who is familiar with the particular challenges of rural practice. Moreover, in health and performance panels, at least one member must be a registered practitioner in the relevant or same health profession as the practitioners subject to the panel.

Next, Sir, while the introduction of a statute of limitations of six years for complaints is a good step to allow for the referral of a late complaint to the President of the Disciplinary Commission, section 41 (6)(3) may appear to negate the whole point of a statute of limitations. The President of the Disciplinary Commission will then decide if it is still "in the public interest" to pursue the case. It is possible that the threshold is set very low, in which case, many late cases will be pursued contrary to the reasonableness of the statute of limitations. Can the legislation or subsidiary legislation be more specific in describing the scenarios in which it would be permissible for a late complaint to be investigated?

Next, I raise the issue of ensuring sufficient training to members of the these DCs, in a way that is comprehensive and demonstrably. In the Lim Lian Arn and Soo Shuenn Chiang's cases, unjust outcomes were found by the Court of Three Judges to have arisen from ignorance of the Ethical Code and Ethical Guidelines or ECEG and of medical ethics in general. The Judges claimed that if the Complaints Committee members and the Disciplinary Tribunal members as well as both Prosecuting and Defence Counsel had all studied the ECEG properly as well as previous Court of Three Judges' judgments that were relevant, the unjust outcomes could have been avoided.

Beyond the medical aspects of the case, the members may not be familiar with legal concepts, such as rules of natural justice and due process, burden of proof, a minimum standard for professional misconduct, which is an issue of mixed fact and law and proportionate sentencing. For instance, in the Soo Shuenn Chiang's case, the DT wrongly accepted the guilty plea because of the failure to properly assess the facts of the case and whether the acts which Dr Soo admitted to, rose to the level of professional misconduct in the first place.

I would like to suggest the provision of certified training in the ECEG, medical ethics and relevant legal concepts for members of the named committees. Training of all members involved in the disciplinary process is key to ensuring justice. Section 57(2b) states that the Disciplinary Commission or DC is responsible for training members of the complaints panel or health committee.

For greater rigour, the amendments should include a requirement for certified training in the ECEG and medical law before someone can act in the disciplinary process. Such training would surely help raise confidence in the disciplinary processes among the medical community. I note that the 2019 work group report had recommended that such specialist training in legal matters be provided to members and that the DC should consider working together with the Singapore Judicial College, the Singapore Academy of Law and Singapore Medical Association on the provision of training. I understand that there are existing training courses provided for being an expert witness. But my suggestion here is for more comprehensive training to all relevant personnel with clear certifiable outcomes. I understand that Minister Edwin Tong did allude to the responsibility of the DC in ensuring that training is provided to DC members and would be grateful for more details on how this will be executed.

Next, the Bill seems to be silent on the question of who the SMC uses as its Prosecuting Counsel. The current practice of using commercial law firms may be unsustainable due to skyrocketing legal costs, sometimes, at the expense of fair judgments. I did note that, in his Second Reading speech, Minister Edwin Tong did allude to the creation of a legal unit within the SMC as part of the changes that will happen after the passage of this Bill if it is passed. I would be curious to know whether all legal work would be handled by this in-house legal unit and there would be no more reliance on outsourced lawyers, or would that be a hybrid model going forward.

The context for raising this question is as follows. The 2019 work group observed that commercial law firms appear to have an attitude of securing convictions at all costs, even at the expense of disregarding the ECEG and previous Court of Three Judges judgments in some cases.

Legal costs borne by the SMC have been known to be high, potentially posing a concern. This may result in doctors having to pay more in terms of their contribution to the SMC and medical indemnity insurance, in turn leading to rising healthcare costs borne by consumers.

In 2018, the SMC's net legal expenses for disciplinary proceedings – 880,000 – comprised a significant 10% of total operating expenses of $8.8 million. The 2019 work group report recommended the creation of in-house prosecution and legal advisory units to improve access to legal resources. This suggestion would also solve the issue of insufficient legal support provided to the CCs at present. Members of the legal and prosecution units may be drawn from the Attorney-General's Chambers or from the pool of Legal Services Officers to tap on their legal and prosecutorial experience.

However, 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 a cost-benefit analysis of having an in-house legal unit versus continued reliance on outsourcing to commercial law firms. I would urge the Government to work with the SMC to look into this question and act accordingly.

Next, I would like to raise the possibility of creating a parallel disciplinary process that departs from an adversarial system to an inquisitorial system so that witnesses, that are agreed to by both sides, may be questioned by the DT to form an opinion. Currently, the DT members may sit quietly for much of the proceedings while lawyers and witnesses duel in front of them. An inquisitorial system would remove the incentives and therefore the biases inherent in a "conviction at all costs" attitude on the part of the prosecution. It may also substantially lower legal costs. Moreover, an inquisitorial system for the SMC would give more power to the DT in directing the proceedings and offers the advantage of seeking the truth instead of taking sides. But the adversarial approach is perhaps most appropriate where the defendant needs to prove innocence in relation to a very serious charge. In fact, this point of feedback was raised during a review in 2014.

I would like to suggest that a separate non-adversarial track or parallel track for disciplinary proceedings be created which could be activated based on mutual consent among both parties or by an order from the DC, which may decide to order such proceedings in cases where, for example, one party is of lesser means and may thus be disadvantaged by the need to hire skilled legal counsel. For this to work, the DT members would need to be adequately trained, as alluded to earlier in my speech.

Next, I would like to speak on recognition and support for doctors serving in disciplinary committees or as expert witnesses. Currently, while a small honorarium is paid to some Complaints Panel members from the private sector, DT members are not reimbursed for the time spent on working on a case. The DT's two senior doctors would usually have to block out their clinical appointments for about a week for each DT case, representing a significant trade-off in respect of income. As a result, active private doctors who run busy practices often decline the invitation to be in the DT.

Yet, it is important to have full-time working doctors in DTs as it ensures its decisions are relevant, up-to-date and reflect ground realities.

One point I would make here in passing is that I suggest that the Government and the SMC analyse the current doctor composition on such committees to assess if senior and retired doctors are over-represented. One doctor in private practice I spoke to, had describe being in the SMC or serving in DTs as a "thankless job". Another doctor commented that a friend recently mentioned that you received 11-feet high stacks of notes to go through before a case, with little compensation and support to speak of.

Sir, I do not have a perfect solution to this. The stipend paid to doctors for their service could be increased, but there are of course limits to this as this may tend to raise the fees doctors need to pay for the SMC's costs which may pass through to consumers. One possibility is to automatically assign credit when doctors serve on disciplinary tribunals to count towards doctors' mandatory Continuing Medical Education or CME requirements to maintain good standing as medical practitioners. However, this would need further and consultation so as to be done in a manner that does not compromise CME goals.

My suggestion here would be for the Government to work with SMC to study this problem and consider better ways to incentivise and support doctors serving and Disciplinary Committees, including considering non-monetary forms of recognition and the provision of better supporting resources.

Next Sir, I would like to ask if the Minister could provide assurance that sufficient resources will be dedicated to allow adherence to stipulate the timelines under this new MRA. There is a perception that the SMC is stretched thinly on resources explaining the long timelines taken to resolve complaints and the existence of a significant backlog of cases. To meet these new stricter timelines, more resources would need to be made available. I would also like to ask if plans are being made for the SMC to handle the current backlog of cases to be in line with these new requirements.

Last but not least, I would like to raise the issue of the composition of the SMC returning to a subject I raised during the 2019 Committee of Supply debate.

Currently, the Government appoints a large number of SMC members. And in the past the majority of SMC members were not directly elected by the medical practitioner community. Anecdotally, it would appear that a perception still exists among the medical practitioner community that the SMC acts like a Government arm and as such the outcomes of disciplinary processes may reflect the Government's stance more than what is fair and agreeable to doctors.

The counter argument to that kind of perception is that an SMC, where the majority of members are elected from the medical profession, may become a body that tilts more towards the interests of doctors than patients or the wider society, in lieu of the hand of the Government to inject considerations of broader societal interest.

In considering this question and it is a big question, I would like to suggest that the Government considers regularly measuring the state of opinion among doctors towards the SMC to ensure that confidence is high. And in light of these findings, consider how best to tweak the balance between elected and appointed seats on the SMC, if at all. After all, an SMC which enjoys a high degree of confidence from the medical practitioner community would be a strong bulwark against any creep towards defensive medicine.

4.19 pm

Mr Ang Wei Neng (West Coast): Mr Speaker, Sir, for our healthcare system to work well, trust is critical. It is important that patients can trust their doctors and know that their complaints against errant doctors can be heard fairly.

Last night, one of my residents, Mr Chua came to see me about his mother, who passed away after taking a straightforward liver test in the hospital. His mother was hospitalised for a skin condition. Understandably, Mr Chua was very upset. We wrote a few letters for him. It is in this context that I hope that the debate on the two amendment Bills today, would build trust between patients and doctors, and not less.

I know that it is equally important that doctors need to know of the practical, clear and consistent guidelines to inform their patients on treatment risks so that they can fully serve their patients without fear that patients will end up suing them. But this trust had been under "serious threat of erosion", according to a special work group which was formed in March 2019 to look into this. The report pointed out that controversial, high-profile cases of medical malpractice which seemed to go on for a long time with outcomes the doctors did not expect, had perhaps made doctors fearful and wonder, "How can I care for my patient without getting into legal trouble?"

The work group to review the taking of informed consent and SMC Disciplinary Process has put in a lot of effort into this report, engaging over 1,000 doctors. I would like to thank the work group for the great job. Arising from their recommendations, which were released in November 2019, we are now at the stage of legalising some of these recommendations through the amendments of the Medical Registration Act or MRA and the Civil Law Act.

These recommendations will hopefully go a long way in restoring trust. In a nutshell, the MRA amendments put more responsibility on the medical community to self-regulate, with the creation of new legal advisory unit, dedicated secretariat and new committees. Currently, many people not in the medical fraternity feedbacked that the Singapore Medical Council or SMC is taking too long to handle and investigate complaints against the doctors. For example, out of 138 complaints in 2018, SMC could only conclude 18 inquiries. The doctors are also complaining. For instance, a doctor's interview in a news report last year, said it took two and a half years for SMC to resolve what she termed as a "frivolous" complaint against her. Thus, we hope that the legal mechanisms will be able to speed up the process for resolving medical complaints.

I spoke to several doctors and they are general pleased with the amendment Bill. In particular, some senior doctors are glad that the avenue to appeal to the Minister is replaced by a Review Committee which would also include a lay person.

In the light of the new Review Committee, I would like to ask the Minister what will be the selection criteria of the lay person stated in section 2 of Medical Registration (Amendment) Bill. In most people's mind, we hope that these laymen should be experienced professionals who are older, as they are more likely to have the experience to avoid making radical judgements.

However, in tipping the balance toward doctors, I am concerned that this might disadvantage patients in some way, especially those who are lack of resources. Mr Speaker, Sir, let me continue my speech in Mandarin.

(In Mandarin): [Please refer to Vernacular Speech.] Mr Speaker, it is timely to amend the Medical Registration Act to allow the SMC to set up a new Inquiry Committee to improve the efficiency of handling complaints. The new Inquiry Committee will decide within three weeks whether the complaint is valid from a doctor's point of view; vexatious complaints will be rejected immediately. If the complaint merits empathy and is not complicated, it will be recommended that the dispute be resolved through mediation. Cases that merits further investigation will be referred to the Complaints Committee.

In general, Singaporeans are not very familiar with medical knowledge. If patients suspect that they have been misdiagnosed or given the wrong medicine, they often feel that there is no way to lodge a complaint. I would like to ask, while the Bill is reassuring to doctors, what about further safeguards for patients if they have complaints? I hope Minister can provide help to complainants in 3 areas.

First, if the complainant feels that the Inquiry Committee is too hasty in dismissing the complaint, can he appeal to MOH? Second, when the complainant is ordered to go through mediation, can he apply for third-party assistance if necessary? Third, if the complainant does not have the means to hire a lawyer when he needs to go to court or when he is sued for defamation by the doctor, can he apply for pro-bono legal services?

Overall, we do not want an honest complainant to be denied access to appeals because of a lack of resources.

(In English): Mr Speaker, Sir, the Civil Law and the Medical Registration (Amendment) Bills have given the doctors a better peace of mind and have also benefited the patients. Through the amendment Bills, SMC has created new legal entities, dedicated secretariat and a few more "C"s such as Inquiry Committee or IC, Disciplinary Commission or DC, Health Committee or HC, Review Committee or RC, Interim Orders Committee or IOC, just to name a few. However, all these "C"s will lead to a higher "C", that is, higher cost. I will like to ask the Minister who would fund the additional costs? Do we expect the patients who complain to pay? I hope not.

Based on the 2018 annual report of the SMC, it has an accumulated surplus of $4.9 million as of 31 March 2019. Yet, SMC received a grant of almost $1.9 million from MOH in 2019. Why is this so? Do we expect the taxpayer to pay for the additional costs of the SMC? I hope not.

As of 2018, there were 11,461 fully registered doctors in Singapore and almost of half of them were specialists. So, we have 11,461 doctors, half specialists. What I am going to suggest next will not go well with the doctors, including the physician that will examine me at my next medical report or medical check-up. However, in the larger interest of Singaporeans, I will like to suggest each of the doctors pay an additional $300 annual fee to the SMC. Three hundred dollars per year might be a small proportion of the doctor's annual income. But, it will contribute $3.4 million a year to SMC and that might cover the additional costs to better the complaints by the patients. I hope the doctors can understand and will not pass this additional fee to their patients. Mr Speaker, Sir, despite my above clarifications and suggestions, I support the Bill.

4.28 pm

Mr Louis Ng Kok Kwang (Nee Soon): Sir, in recent years, the Singapore Medical Council or SMC has faced several questions about his disciplinary process. Some cases brought to the SMC has taken a long time to resolve. It has created agony for some patients and doctors who wait up to seven years for justice to see its day. For several doctors, they question whether justice is even on the table and some cases brought by SMC were misguide and ended up being overturned by the High Court.

The Medical Registration (Amendment) Bill is a step in the right direction. It helps the process produce fairer, quicker and more consistent outcomes. I support the Bill and I would like to thank MOH for convening the work group to review the taking of informed consent and SMC Disciplinary Process in March 2019. The work group engaged doctors, doctors' associations, patient advocacy groups, lawyers and members of the public, producing a rich report whose imprint is clear in this Bill. That is it. I have some points of clarification on this Bill.

My first point relates to manpower, as many have raised before me. This Bill adds several layers to the SMC's disciplinary process to reach its conclusion. A given case may not pass through as many as six committees, the Inquiry Committee, Complaints Committee, Review Committee, Health Committee, Interim Orders Committee and Disciplinary Tribunal. By my count, a case may require as many as 17 different committee members not including experts or lawyers. Some new measures will help with staffing, such as lifting the limits on the number of non-SMC members who can join the Complaints Panel. But, I worry that this is not enough, after all, we are talking about a status quo where lack of manpower has delayed the process by years.

As such, I have two questions. One, of the non-SMC members appointed to the Complaints Panel in 2019, how many were doctors and non doctors? I ask this because we are lifting the limits on these numbers, but the change will not help if each number is currently nowhere near its limit.

Two, how many Complaints Panel members does the Ministry aim for the Complaints Panel to have in 2021? What steps will the Ministry take to achieve this target?

My second point of clarification is on the purpose of the Inquiry Committee.

This Bill introduces the idea of the Inquiry Committee. Any time a case reaches the SMC, two doctors from the Inquiry Committee will decide whether the case is frivolous. If yes, they throw it out. If no, they pass it to the Complaints Committee to investigate.

But do we actually need it? According to the work group, only 7% of SMC complaints have been dismissed as frivolous or vexatious. For the other 93% of the cases, this new proposal adds five weeks and two doctors without actually changing the outcome.

This does not help SMC's manpower problems. Instead, it makes them worse. I have to agree with a group of doctors interviewed by the work group who has said that a new committee is not the solution.

The most elegant solution, in my view, is to skip the creation of the Inquiry Committee. We let the Complaints Committee determine whether a case is frivolous but set a deadline of three weeks for them to do so. If the case is not frivolous, they seamlessly continue their investigation. This way, we keep the committee sensitive to time and focused on tasks while avoiding the work of forming new committees and the friction of transferring investigations between them.

If we do decide to keep the Inquiry Committee, I have two questions for the Ministry. Firstly, how many cases does the Ministry forecast will reach the Inquiry Committee but not the Complaints Committee? Secondly, there is an existing problem of some Complaints Committee members avoiding risky decisions and passing the buck to the Disciplinary Tribunal to make a decision, according to the work group. What will be done to ensure Inquiry Committees avoid this same exact practice?

My third point of clarification relates to the dismissal of frivolous, vexatious, misconceived or non substantive complaints by the Inquiry Committee. The Minister had earlier addressed this point substantively and I just wanted to confirm that the Inquiry Committee will share its decisions and reasons with the complainant when it dismisses the complaint.

My next point was addressed by the Minister about the legal advisory unit and I will move on to my fifth point, which is about the avenues now available to the medical council in serious cases.

It can do two things currently. Firstly, escalate a complaint to the President of the Disciplinary Commission and it can do so when the doctor has a criminal conviction, caused the death of a patient, is the subject of an adverse finding by a coroner or is assessed to pose some other serious threat to patient health. Secondly, seek interim orders that can suspend a doctor or impose conditions on a doctor's work. It can do this when it determines that the order would protect members of the public or otherwise serve the public interest.

I have three questions on this point.

One, when is it appropriate for the medical council to choose not to escalate matters to the Disciplinary Commission? The existence of discretion suggests that it is sometimes acceptable to the medical council to avoid escalating the matter even when a doctor has caused the death of a patient or has been convicted of a serious criminal offense. What factors mitigate against the severity of such incidents?

Two, what are the envisaged cases where an interim order is required and it is deemed "necessary for the protection of members of the public or otherwise in the public's interest"? What factors or principles should guide the consideration of the Interim Orders Committee?

Three, when should the medical council escalate matters to the Disciplinary Commission as opposed to seeking interim orders? If a patient's health is being threatened, these two avenues are available to the medical council. Can the Ministry provide examples where it would be more appropriate to pursue an escalation to the Disciplinary Commission as opposed to seeking interim orders?

Sir, I believe that this Bill will lead to better outcomes for both patients and doctors and I stand in support of it.

Next, I also thank the Ministry for the direction taken in the Civil Law (Amendment) Bill towards a more patient-centric approach. This is consistent with the growing international consensus on the need for greater patient autonomy and informed consent.

My only concern on this Bill is again on manpower and time constraints doctors face.

I understand that doctors have significant concerns on how to meet the proposed patient care standards given the manpower and time constraints doctors face.

The current doctor-patient ratio in Singapore is one doctor for every 444 patients or 2.3 doctors for every 1,000 patients. In comparison, there are 2.8 doctors for every 1,000 patients in the UK. The European Union average ratio is 3.8 doctors for every 1,000 patients. The OECD average ratio is 3.5 doctors for every 1,000 patients.

At the same time, I understand that doctors have very limited consultation time with their patients due to their workload.

With a short amount of time, doctors are expected to assess needs, comb through a vast amount of medical history information that may be available on the National Electronic Healthcare System, explain the situation and assist patients to make informed clinical decisions. Due to consult time constraints and possible differences in language and levels of understanding, patients may not be able to convey their concerns well enough to their doctors as well. Doctors similarly may not be able to extract enough information to understand every aspect of the patient's concerns.

Time is also required to build understanding and to build confidence in the patient to undergo a recommended treatment. The stress of having to meet hospital KPIs measured in terms of consult time and manpower may also be overwhelming.

I understand some doctors fear what is reasonable to the court may in fact be humanly impossible to achieve. They also fear that such expectations can lead to further burnout amongst doctors. If the calibration is not done well, this may tilt the balance towards doctors practicing defensive medicine while simultaneously managing consultation time.

Can the Minister share what additional support will be given to our doctors to allow them to meet these enhanced standards of advice that is required to be given to our patients? For example, will the doctor-patient ratio and consultation time be increased in public hospitals?

Can the Minister also provide assurance that practical circumstances of doctors will be taken into account when assessing the reasonableness of such advice?

Sir, Minister Edwin Tong said himself in a speech in 2019 that doctors must be able to trust the system and that if it is not clear what standards are required of doctors, doctors may end up giving more information than necessary. He said, "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."

I hope we will provide a framework for a system which doctors can trust and that would be fair to the circumstances they face. The system should take into account practical constraints, patient's preferences and the types of medical procedures.

Sir, notwithstanding these clarifications, I stand in support of both Bills.

Mr Speaker: Mr Vikram Nair.

4.37 pm

Mr Vikram Nair (Sembawang): Mr Speaker, I rise in support of this amendment Bill. I declare my interest as a dispute resolution lawyer whose law firm advises on medical negligence cases.

I think many of the earlier speakers had focused on the Medical Registration (Amendment) Bill. I will discuss a little bit about the Civil Law (Amendment) Bill.

The Civil Law Act is an old piece of legislation dating to 1909 and it provides rules covering a very wide range of discrete civil law issues that were not otherwise clear in the common law or in the legislation. This includes provisions giving the Courts power to administer equity and law at the same time, rules on the calculation of limitation periods for actions, administration of insolvent estates, rules on enforceability of gaming contracts, assessment of damages and contracts by minors.

Each of these provisions addresses specific matters that were live issues at the time of legislation but have since become part of the rubric of our laws, co-existing with the other existing rules. Today, a very specific rule relating to the test for issuing medical advice is joining this tapestry of other rules that form part of the Civil Law Act.

In the slightly older days when I was studying law in school, the classic "Bolam" test applied to every stage of the medical process, whether it was diagnosis, giving advice or treatment. This test was first articulated in the English case of Bolam v Friern Hospital Management Committee in 1957. This was essentially a test that if the doctor's actions were supported by a reasonable body of medical opinion, he would not be liable.

This was subsequently modified by a test called Bolitho, which said a doctor's decision must also be logically arrived at. This test for medical negligence was commonly known as the Bolam-Bolitho test. Typically, claims against doctors would proceed with parties engaging expert witnesses to assist the court and determine what this reasonable body of medical opinion was in relation to the actions in question.

The Bolam test was devised under circumstances where it was assumed the doctor would play the most significant part in all decisions. However, modern medical practice has very sensibly developed to give patients more choices in this process and in particular, for doctors to actually advise patients on treatment options available and the risk of each, while empowering patients to make the decision.

This means significantly different considerations ought to apply when a doctor is giving advice as opposed to other matters such as diagnosis or treatment, where the patient may have no say. If a patient is being diagnosed, that is very much in the doctor's hands. If a patient is being treated, that is again in the doctor's hands. But where a decision is being made, that is in fact a joint effort.

For example, where a patient has severe knee pain and a knee replacement may be an option, a doctor would likely advise the patient on a range of alternatives from surgery, including other ways of living with and managing the pain. The patient will ultimately make the decision on whether he prefers to go for surgery or deal with one of the other options.

If he opts for surgery, then of course the surgical process itself will be entirely in the doctor's hands. The doctor would then be required to comply with the required test set out in "Bolam" to carry out that surgery. However, if the patient suffers from complications from that surgery even though the doctor took all steps that a reasonable body of medical opinion would support in the course of that surgery, then the doctor would not be liable. The decision for making that surgery, if made by a well-informed patient, would not be the doctor's fault.

This was, in fact, the way the current test as we understood it developed. In fact, this development of the test was relatively recent. In 2015, the English Court of Appeal articulated this modified test in a case called Montgomery, where it set out a doctor's duties in relation to giving patients advice was actually to properly inform patients of the treatment options and the risks involved.

In 2018, in the Hii Chii Kok case, which I think the Minister mentioned as well, the Singapore Court of Appeal was faced with a similar issue and again, it identified clearly the three different stages of the medical process – diagnosis, medical advice and treatment – and said that a different test ought to apply when we are talking about the giving of medical advice.

This is what brings us to where we are today. In the Civil Law Act, what we have now is an amendment proposed specifically to alter the common law test in relation to medical advice. It does not change the common law test in relation to diagnosis or treatment. To me, this amendment is not so revolutionary and in some ways, to me, it looks like it is very consistent with the development of the law, including the developments by the courts in both England and Singapore.

I note that the Civil Law Act is stated to replace the common law insofar as it is inconsistent but I think it may be helpful if the Minister could clarify how different this in fact is from the existing common law test, say, in Montgomery or Hii Chii Kok in relation to the giving of medical advice. Although I think it is helpful to have this test set out specifically in legislation and also to have specific limbs stating exactly when and how the doctor should give information, to me, I think this is not a revolutionary change but rather a clarification of the common law position.

There is always a challenge because in practical terms and I think many of my friends alluded to this. Doctors may get concerned about how much information they need to give and to what extent they have to advise patients of every single available option. In my understanding, case law is quite clear. You do not have to actually inform patients of inconceivable risks and you do not have to give every footnote in the textbook. But I think if there is indeed a concern that defensive medicine is going to develop, then it is necessary to prevent that.

Defensive medicine is of course a concern because if doctors prescribe a range of expensive diagnostic tests, most of which do not yield any results and feel compelled to give detailed pros and cons, this is definitely going to raise medical costs for the patients without necessarily giving better outcomes.

So, to me, the test put forward by the amendment to the Civil Law Act is a sensible and practical one. In my view, it is largely consistent with the common law and I think it places risk in the right places. So, risk for diagnosis and treatment is largely with doctors. In the making of medical decisions, the doctors' duty is to inform and give the patient enough information to make the right decision. But ultimately, the patient makes that decision. So, this is the called patient empowerment. And I think this legislation helps in that process. So, for that reason I stand behind it.

Mr Speaker: Before I call for a break, Senior Minister of State Koh Poh Koon, would you like to make a clarification?

The Senior Minister of State for Health (Dr Koh Poh Koon): Thank you, Mr Speaker. I was not preparing to make a speech during this debate, but Mr Murali made a reference to a sharing I had with him yesterday at the tea room. And I thought it is useful for me to take this opportunity to share a larger context of what the conversation was because I think it adds texture to the debate.

For many in the House who may not be practising doctors – and I think I am going to say this as a doctor who has been dealing with informed consent for many complicated procedures, performing abdominal surgery – in the context of sharing, it is about when sharing more information can sometimes lead to paralysis. I think Mr Murali made the point; situations where a doctor may use therapeutic privilege to withhold information from patients.

I share this story of many old patients who may be afraid of going for surgery. And I think many of us who deal with elder patients will recognise that there is a subgroup of patients who are afraid of hearing the big "C" word – the word cancer. Sometimes, the word "cancer" would then force them into denial. They will refuse treatment, to their own detriment. Many family members in this context in Singapore which is very much an Asian-centric population where the patient relies a lot on their family members for a lot of social support and family members naturally will come to the doctor and say, "Please do not tell my mother or my father he has cancer". Because they know their parents better, they know that if the parents were to hear about the "C" word, they will deny treatment, they will insist on going home, and I think the doctor also knows in this situation, that the patient will ultimately be harmed by refusing surgery, by going home where they have an acute abdominal situation.

I think in this situation, it is where the doctor spends time talking to the family instead of maybe just the patient alone, to help the family to understand the context in which the decision has been made and why a surgery is necessary.

There are times in which we withhold a lot of the details of informed consent with that particular patient who may be in denial but who needs surgery urgently to convince the person to go for life-saving surgery. I think it is in that context where the doctor himself may take on some professional risk as well. But ultimately as doctors, we take the Hippocratic Oath seriously. Our job is to first, be a patient advocate. I think if all of us here, with aged parents, put ourselves in the shoes of a son or a daughter knowing your parents will refuse surgery if they know about the full context of what they are going to go through for the next three hours under the anaesthesia, I think you understand what I mean by saying that there are situations in which the doctor must make a difficult decision to put himself, probably at professional risk for the sake of the patient.

And this is why in this Bill, the construct of a professional value of opinion is still important. Even as we try and shift some of the focus to become more patient-centric, we hope that doctors will not take a defensive approach, but will still continue to advocate the benefits of patients. Mr Speaker, thank you very much.

Mr Speaker: Order. I do need to take a break now. I suspend the Sitting and will take the Chair at 5:10 pm.

Sitting accordingly suspended

at 4.49 pm until 5.10 pm.

Sitting resumed at 5.10 pm.

[Mr Speaker in the Chair]

CIVIL LAW (AMENDMENT) BILL

Debate resumed.

5.10 pm

Mr Yip Hon Weng (Yio Chu Kang): Mr Speaker, Sir, I rise to support the Bill. Prior to being a Member of Parliament, I spent many years working as a civil servant in MOH. I can attest to the fact that the practice of medicine is complex. And many aspects may not be easily understood by the general public. A comfortable and trusting relationship between a doctor and a patient is thus very important to bridge this knowledge gap.

Most people, especially the elderly, hold doctors in high regard. However, those who have elderly family members know how challenging it is to convince seniors to consult a doctor or even go for medical assessments. It is worse if the patient is in a state of denial or lack insight.

But in recent years, trust between doctors and patients has been somewhat eroded by a spate of high-profile cases of negligence and unethical practices. There have also been reports of near misses and errors in the prescription of medicine. Hence, the younger generation when accompanying the elderly would often read up on the Internet beforehand. Thereafter, they may ask probing questions often to the chagrin of the doctors. This may then create simmering tensions between parties if there are disparities in treatment goals.

Mr Speaker, Sir, one way to improve the doctor-patient relationship is through good communication. An important area is in the area of consent. I hope the Minister would look into how guidelines can be drawn up for doctors to obtain informed consent, especially in cases where language barriers can be a challenge. Of course, the dilemma is how to provide information that is relevant to the patient to allow an informed decision. This is particularly so for elderly patients.

Taking a step further, I hope the Ministry can support healthcare institutions, especially those frequently used by our seniors, to reduce communication barriers. Every clinic should have at least one person on duty who is trained to speak in the different dialects and local languages 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. It is heartening to read that in Changi General Hospital they were experimenting with i-COMM, an AI to produce communication apps for dialects and mother tongues. We can surely leverage more on technology to help us in this endeavour.

Another crucial factor to improve good communication is for doctors to consider the patient’s profile when obtaining informed consent. The doctor should also consider if such a patient is well-informed, educated or able to understand what is being communicated. It should be emphasised in the Ethical Code and Ethical Guidelines on informed consent that a doctor should consider his patient’s profile when informing them about their medical condition and treatment options.

An example would be elderly patients who may not have completed their formal education. I see many of such seniors in Yio Chu Kang today. They may require an approach where doctors exercise professional judgement by taking into account the benefits, limitations and risks relevant to them and translating that into recommendations. On the other hand, a younger, educated and well-informed patient may prefer a more detailed description of the benefits, limitations and risks to be explained to them. With this knowledge, they will then make their own decision and assessment.

Mr Speaker, Sir, allow me to address the question of complaints against errant doctors. In case of suspected misconduct, patients should not have to face unduly onerous rules to lodge a complaint or request an investigation. On the other hand, I am against families or patients who abuse the professional disciplinary process when their informed choice of treatment did not give the desired outcomes. A balance needs to be struck where a patient has access to justice under a robust system, yet does not abuse the process and take up resources that can be better deployed.

Can the Minister help the House to understand what is the estimated time for an investigation to be concluded at present? And how will this timeline affect any current backlog of cases? It will also be useful if the Minister can share with us plans to clear the backlog.

Next, how can we simplify the process so that it would not be so onerous that it would turn away a complainant from highlighting dangerous practice? I note that cost orders may be imposed if a complaint is found to be frivolous. This should be made known to a complainant, before he proceeds with his action.

Mr Speaker, Sir, anticipating and addressing potential challenges in mediation can make this a meaningful and useful option. I can personally attest to the benefits and advantages of mediation, having served as a mediator in the Community Mediation Centre at MinLaw. We should ideally keep the cost of mediation affordable for patients to take up this route. The ease and relative advantages of mediation should be emphasised. Often, medical disputes arise due to simple miscommunication. Mediation can help to avoid an ugly law suit.

Tapping on the Singapore Mediation Centre or SMC is a good option as the SMC already has expertise. Mediators from the SMC could benefit from training to equip them with knowledge and sensitivities to handle medical-related disputes. I understand that MOHH likewise has a Healthcare Mediation Scheme. Whilst the fractured relationship rarely fully heals, I know for a fact that mediation goes some way in allowing parties to talk face to face and rebuild trust.

In conclusion, I must put on record in Yio Chu Kang Single Member Constituency, we have many pleasant encounters with caring and dedicated healthcare professionals. I believe it is timely that we address all the above issues so that we can further grow the mutual respect between the patient and the doctor in our healthcare system.

5.19 pm

Mr Xie Yao Quan (Jurong): Mr Speaker, Sir, I declare my interest as an administrator in a public healthcare institution.

Sir, as our population ages, the number of healthcare encounters in our system will only go up. And as more patients face not one, but multiple conditions interacting with each other in complex ways on the one hand and as therapies become more advanced on the other, the healthcare decisions that doctors have to make will only become more complex.

In other words, this debate about regulating the professional and ethical practice of medicine in our society is not taking place in a static context, but in an operating environment that will become more demanding and more complex going forward. It is therefore a timely debate and one that we must get right, because the stakes are high and will only get higher.

Against this backdrop, we must guard zealously against defensive medicine, because it is bad for everyone.

The US Congress' Office of Technology Assessment defines defensive medicine as occurring when, and I quote, "doctors order tests, procedures or visits, or avoid high-risk patients or procedures, primarily to reduce their exposure to malpractice liability." This was published in 1994. And so, the problem of defensive medicine is a longstanding one. And as Minister Gan Kim Yong noted in this House last year, defensive medicine "will not only affect doctors, but ultimately compromise the quality of medical care, raising medical costs and harming patient welfare."

In short, defensive medicine is bad – it is bad for the patient; it is bad for the healthcare professional and it is bad for the system.

Now, as an example of defensive medicine and this is anecdotal, in one hospital in Singapore, there is a large number of a certain scan that is ordered each year to look for a particular condition of the lungs. From my understanding, the pick-up rate from these scans at the hospital has been less than 10% compared to around 25% in the best centres worldwide. In other words, doctors at the hospital are frequently ordering the scan and a rather expensive one at that, but rarely, finding anything adverse.

This is a specific type of behaviour in defensive medicine known as assurance behaviour. The Minister, in his Second Reading speech just now spoke about a study showing avoidance behaviour, that is when doctors do not order a test when it is appropriate to do so. Assurance behaviour is the opposite, when doctors order tests when it is not entirely appropriate. And yes, it seems to be happening here in Singapore.

In 2017, a major paper published in the Lancet presents compelling evidence on the overuse of medical services around the world. First, there is overuse of medication, the best-documented example being the inappropriate use of antibiotics.

Second, there is overuse of screening tests, even for cervical and breast cancers, and screening colonoscopy. In one country, it is estimated that up to 99.9% of thyroid cancers detected there by way of the aggressive use of ultrasound screening represented over-diagnosis.

Third, there is overuse of treatment procedures. For certain cardiovascular procedures, up to 20% of the procedures ordered have been found to be inappropriate across various countries, despite clear and broadly accepted criteria for what is appropriate.

Now, the study observes that the harm to patients caused by overuse can be physical, in the form of side effects and complications, financial and psychological. The paper concludes that, and I quote, "The provision of medical services that are more likely to cause harm than good is a global problem that afflicts rich and poor countries alike."

Sir, the amendments in these Bills have been made amidst a significant level of disquiet in the medical profession.

The high-profile decisions last year, around specific issues of informed consent and patient confidentiality, had brought this disquiet to the fore, but I think it stemmed from a broader uncertainty about standards of care and a general gap in confidence in the professional disciplinary process and its outcomes.

Members before me have spoken on the merits of specific amendments and I will not belabour these.

I think the amendments, as well as the non-legislative measures, as a whole, are decisive and better grounded in practice realities. I hope this would help restore trust between doctors and the regulatory system and arrest the risk of us sliding further towards defensive medicine, to the detriment of both patients and professionals.

As the hon Member Dr Tan Wu Meng puts it, we must help doctors to help patients, because this is the way to help both doctors and patients.

That said, we must avoid swinging to the other extreme, where patients without medical training or deep resources are left to feel like their access to justice in this system has been compromised. When something goes wrong, we must have a system that works for both patient and doctor.

So, for instance, while I welcome the proposal for an Inquiry Committee to act as a first and efficient level of triage for the merits of a complaint, prima facie, complete facts will become crucial for the Committee to effectively perform its intended function.

I therefore urge the Ministry to look into providing resources to guide lay complainants through the filing process, especially in providing supporting documents and other evidence. This is a key detail in implementation that would safeguard patient welfare.

But while we strike that fine balance at a system that works for both doctor and patient, ultimately, the panacea against defensive medicine cannot be about enhancing a system of recourse and justice for times when something goes wrong. Rather, our surest inoculation against defensive medicine must be that broad public confidence that in our system, things would by and large, and almost always, go right. More to the point, when I am the patient, I must feel that things would go right, for me.

Objectively, this must mean that our system has high standards of quality and safety. Dr Tan Wu Meng has spoken about the roles of both the individual and the system to achieve these. But more viscerally, this is also about the deep human-to-human relationship between patient and doctor. This is why we talk in terms of care, instead of just treating an illness. This is why we talk in terms of the experience, instead of just a consultation or a procedure. And this is why there is a whole emerging field on empathy in medical education – systematically teaching doctors about kindness and compassion. This is why a doctor's "bedside manners" matter so much to us.

Indeed, at the University of Texas at Austin, their Medical School and the College of Fine Arts have joined forces to form a Design Institute for Health. It is their way to deliberately bring design sensibilities into healthcare, because design is ultimately about addressing human needs, and they have recognised that healthcare is first and foremost about the human relationship. It goes well beyond a transaction, or a delivery of service.

And if we think about it, our healthcare system is essentially the sum of millions of these relationships, exchanging value on a daily basis and at a micro-level. And so, the system can only work effectively and sustainably when these relationships are thriving, on the basis of a high level of trust. So, when all is said and done, it is time to double down on trust. It is time to double down on both the human relationships and the professional quality in our system.

Amongst hospital management teams here, there is a common saying: we aspire to provide "care that is good enough for my mother". And then someone said, perhaps it should be care that is good enough for my mother-in-law. Well, I shall leave it to Members to mull over the material differences. But it is a case of differences but same same. The essential point is this. Beyond legislation and policy, institutions on the ground are working relentlessly at high quality and quality relationships, creating care that is good enough for our own loved ones.

Mr Speaker, Sir, let me conclude. The ultimate paradox for the enhancements in the Bills before us is that one hopes to never have to use these, for when these are invoked, it means a care relationship between doctor and patient has broken down. In such a situation, our structures and processes must become a back-stop, to serve justice efficiently and consistently.

In turn, this prevents the loss of trust in one relationship from spilling over into and eroding the larger system.

All stakeholders – doctors, patients, the professional self-regulatory system, healthcare institutions – all of us need to work hard to maintain and grow this trust, because it is our surest way to guard against a regression into defensive medicine.

Trust is our ballast for a sustainable and effective system to secure our healthcare future and meet the many complex challenges ahead. Sir, I support these Bills.

5.31 pm

Dr Lim Wee Kiak (Sembawang): Mr Speaker, Sir, I rise in support of the Bill. I would like to assure the Member who spoke before me that we will provide care for all mothers, fathers, mothers-in-law and fathers-in-law as well.

First, let me just begin by declaring my interest as a member of the medical profession. The amendments are timely as there is a need to enhance the legislative processes to protect patients’ rights as well as to preserve the trust between the doctors and the patient. Currently in Singapore, there is a stable trend of medical complaints against doctors at an average of 214 cases per year over the last five years, range 161 to 259. This translates to 16 complaints per 1,000 medical practitioners. About 20 cases or about 10% of these complaints are categorised under “No/Inappropriate or Inadequate Informed consent”. While the trend is stable now, we are deeply concerned that cases may increase in light of the experience overseas.

Allow me just briefly to share with you what happened in UK, the National Health System or NHS has reported in 2015 that a study found that negligence claims against NHS doctors due to failure to inform patients before they consent to procedures have spiralled upwards since the landmark legal ruling in 2015.

This research was done by Queen Mary University of London, found that while the rate of other claims has remained steady, cases relating to consent have risen fourfold overall since March 2015 – where failure to inform was added as a contributory claim, the rise was nearly tenfold. As a background, let me share that this change follows a landmark Supreme Court judgment – known as Montgomery judgment – that changes the legal test for determining what is sufficient disclosure before consent is given to treatment, by moving away from asking what a reasonable doctor would warn and asking instead to what a reasonable patient would expect to know. It would be relevant to add to my understanding that even the wisdom in the Montgomery case now is an issue being debated in the legal circles.

The key is how is a doctor to strike a balance between an information overload for the patient versus too little information. With all due respect to all our patients, they are all different. Some may not understand the choices before them, especially where the choices are scientifically complex. And doctors would only be adding to emotional burden of the patients, causing alarm and confusion unnecessarily. Hence, the materiality of information is a real challenge.

Of course, the patient could have his family members or her family members to explain to him or her and hopefully there is no loss of critical information in the course of the communication. For many healthcare practitioners, working with seniors and foreign patients who do not speak any of our four national languages poses one of the greatest challenges. In a small clinical set-up, there is simply a shortage of resources with the necessary interpreting skills as well. And medical terms are complex. In cases of complications as a result of lack of informed consent, who would be liable? The doctor for failing to obtain the consent, or the interpreter for misinterpreting?

Apart from doctors, patients too would have a responsibility to share more about their personal health, for example, their health history and habits which in a consultation in the presence of family members the patient may not find it convenient to share their full disclosure to the doctors.

With increasing medical litigation, the medical indemnity insurance premium paid by doctors are also rising exponentially year after year. In US, the annual medical indemnity insurance premium paid by practising obstetricians last year can be as high as a quarter of US$1 million per year. Many of the US O&G specialists gave up practising obstetrics simply because they just find that their earnings are not enough to cover the premiums or the risk being sued is too high to bear. I hope in Singapore, we will not move in that direction. If we do, ultimately the consumers, our patients, will bear the cost.

In the last two years, I and a few Members of Parliament brought up in this Chamber the inappropriately harsh penalties given to doctors by Singapore Medical Council's Disciplinary Tribunal and we were concerned with the rising trend. This will lead to defensive medicine if left unchecked and a further escalation of medical costs to all of us. I would like to thank MOH, especially the work group on this amendment for their hard work meeting so many stakeholders and holding so many focus groups discussions to bring to this House today this amendment.

This amendment will affirm our patient’s rights and at the same time give some clarity and assurance to our medical fraternity on a fair and expeditious system that handles medical complaints by SMC.

I have three clarifications.

Number one, the increase in cost and resources to SMC. According to SMC annual report, SMC spent nearly $2 million in 2017 and $1.6 million in 2018 for legal expenses for disciplinary proceedings.

The setting up of more layers to handle public complaints will require more manpower and resources. What is the estimated increase in running cost of the SMC when this legislation takes effect? Can MOH give more grant to SMC to offset the increase in cost? The changes also call for more doctors to come forward to serve on SMC’s committees. Currently, how many doctors are serving on the SMC to handle public complaints? How many more doctors will be required with this new proposal? What are the plans? What plans do MOH have to increase the number of doctors serving in these committees and how do you attract them?

With increasing cost involved, will SMC consider levying a small administrative fee for public to file their complaint? Just like CASE or Small Claims Tribunal. By charging a small fee, it may also deter frivolous complaints too. I know for now MOH is not considering leveraging an administrative fee for public who file complaints but I hope MOH will consider this later?

Number two, on medical records. In one of examples cited in the legislation stated by the Minister just now, it states that the doctors need to go through old medical records to sieve out information which may be material to the case. In the example given, a patient with history of eczema had skin complications after undergoing an orthopaedic surgery. The orthopaedic surgeon is liable because the surgeon failed to look through the old notes which stated the patient had eczema recorded many years ago. I would like to seek clarification on this example as some of our patients with chronic diseases may have decades of medical history running into many volumes of clinical records. Is it the duty of the doctors to go through all old notes even stored in microfilm? I know as a medical practitioner we are required by law to keep our medical records for seven years. Is there a time bar for the medical records in this example?

Number three, mediation. I am supportive to have mediation as a mechanism to resolve some of these complaints before the case is being escalated to the Disciplinary Tribunal or the Courts. For mediation suggested in this amendment, is it mandatory? Is there additional cost involved in mediation? Currently, our medical indemnity insurance covers doctors for medico-legal claims but I understand from some of my medical colleagues, the insurance companies are not obliged to accept mediation and may not pay for any cost involved in mediation. Can this legislation make mediation mandatory and also make it mandatory for medical indemnity insurers to honour and cover the cost of mediation if mandated by SMC? Mr Speaker, I support the Bill.

5.40 pm

Mr Zhulkarnain Abdul Rahim (Chua Chu Kang): Mr Speaker, Sir, I rise in support of these amendment Bills. I thank the Second Minister for Law for the explanations to the amendment Bills.

I note with interest in the Medical Registration (Amendment) Bill, the introduction of an Inquiry Committee in the proposed framework for the Singapore Medical Council’s Disciplinary Process as envisaged in the Bill. This new committee would sift through at first level, those frivolous and vexatious complaints before they even reach the Complaints Committee.

The Inquiry Committee would thus be able to either dismiss a complaint, issue a letter of advice or refer the matter to the Complaints Committee and also to refer for mediation. The Inquiry Committee would also be able to refer the matter to mediation before making these orders. To prevent the filing of frivolous and vexatious complaints, the Inquiry Committee and the Complaints Committee also have power to order costs against the complainant.

All of these measures are necessary and welcomed. They balance both the interests of the patient or the family, usually the complainant, and that of the doctor being complained of.

I draw parallels between this Inquiry Committee and that of the Review Committee of the Law Society of Singapore. We can draw lessons from similar amendments to the Legal Profession Act or LPA. Those amendments were back in 2001 which had introduced a Review Committee. The function of the Review Committee in the LPA is also to review each complaint and dismiss those that are "frivolous, vexatious, misconceived or lacking in substance".

In a 2018 Court of Appeal case Re Nalpon, Zero Geraldo [2018] SGCA 71, the decision of a Review Committee in the LPA was challenged by way of a judicial review. The case involved a complaint against lawyers by another lawyer. The complainant challenged the decision of the Review Committee, saying that it had made its decision in just seven days, provided only a brief statement of its decision and did not even call the complainant or the lawyers that was the subject of his complaint to provide any further information or clarification. Although the judicial review challenge ultimately failed before the Court, the case highlighted the risk of protracted litigation if the first stage of the Review Committee and, in this case, the Inquiry Committee does not sufficiently manage or meet with the complaint's expectations, especially in those cases involving lay persons and grieving families.

It will help to conclude the matter efficiently, but for complainants, especially the families, they need closure sooner rather than later.

A couple of weeks ago, a resident informed me that her pregnant sister-in-law suffered severe bleeding while under the care of a hospital. She delivered her baby prematurely and because of some complications, the baby now suffers from permanent brain damage. They are a young working couple and that was their firstborn. They are now questioning the standard of care that they were given.

In the past month, I attended a wake of a deceased elderly parent of a long-time resident of mine and volunteer. The daughter questioned whether early detection and intervention by a particular doctor would have saved her mother’s life. These are questions that families in grief are grappling with.

These families may or may not probe further or proceed on in their actions. But if they do, then this system of regulating the complaints against doctors and the medical profession must not only be efficient but it also must be humane in the way it explains the true situation and circumstances to the families in grief.

This Bill thus must be seen in the light of its true intentions. It is not intended to shield doctors against complaints but it is to balance all interests and ensure protection and adequate recourse for patients and families.

I say all this from personal experience. In 2011, a close relative suffered complications after surgery and passed away in the hospital. She was young. Her parents had not seen her graduate yet. She had a full life ahead of her. Naturally, in a time of tragedy and loss, the parents sought answers to explain their loss by questioning the system and the treating doctors and hospital. That process took more than two years, which ultimately found that there was no wrongdoing or negligence by the treating doctors. Although there was finality to the process, the sheer duration did not give the family any closure nor heal any wounds. Nothing can beguile parents from a loss of a child so overwhelming or assuage the anguish of their bereavement.

It is thus important to quicken the complaint process and disciplinary procedure, which is what this Bill aims to do so as well.

In this regard, I note that the first stage of the initial review and triage by the Inquiry Committee is envisaged to be completed within a general timeline of about five weeks. The second stage of the inquiry by the Complaints Committee would take another three to four months to ascertain if the complaint proceeds on to the Disciplinary Tribunal, which is the third stage.

I am heartened that a legal advisory unit will be set up to support and advise the Inquiry Committee. With greater medical knowledge and public awareness and increasingly complex medical situations, there would be more cases in which doctors may be faced with complaints. Perhaps legal aid access can also be extended and provided to laypersons who have legitimate complaints and require assistance to file complaints.

I am very grateful to Minister Edwin Tong for his clarifications and I seek the Ministry's assurance that adequate resources and manpower be provided upfront to the Inquiry Committee to cater and address these complaints filed by complainants or their families and their next-of-kin quickly, efficiently, satisfactorily, because although they are looking for a lifeline, they cannot be made to wait a lifetime. Mr Speaker, Sir, I support the amendments to these Bills.

Mr Speaker: Minister Edwin Tong.

5.49 pm

Mr Edwin Tong Chun Fai: Thank you, Mr Speaker, and thank you to all the hon Members who have spoken on this Bill and in support of this Bill.

Let me just go straight into the heart of the Civil Law Act issues raised by Dr Tan Wu Meng, Mr Murali Pillai, Mr Vikram Nair, Dr Lim Wee Kiak, amongst others. Let me start by picking up on what Dr Koh Poh Koon said. I think he has given a very vivid explanation of why doctors need to feel that they are able to take some risk with the patient, able to advance the patient's interests in the best way that they know how to do. Knowing the information that they have, making the judgement that they do. And in some ways, trying to make the best decision and guide the patient towards that best decision sometimes does require the doctor to take a position – to exercise some degree of therapeutic privilege and to assess the kind of information that ought to be appropriate for not just this kind of injury and this kind of outcome but for this kind of patient and their family and overall, not losing sight of the end outcome.

I would dare say that the majority of doctors want to be in that position where they do not have to look over their shoulder, they do not have to worry about what the patient might say and worry first about whether or not they have given everything to the patient based on the textbook. I think that is really an illustration of why the practice of medicine is truly an art and is not a science. It is an inexact art to begin with. It is a judgement call in every sense of the word.

It is in that context that we start with the proposition that we do not want to place labels on the test. It should not be pro-doctor or pro-patient. That is why Mr Pillai is right that in this Bill, we have deliberately stayed away from putting that label on. Yes, it was discussed in the context of the previous decisions. That is the terminology that has been used. The work group has also used that terminology, but we have chosen to make sure that we stay away from it – as far as we can, to advance it as a common denominator of benefiting the patient and the doctor together.

Sir, Mr Pillai asked – why change the test? What do we see as the value of making this change?

Sir, I just want to make reference to one statistic.

Earlier on, Mr Xie, Dr Lim Wee Kiak had talked about what the position was in the UK post-Montgomery, and I think there is a lesson to be learned there as well – the number of cases not just post-Montgomery but in respect of informed consent post-Montgomery. But look at the position in Singapore based on cases filed with the SMC. On informed consent complaints, there was an average of one per year from the years 2010 to 2016. It became five per year in 2017 and 2018 – roughly around the period of time that Hii Chii Kok was decided. In 2019 alone last year, there were 17 cases – 17 cases filed in respect of alleged informed consent breaches and drop in standard. That was in the year around the period of time when the Lim Lian Arn DT or Disciplinary Tribunal was decided.

To Mr Pillai's point – and I get your point that perhaps if it is just a perception, why not we just deal with the perception. But the point I am making is that the perception actually results in there being tangible impact in the way the complaints are brought, in the way that damages have gone up over the years. And so, in Singapore, between 2017 and 2019, it is a threefold increase. That is a sign that we do need to do something about it.

We therefore look at the test as trying to give doctors that degree of assurance when they first walk into a consultation room. The test starts with, as a matter of philosophy, what would my peers do in that situation? A peer might be a peer like Dr Koh's peers, who would decide that in such a situation, there is something to be gained by exercising therapeutic privilege. It is not something that patients easily understand if you look at it from the patient's perspective.

I want to make one other observation, which is that in every single case where the patient's perspective is called into question and you have to assess what is the patient's perspective – whether it is a quasi-criminal case when it is before the Disciplinary Tribunal or DT, or whether it is a civil liability case – at that juncture, when you are assessing and talking about the patient's perspective, there is already an adverse issue between the patient and the doctor. The claim has already been made or the complaint has already been made. That is why you are looking at the patient's perspective. The patient's perspective is going to be very different.

So, if you are a doctor, you think about walking into a room. You think about the therapeutic privilege that perhaps Dr Koh might think about, and then worry about whether or not at some stage downstream – not in the light of this fairly amicable discussion in the consultation room today – but you think about what might happen if you start the inquiry as, "What would that patient in that particular perspective want to know?" Then, I think the outcome might well be very different or at least perceived to be very different. There is going to be a tangible impact on the way you conduct yourself as a doctor.

We therefore want philosophically to start with giving the doctors the assurance that when you walk into a room with a typical patient, average patient, this is what the practice of peer professionals would do. As long as you conform with that as a starting point, that is your baseline. As I mentioned earlier in my speech, it is the baseline standard.

How do we assist this? Well, we also want to work with the professional bodies like Academy of Medicine of Singapore or AMS. AMS has got several chapters. We want to work with them to ensure that as far as they are concerned, for some of these more standard procedures, there is a benchmark that can be used to educate and inform doctors.

Earlier on, a Member said: let us not wait until these cases are decided by the Court, because by that time, it is too late – at least for that case. We agree. We want to proactively look at what we can do, working with the fraternity to help the fraternity understand this better. We also want to amend the ECEG as I said earlier on to give better guidance to doctors on how these guidelines are to be applied.

We want to do training. Many of the Members have mentioned and we have made a commitment to training in perhaps the boldest possible way by setting up a separate body, the Disciplinary Commission (DC), to look specifically at training, to make sure that the members who sit on the Complaints Committees (CCs), on the Disciplinary Tribunals (DTs), on the Review Committees (RCs), on the many "Cs" that someone has spoken about, are all of sufficient standard and not just at one point in time but are continually refreshed.

To Mr Pritam Singh's point about Recommendation 3 in the work group's report – yes, that is something that we will continue to look at, put in place and with due course, to have sufficient level of guidance for the medical fraternity.

Going back to this test, we therefore start with, "What would my peers do in a typical consultation like this?" But we graft onto it what we regard as giving primacy to the patient's inquiries.

If you go in and you do not say anything, we have some rules that set out what a doctor has to reasonably ascertain. I will come back to that in a moment. But if a patient asks a question directly, expresses a view or a concern, then even if that view of concern might not be regarded by the peer professional test as being material in every consultation, that still has to be answered by the doctor. That still has to be addressed by the doctor to their satisfaction.

So, if I am a doctor and you ask me about a concern that is otherwise not within the radar of the peer professional opinion, I still have to address it, I still have to get my information to you correctly on what is the risk for this particular type of very small injury, which may not be material to many other people but to this patient, it is. This is my patient, I have to address it.

That is how we strike that balance between certain starting points for doctors, but also taking into account patient autonomy.

On this second question about what might be reasonably looked at and what is material. To Dr Lim's point, we do not need to look at all the medical records, all the microfiches, all the scans. That is not reasonable. If you ask me today, standing here, can we come up with a formula for what is reasonable, I think that is not possible. I think Members know why. Because it is very situational, very fact-specific, fact-dependent. I hesitate even to say but probably the longer, further back a medical record is, the scan is – 10, 12, 15 years ago – the less likely it is to be relevant. I would not rule it out but the less likely it is. It probably would have been superseded by something else. It is really designed with the illustrations to give some degree of fluidity and some flexibility to look at the particular situation.

With this framework, and I think Mr Vikram Nair also said, actually this is something that is very familiar territory. Not every detail needs to be given and within this framework, I think most doctors, if not, at least the lawyers would know, what is the peer opinion? Who are the peers? Who would qualify as a good, decent peer? What is an opinion that is logical, defensible, internally consistent? I think lawyers all know this. Then, you graft onto it – what did the patient ask or if the patient did not ask, what is reasonable to derive from the information before you?

That is how we see the test operating. In some ways, to answer Dr Tan's point, we had to put out legislation to deal with this partly because we saw this was how it was going. We looked at the numbers that have been cited by myself and Members. We looked at observations of the work group. We understand where this is going and we understand that it might be a perception and it might well even be wrong. But that is the way in which the industry is reacting to it and I think it behooves us to do something about it. That is why these amendments have been offered.

Sir, let me now move to a point that was raised by Mr Pritam Singh about the implication of a test like this for a busy polyclinic setting. That is a fair concern and the point is taken. Anything that has got to do with putting on more workload and the workload then perhaps undermining the quality of care is something that MOH would be concerned about. And I would like to assure Members about that.

But I would also like to say that 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. That has to be the starting point. Yes, there might be an increase in workload – although I do have something to say about that in a moment – but that ought not to be the starting point. That should not drive the way we define or formulate this test. 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 first focus, and perhaps only focus, on what is good for the patient and doctor in that relationship.

Anecdotally, I also do not see this formulation adding more to the current status quo. It might add more to what might have been the old Bolam test. But on the current modified Montgomery test, I do not think this formulation would add more by way of the time that you take to consult. I have also had a quick look at the polyclinic caseload over the years and I believe the numbers have been relatively steady in the past three to five years in terms of the caseload, roughly per consultant per day. In fact, if anything, you take that back 10 to 15 years, the numbers actually have come down. But that said, I appreciate the point made by both Mr Pritam Singh as well as Dr Tan Wu Meng about looking after the systemic issues. We will do so.

Mr Louis Ng asked what might be an idiosyncratic reason. I think I have addressed this. But I will just briefly mention that an idiosyncratic reason is just a reason that is peculiar to that patient. It may not be relevant or material to many other patients or most other patients or, in fact, maybe even any other patient. But if to that patient it is, and he has asked the question about it, then the doctor is required to address those concerns.

Mr Pritam Singh also asked what do we do with a multi-disciplinary team setting. I would just like to say that, actually, in today's context, most care is given in that setting. If you go to a polyclinic, there is a team that looks after you. If you go to a PHI, a public hospital, there is also a team that looks after you. And the law actually takes that into account. The law does not require that only one doctor, the leading doctor, takes the consent. The law does accept that any member of the team can take the consent. But, obviously, the requirements of the consent-taking has to be fulfilled. You have got to give the right information, you got to ensure that the patient understands and so on. There have been several cases, the most recent of which is the case involving Dr Yeo Tseng Tsai, a decision decided last year where the Courts commented and I would just quote from a small portion of it at paragraph 50 of the Judgment where the Court says that "...in a public hospital that practises team-based care, it is reasonable for other members of the operating surgeon's team to explain the risks of the proposed treatment and to obtain the patient's consent on the surgeon's behalf." And that is a point that is quite consistent across several other decisions in the High Court in Singapore.

To Mr Pritam Singh's point that we must look at this more frequently and regularly, we agree. That is actually quite a baseline consideration, given that medical technology innovation is changing, evolving, and we do want to ensure that our system that looks after discipline has the public interest of the patients at heart, is constantly updated and kept updated with technological progress.

Mr Louis Ng asked several questions, one of which was in relation to the cases that can go directly to a DT. He asked why the SMC was allowed to retain some discretion in doing that. The answer to that is that it depends on the nature of the case and it gives the SMC some degree of latitude in terms of assessing the case. The SMC themselves will then play a more proactive role in reviewing and determining whether these cases ought to be directed to the DT straightaway.

Mr Louis Ng also asked about the interim orders and the fact that the interim orders committees have a wide remit to determine what is necessary for the protection of members of the public or otherwise in the public interest. That is put in that form so that it can allow the IOC to take into account a broad spectrum of matters, including how it affects public interest, when it might affect public interest and the kind of occasions or risk factors that a doctor is exposed to in any given scenario and, therefore, tailor the way in which the IOC orders are sought accordingly. So, we do need to give some degree of assessment on the ground. But to illustrate the point that these orders are not made lightly, Members may be aware that it has been used twice in recent times – one against Dr Wee when there was a Court decision in relation to his conduct, and there was also a case involving Dr Ler Teck Siang who was involved in the leak of data from a HIV registry. So, these were the two recent cases, by way of examples, to assure Members that this is not going to be used at a very low threshold.

Dr Lim Wee Kiak and Mr Louis Ng asked about the composition of non-SMC members currently at the Complaints Panel, and the resourcing issues that we will have to address post-passing of this Bill. Let me just inform Members that, currently, there are 89 doctors who are not SMC members and there are 50 non-doctors on the Complaints Panel. The 50 non-doctors comprised 18 legal professionals and another 32 lay persons. That, in part, also answers Mr Leon Perera's point about the way in which we will engage patient advocacy groups.

Looking at these numbers, the representation by lay persons, or rather non-doctors, is not small and not insignificant. And the role they play directly in the process in the Complaints Committee, in fact, in several other committees that are set up in the SMC, that takes into account the non-medical, non-doctor input as well.

Moving forward, once the amendments are in force, the SMC intends to have minimally 120 doctors and 60 lay persons and legal professionals on the Complaints Panel. Obviously, we look at the volume of cases to determine whether or not that will be sufficient. But looking at the statistics, the numbers and what we forecast, these are the numbers that we intend to start with once the Bill is operationalised and then we can decide whether we want to move up thereafter.

Mr Louis Ng also asked about the IC. The IC will share the reasons, as I have outlined in my opening speech, for its decision, so that members of the public who have complained and the complaint is being dismissed by the IC will be aware not only of the decision but also of the reasons for the IC reaching that view. Why the IC? The reason for the IC is that it needs to act as a stronger filter. Today, yes, we have 6% to 7% of cases that are filtered away from that. But let me cite the Lim Lian Arn example to Members. In Lim Lian Arn, the Court of Three Judges felt that there was a miscarriage of justice and one of the factors they looked at was to analyse the complaint and they formed the view that even if the complaint was taken in its extreme, that means, you accept every fact set out by the complainant as correct and true, that still does not amount to professional misconduct.

And there was a very detailed analysis by the Chief Justice in that case. And those are precisely the type of cases that we want to be able to filter at the IC. The IC, together with legal resources, we feel will be better equipped to look at these cases, apply the law to these cases early and upfront, rather than, as in the case of Dr Lim's case, have the case travel through the system for a good four or five years, using up resources in that period of time, only to be thrown out at the hearing of final reckoning, at the last stage. So, that is what we want to do – to move the decision-making, move the resourcing upfront, and have that dealt with as early as we can.

Mr Yip Hon Weng and Mr Louis Ng asked for some timelines and also about some resourcing. How long does it take for the investigation to be concluded at present? It varies. But over the last five years, based on data, the average time that it takes to conclude cases at the CC is about 18 months. Some are a little bit longer. In fact, some take more time than this.

And then cases referred to the DT take an additional 23 months. So, two more years on top of this. We are trying to put everything into a system where, on the average, between 18 and 20-22 months, we are able to complete the entire process.

In terms of cases and backlog, the SMC has been working very hard to come up with a lot more resources and they have also used standing committees for the Complaints Committee and close to 90% of the stock of outstanding complaints as at September 2019 – that means all the complaints up to September 2019 – have been concluded by early September 2020. So, we have the remainder of the last quarter of 2019 cases standing, and then we are into 2020 cases.

Over the last two years or so, the SMC had worked very hard and managed to resolve many of these cases. As I have explained to members, this new regime will not be able to apply to existing cases. So, the existing cases still have to follow the current track and the current timelines. Cases filed once this Bill is in force will enjoy the new track.

Dr Tan Wu Meng, Mr Ang Wei Neng and Dr Lim Wee Kiak are all obviously very concerned about what Minister Gan might have to do to ask Deputy Prime Minister Heng, seated next to him now, for additional resources. I wanted to say that these are changes that we have made which we believe will enhance the system. You either spend on the system having a case travel through like I have explained in Dr Lim's case and incur a lot of resources and, at the same time, you do not really get any good outcomes as far as the doctor or the patient is concerned. Rather, we think resources are better spent putting upfront legal resources, mediation resources and a good filtering system. And, yes, that requires manpower and also resources.

Some Members are concerned whether we will have sufficient resources to support the new structure. I am happy to say that MOH has said that they will not pass on these costs to the patients and, as far as possible, not to the doctors. The reason for this is because the grants have been given to SMC to look at setting up these structures to look at redeploying what we have currently used, by way of resources, to deal with the cases which have taken four, five years or so to deal with but applying them upfront. So, we feel we can manage with the current resources. If not, we can top it up with some more, and I think Minister Gan will have to approach the Deputy Prime Minister for that.

But the idea is to be cost-neutral as far as possible because we believe that this is in a public interest. It is a system meant to safeguard patient welfare, public interest and public confidence in the system. That is why, like Dr Lim Wee Kiak had suggested, we also do not want to put a financial bar in front of every complainant before you can make a complaint to the SMC. That was something that was actually canvassed quite robustly at many of the town halls to put a fee upfront before a complainant can make a complaint. But we studied it and we decided, as did the work group, that we did not want, and it was against public interest, to put a financial bar to patients to file a complaint.

Instead, we decided that we will empower the CCs and the DTs to grant costs in the appropriate cases. My colleagues, who are lawyers in this House, will know that that is used very sparingly. The power does exist in the Legal Profession Act. It is used very sparingly and, really, as a measure of last resort to ensure that these frivolous vexatious claims do not continue.

Mr Leon Perera supported the Bill and said that it is in the right directions, which I appreciate, and also raised several suggestions for us to consider. I think he had about 10 or 12 suggestions. I cannot cover them all here in today's response. But I will respond to a few.

In terms of the time bar and the limitation period, why was there a difference? The reason is because when we have a complaint, as I have mentioned just now, about a doctor's conduct, this is an issue of public interest in itself because we are talking about upholding standards and confidence in the way in which doctors give treatment to patients. So, compared to a civil or commercial time bar where you are locked out from making a monetary claim, for example, or a claim for land, you are locked out after six years or such other period as the time limitation might prescribe. Those come on a very different footing from trying to look at complaints or entertain complaints outside of the time bar when you are talking about upholding public interest.

Second, in terms of the certified training, I think I have covered part of it in my response to Mr Singh's suggestion of Recommendation 3. But certainly, that will be taken up. We do want to enhance training. It is a very significant plank of what we have proposed here, as you have heard me saying. But that should also be taken in conjunction with the sentencing guidelines that have now been issued. We also want to remind Members that we have a legal unit that will support each of the committees across the spectrum of when they review the cases.

Mr Perera is right that there are already training programmes that are on-going now today. I am told that they have been fairly well attended until there was a break during the last few months because of COVID-19. But there has also been specific training not just for the members of the CC and the DT because they require more specialist training, but also encouraging doctors, as a whole, even if you are not involved in the CC or the DT, to have at least some basic knowledge of medico-legal principles. And I think that overall, with time, would help the appreciation of the standard of care, would help in appreciation of how doctors are to interact with their patients.

Mr Perera talked about whether we could recognise the support and remunerate persons who sit in in these Tribunals. Mr Perera may wish to know that, as of now, we already give an honorarium of $800 per day to a member of the DT. For members of the CC, there is also some amount but it is smaller, having regard to the fact that they play a lesser role in a sense that their time commitment is not as severe. But it is also very difficult, as I think Mr Perera also noted, to quantify the amount of remuneration to give. When you are designing a system that is meant to be a self-regulating system, then people within that system must step forward. I heard Dr Lim Wee Kiak say that we must encourage more members to come forward. And indeed, that is true. This system is really only sustainable if the best, the most experienced, those who can afford the time and even those who cannot afford the time, should step forward and serve in some capacity in the CCs, in the DTs, in the RCs. And it is not just because of the honorarium or the financial compensation.

On the SMC composition, I mentioned this at the outset, as it stands today, the number of persons nominated by the Minister has come down, and if you take into account the fact that the representation on the professional bodies, which are themselves elected by members of the medical profession – either the Academy of Medicine, College of Family Physicians Singapore or the SMA – then I think you will find that actually, after today's amendments, the cross representation and the spectrum of representation on the SMC of the medical fraternity is far broader and the numbers elected would outnumber the numbers appointed by the Minister.

Sir, I think I have covered, as far as I can, all the critical points. I know that I would have omitted some and I beg the Members' indulgence. We are prepared, after this Bill is passed, to take any of the further suggestions offline with the Members directly because the suggestions are good suggestions. And to borrow a phrase from my colleague, "No one has a monopoly over good suggestions". So, we welcome suggestions even after the Bill might be passed. Sir, with that, I beg to move.

Mr Speaker: I thought that was compassion. Any clarifications?

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Mr Edwin Tong Chun Fai].

Bill considered in Committee; reported without amendment; read a Third time and passed.