Keynote Speech by Minister for Culture, Community and Youth, and Second Minister for Law Edwin Tong SC at Medico-Legal Society of Singapore Annual Dinner
28 Oct 2023 Posted in [Speeches]
Dr Lai Siang Hui, President of the Medico-Legal Society of Singapore (MLSS)
Dr Devanand Anantham, Vice-President of MLSS (Medical)
Mr Edmund Kronenburg, Vice-President of MLSS (Legal)
Ladies and Gentlemen
- A very good evening to everyone.
- Thank you for the Medico-Legal Society of Singapore (MLSS)’s invitation to join you this evening. I am glad to have the opportunity to be here, and renew old friendships.
- I used to do a lot of work with some of the lawyers here. Those cases were really very much a special part of my time in my career as a practising lawyer at the Bar.
- Many of you know that I was essentially on the defence side, i.e. on the side of doctors, starting from the time I was on the panel of the Medical Protection Society (MPS), around mid-1990s.
- I used to know quite a number of people from MPS. We would go to MPS once every two or three years for conferences or seminars, and they used to put us up in the most remote of all places! But it was a great experience anyway.
- I spent many years in practice, and of that period in practice, I spent many years in medico-legal practice.
- Some of my early cases, when I started, were very memorable. I once acted for an obstetrics and gynaecology (O&G) specialist. I remember that case very well, because it involved studying reams and reams of cardiotocography (CTG) scans. In fact, I became quite an expert on CTG scans, because I had to cross-examine an expert on them. So, when my wife was expecting and went into labour, I found myself scrutinising the CTG scans, to the annoyance of her doctor.
- I also saw many other cases in the areas of orthopaedics, coronary artery bypass grafting (CABG).
- There was one other memorable case. We had a laparoscopic donor nephrectomy, and it was a case on the hem-o-lok clips. We were wondering how to tell the judge what this case was all about. So, we decided to do a video of a procedure. We played it, and the judge was following very well, but her Justices’ Law Clerk, who was completely afraid of blood, looked faint initially, and then disappeared after five minutes. I was very happy to see that the judge was following, as we showed all the different clips, and the procedure. Eventually, we did succeed in that case.
- I also saw a couple of Singapore Medical Council (SMC) cases, which were memorable, only because it lasted so long! Once we ended an SMC hearing at 5am!
- I also spent some time with the Singapore Medical Association (SMA) and the Colleges, getting to know the doctors, and doing trainings for the doctors as well. The plans for MLSS that Edmund talked about – that is something that I am very familiar with. I support them fully, because I think those training sessions were really very useful.
- So, overall, I am very glad that we have an occasion like this, between lawyers and doctors, to come together and share this evening.
- Speaking of lawyers and doctors, I chanced upon a cartoon that I thought best illustrated the relationship between lawyers and doctors. Take a moment and read it for a while.
- A: “Hey Tom, I just saw a patient who thought she had every condition known to medicine.
B: “Yeah, I’ve had a few of those before.”
A: “I ended up ordering all kinds of unnecessary labs and imaging studies for her.”
B: “What made you do that?”
A: “She’s a LAWYER.”
B: “Yep. I’ve DEFINITELY had a few of those before.”
- I certainly hope this does not reflect the relationship between the lawyers and doctors too much!
- It is, in some ways, a funny cartoon. But really, there is a serious message, and the serious message is that there has to be a very strong element of trust between the patient and the doctor in any relationship. And yes, that includes when you have lawyers as patients too!
Costs of Defensive Medicine
- Invariably, and I am sure we all know this intuitively, a lack of trust in the system will mean that the healthcare costs will go up for these reasons, and the overall quality of healthcare will come down.
- When doctors do not trust what the patients will do when they walk out of the consultation, what will you do? You will probably end up ordering many different tests, more than what is necessary. So, it is basically defensive medicine.
- In the US for instance, you end up with huge amounts wasted because of the consequences. The estimates are roughly about US$50 billion to US$65 billion in wasted costs, because of defensive medicine.
- Singapore is no different. Not to the same scale, but there was a period of time when defensive medicine practice was on the rise. Anecdotally, and also when you look at the numbers, it seems to suggest that that is true.
- I spent some years at the Ministry of Health (MOH) when I was first in government. I spent about two years in MOH, from 2018 to 2020.
- When I was there, we did a number of consults with doctors and healthcare professionals. We spoke to doctors. We met with healthcare professionals. Many doctors candidly admitted that they were worried about how the state of practice was going, out of the belief, whether mistaken or otherwise, that this would reduce their legal liability. So more investigations, and more referrals.
- I think this was in part driven by some decisions in court, and in the SMC, which led to some of these outcomes – unnecessary tests, unnecessary treatments, placing a greater strain on our system, not just from the perspective of rising healthcare costs. You can imagine that we use up more resources to do investigations – MRI scans, CT scans and so on. You will use up resources, and the queue time gets longer for those who deserve and truly require medical attention.
- If you look at the Willis Towers Watson (WTW) survey – they are a leading British-American global advisory and broking company looking at global medical trends – they conducted a study with 257 insurers worldwide across different parts of the world. Singapore’s healthcare costs are expected to increase by about 10% this year, which is significant.
- We all know that we have an ageing population in Singapore. Those above 65 years old today represent about 1 in 5 in our population. By 2030, it will become 1 in 4. It is not only a rising number, but a sharply rising number. So, we can understand that healthcare costs will go up.
- But this survey was alarming for me because the cause of the healthcare costs going up was not so much because of the ageing population, but because of the use of defensive medicine. Wasted costs, wasted treatments, and unnecessary prescriptions. We cannot let that seep into our system – a system that is founded based on trust and understanding.
- In Japan, out-of-pocket medical expenses for seniors have recently increased from 10% to 20-30%. Japan is a little bit of a window into our own future because they are like Singapore – they also have an ageing demographic profile. What they are experiencing today is what we might expect to see in 10, 20 years or so.
- So, one way of dealing with this, is to develop a system that has trust as the fundamental foundation of that relationship.
- Speaking from my own experience, you look around the tables of doctors, lawyers, healthcare professionals, there is really already a lot of good capital in that trust. We just need to come closer together, understand each other better, and be able to work a system that reflects that.
- And this is why the MLSS’s mission is to bring lawyers and doctors together, for 49 years now, is so important. It is really a very honourable, and one that deserves a lot of time and expansion. I know that Edmund and Dev has a number of plans for the 50th year next year. I think this is a great motivation to really push on the work that MLSS does, in trying to bring the fraternities together.
Importance of Trust in Healthcare System
- This evening, I just wanted to take a few minutes to talk about what we did in the last couple of years to try to build back a bit more trust and confidence, and some level of objectivity in the way in which doctors and lawyers look at standard of care.
- Take for example, the law that deals with medical advice given by doctors – how they assess, what is the standard of care, how we might judge it. It is a key issue in almost every medical negligence, and in fact, features very prominently in many SMC complaints.
- For me personally, I had a very front-row seat, together with my ex-colleagues from Allen & Gledhill, because we were really at the forefront of some of the cases. I thought I would spend some moments sketching it out.
- We had the Bolam test since 1957. We are all very familiar with that. Many doctors can talk about the case a lot more than lawyers can.
- In 2001, there was a leading decision – James Khoo and Gunapathy Muniandy. It was a long judgement by High Court judge, G P Selvam. A brilliant judge, but on that occasion, there was an issue of how you will construe a scan that showed a nodule, and he decided not to accept the views of experts. I would not go into the details, but basically, Justice Selvam decided that not to accept evidence that assessed the nodule to be a tumour. He decided that it was not a tumour, but a scar. Because it was a scar, the treatment thereafter, treated as if it was a tumour, was then determined to be wrong advice and negligence. In that case, more than S$2.5 million in damages was awarded by the High Court, still is Singapore’s largest award in court on damages. It has since been overturned.
- What happened in that case, however, was unique, because we all know that Bolam test does not assess the doctors’ standard of care on whether the latest decision is right or wrong. You are not there to guarantee the outcome every time. You are there to act in accordance with what the responsible body of medical opinion and discharge that duty. If that is supportable, that is not negligence, even if you might get it wrong. That has always been the bar for professionals, whether you are a doctor, architect, engineer, and so on.
- That is why this case attracted so much attention, because the judge in this case, by deciding that he favoured the minority of medical opinion, and discounted the majority of medical opinion, and decided that it was a scar. On that basis, as I said earlier, he found that there was negligence.
- But Bolam prescribes that it is not for the court to substitute its own decision in the outcome, and that is why the case was overturned on appeal. I remember this paragraph in the Court of Appeal judgment very well – “judicial wisdom has its limits”, the court accepting that in some cases, we cannot play doctors, as lawyers. We have to accept that there are people out there, who are more skilled, more schooled, more trained in interpreting these. As long as there is a responsible body – logical, withstands scrutiny based on good evidence that says this is what a doctor would have done, this is what the doctor would have said or advised, that is not negligence.
- So, it was overturned on appeal, and the Bolam test with the legal exception was put back in place.
- Fast forward to 2015, there was a UK Supreme Court decision, called Montgomery. Montgomery was then argued in the Court of Appeal in Singapore two years later, in a case that I did. We were then confronted with a modified Montgomery position. The bottomline is that the Court of Appeal in Singapore decided that it had to depart from the old position: the Bolam test, should we adopt it in full or reject it in full, or should we adapt it? They concluded that they should adapt it, and not keep it in the form that it was.
- This was what we argued in the Court of Appeal, which I will share with you. A modified Montgomery requires the court to go into what that particular patient will need to know – the subjective construction of what that particular patient sitting before you in your medical examination would have wanted to know. That can make it very difficult for doctors, because you are no longer then assessed on a benchmark that compares you with what a fellow responsible medical professional in your field would have done. It becomes very nuanced and contextualised, based on this particular patient. In fact, the Court of Appeal uses phrases like what are the idiosyncratic personal circumstances of that patient? What are the most important reasons why this patient might or might not have wanted to know about certain things?
- That undermines predictability, which became a problem. When you undermine predictability with the best of intentions, what you will end up pushing is for people to then say, let’s try and take as much of the unpredictability out of the equation. They will say, I will err on the side of caution, I will get more tests done, I will refer to other colleagues. That was the state of play in 2017. The court decided on this, and there was a series of SMC decisions that were quite unbelievable.
- I argued this case in 2017/2018, and in 2018, I was sent to MOH. The first thing I was asked to do is to look at whether or not we should review the law.
- As I look around the room today, I remember many of you giving me views and opinions at that time. We had many dialogues and townhalls. I think it was one of the most extensive consultations we have ever done. The Committee went out to talk to lots of doctors, healthcare professionals, patients, clinicians, those in the frontline and backline, everybody.
- The conclusion was really based on a number of principles. I would not go into the legal details, but I will tell you what the principles were, and what they still are today, as we modified the system.
- First, we were of the view that the relationship built on trust was absolutely crucial, and non-negotiable. If you cannot trust the doctor when you walk in as a patient, something is wrong with the system. If you cannot trust that the patient will take your advice in the proper spirit, and not find any excuse to launch a lawsuit against you, that will be a problem. So, a relationship based on trust, and you have to maintain this very seriously.
- At the core of this is the need to have a very clear, objective standard. Objective, meaning that it has got to be something that can be measured. Take for example, if an idiosyncratic patient turns up before three doctors, you cannot have three different standards. You should have one baseline standard, and that should be the objectively verifiable, measurable standard of care that should be given to a patient.
- Of course, if a patient tells you more information than another patient tells you – I am worried about this, this is my fear, these are my other concerns, these are my other symptoms – every doctor, even if you apply the Bolam test, will of course have to take this into account for that patient when making an assessment. But it no longer becomes a different standard for one idiosyncratic patient. So, an objectively verifiable standard was the first point.
- Second, the system as a whole must work. Patients too must feel that their rights are looked after, and if they have a legitimate concern or complaint, there must be a proper avenue for this. It is not about being doctor-centric or patient-centric. The argument that was thrown at us was, MOH has turned it into a very patient-centric outcome. We said no, none of that, it is neither patient- or doctor-centric.
- We want a system where the both the doctors and the patients must be empowered properly. For a patient, if you have a complaint, you must have evidence. For a doctor, you must have confidence that the system will analyse those complaints, and give you a fair say, and an objective standard by which you will also be assessed.
- Third, the entire disciplinary process has to be efficient and expeditious. Otherwise, the process itself becomes the punishment, as has been the case in some cases where the Court of Appeal judges felt compelled to reduce the sentence, suspension or fine, on account of the delayed prosecution. I think that is not acceptable. From my perspective, it has got to be expeditious. You cannot complete all cases very quickly, because they have different levels of complexity. But within that framework, it has got to be expeditious.
Amendments to the Civil Law Act and Medical Registration Act
- With this in mind, we made a couple of amendments.
- We codified the common law, it means that we have decided on a certain standard that we wanted in law. Rather than rely on common law cases, we decided to put it in statute, and put it in a codified fashion. The codified set of rules basically sets it back to what it used to be – to have an objectively verifiable standard. That was one main objective – that we have a clear, objective standard doctors can trust and understand easily.
- The second was to strengthen the disciplinary system.
- It is still somewhat early days, but there are some positive signs. I understand that doctors seem to understand it better. There are, again anecdotally, a drop in the number of cases where you have complaints based on informed consent. I am not saying that it will go away. There will always be cases, and there will always be a need to deal with those cases.
- Again, for the medical disciplinary system, it is important for this to work well. The amount of time that some cases had taken, it did cause some disquiet, and the outcomes were also somewhat unusual.
- All of these were something we addressed. We looked at who would qualify, how we have a seamless process. If you have a seamless process, doctors faced with a very scurrilous complaint do not have to wait a couple of years for that to be dismissed. That is important, because it is a sword hanging over your practice. It is not fair either way. If a patient has a legitimate complaint – there is poor practice, patient’s safety is compromised – you do not want to talk to the doctor to be allowed to practise for another 3, 4, 5, 6 years before you take action. Likewise, if a doctor is to be absolved, do it as quickly as possible. You do not want the sword hanging for another 6, 7 years. So, the system is designed to deal with that.
- One more thing that we found out is that many doctors are a little bit worried about stepping forward to sit on these committees, so we changed the rules. We told the SMA and SMC that we wanted to keep the fundamental ethos of this being a self-regulated profession.
- We still do. That is why we opened up some avenues for doctors, not necessarily on SMC, to sit on inquiry panels, and to volunteer their time. I think that has begun to work well. So, many of the cases now, that come through that are new after this was in place, now has a faster track process.
- What we could not do was to use the new rules to deal with the old cases. In law, you cannot use a new set of rules that are passed to deal with a complaint that was filed before. So, the older cases still needed time to get through the system. I think that these are in the process of getting cleared.
- I know that there were some comments in the Straits Times about cases being still slow and so on. I am not sure that the numbers were accurately reflected. But my own anecdotal sense, as I prepared the speech, was that doctors understand it better, patients welcome the system, and those who need to go through the SMC, for whatever reason, find that it is a lot more expeditious, quicker. Over time, all of these will be important to bring back the confidence level between the patient and the doctor, and overall, in the system.
- As I conclude, let me just say how important it is to maintaining Singapore’s healthcare system as a whole, something we can be proud of.
- We rank well, when we look at the UN health-related sustainability development goals. We far surpass other nations, whether or not it is in high vaccine coverage or low premature deaths. There is a whole series of indicia that go behind this, but generally, we rank well, and we have been doing so for the past couple of years.
- In terms of the health efficiency index, we have not only done well, but we have been able to do this at a relatively low cost as a proportion of our GDP. Singapore at 4.4% is the second lowest in the top 10, behind only Thailand’s 3.7%. Many other countries in the top 10, they are in the region of 6-7%, and in some cases, 9-10%. We need to keep this low.
- As a government, we are very conscious that as we move into a different paradigm come 2030, with our ageing population and increasing healthcare costs. If we still do not have the level of trust in the system that generates defensive medicine – unnecessary treatments, unnecessary prescriptions and so on, we will begin to see this number rise. That will have a very big impact on the overall healthcare premiums in Singapore.
- An occasion like this – lawyers, doctors, friends from across the causeway and other jurisdictions, sharing information, understanding each other’s challenges, coming together – has been very helpful and fruitful experience.
- In my time in practice, I thought the MLSS has played a tremendously important role. Unfortunately, in the last few years, we didn’t have such a session, but with the 50th year next year, I encourage all of you to come together, and use this platform, not just for karaoke which I understand is a fun tradition, but also for us to exchange information, and know-how. It is through this constant dialogue, this constant exchange of information, this sense of openness in a relationship that help the healthcare system in Singapore.
- Thank you very much once again for having me here, and for listening to me.
Last updated on 28 October 2023