Like
the legal profession, the ethical and professional standards of the medical
profession are to a large extent, self-regulated. In order to retain public
confidence in the profession, these standards are exacting and are scrupulously
enforced. In this article, Francis Xavier provides an overview of the
disciplinary process involved and the applicable standards in the light of the
changes that came into effect in April 1998. This article also examines the
impact of the duty of patient confidentiality.
The
Governing Entities
The
disciplinary powers of the profession rest chiefly with the Singapore Medical
Council (‘SMC’). The SMC possesses adjudicatory and punitive powers.
In
addition to the SMC, the Singapore Medical Association (‘SMA’) and the
Ministry of Health (‘MOH’) can and do receive complaints from the public.
These, bodies, however, have limited powers of investigation and punishment.
Also, the individual hospitals invariably have an internal disciplinary process
as well.
The
SMC
The
SMC was established under the Medical Registration Act (‘MRA’). Its
functions include maintaining a register of practitioners and making
recommendations on the training and education of medical professionals.
Section
5(f) of the MRA provides that the SMC is ‘to determine and regulate the
conduct and ethics of the registered medical practitioners’. In fulfilling its
role, the SMC can make regulations ‘regulating the professional practice,
etiquette, conduct and discipline of registered medical practitioners’
(section 58(2)(e), MRA).1
The
SMA
The
SMA was formed in 1959 by the profession itself. It represents the majority of
the medical practitioners in Singapore and has its own constitution. Part of the
objectives of the SMA is to maintain the honour of the medical profession and to
support a higher standard of medical ethics and conduct.
The
public perception is that the SMA is the key body regulating the disciplinary
process within the profession. Indeed, in recent times, the majority of
complaints against doctors are lodged with the SMA and not the SMC.2
Contrary
to popular perception, the SMA has no investigative or punitive powers. Even
where the conduct of the practitioner concerned falls short of expected
standards, the SMA is powerless to impose sanctions. The SMA’s power to
regulate the conduct of medical practitioners has aptly been described as being
only ‘persuasive’.3
Invariably,
upon receiving a complaint, the SMA plays the role of mediator. Where the
complaint cannot be resolved or the complainant remains dissatisfied, the SMA
usually recommends that the complainant obtain legal assistance or lodges an
official complaint with the SMC (see, for instance, the Ethics Committee Report
as contained at p 47 of the ‘Annual Report of the Singapore Medical
Association, 1993–1994’).
The
MOH
The
MOH has no direct disciplinary control over members of the profession. While
there is nothing to prevent the MOH from conducting its own investigation into a
complaint against a practitioner, in practice, it usually refers such complaints
to the SMA or SMC.
The
regulatory powers of the MOH lie in its control over hospitals and other medical
establishments. These powers are contained in the Private Hospitals and Medical
Clinics Act (Cap 248) (‘PHMCA’). With the exception of Alexandra Hospital
and the Institute of Mental Health, the PHMCA applies to all hospitals as well
as to private clinics, clinical laboratories and healthcare establishments.
Pursuant
to the powers set out in the PHMCA, the MOH oversees the licensing, quality and
appropriateness of the services provided and the practices and procedures
employed.
Alexandra
Hospital and the Institute of Mental Health come under the purview of the MOH by
virtue of the Government Hospitals Act (‘GHA’).
Broadly
speaking, the MOH is concerned with the practice of these establishments as
opposed to that of the individual practitioner.
The
hospitals
The
hospitals governed by the PHMCA are obliged to set up a quality assurance
programme to ‘[m]onitor and evaluate the quality and appropriateness of
patient care … and to identify and resolve problems’ (section 30, PHMCA).
The inquiry is an internal exercise within the hospital and will be governed by
the internal disciplinary practices of the hospitals concerned. There are no
specific standards or guidelines governing such disciplinary processes, apart
from the general law.
A
disgruntled complainant may in fact refer the conduct of the hospital’s
reviewing committee to the SMC (‘Annual Report of the Singapore Medical
Association, 1993–1994’, p 13).
There
is a need for a standard set of guidelines or minimum standards governing the
operation of such quality assurance programmes to be implemented.
It
is interesting to note that no similar obligation as set out above is provided
for in respect of hospitals governed by the GHA.
Disciplinary
Proceedings by the SMC
Disciplinary
proceedings by the SMC are governed by the MRA and the Medical Registration
Regulations (‘MRR’), both of which were amended in April 1998.
The
disciplinary proceedings comprise two main stages: a review by the Complaints
Committee (‘CC’), which may be followed by a formal inquiry by the
Disciplinary Committee (‘DC’).
The
primary role of the CC is to inquire into a complaint and determine if the
matter should be formally inquired into by the DC.4
The CC cannot inquire into matters beyond those raised in the complaint.5
The
CC has fairly wide powers. For example, it can, while conducting its inquiry,
require any person ‘to assist’ in the inquiry and any documents or records
to be produced. It can even compel a medical practitioner to disclose all
information relating to such documents or records (section 40(16), MRA). A
person withholds such information or documents on pain of imprisonment and/or
the imposition of a fine (section 40(17), MRA: maximum fine of S$5,000 and
imprisonment for up to 12 months). The patient confidentiality issue in this
context is discussed below.
The
medical practitioner whose conduct is being investigated has no right to be
heard by the CC (section 40(21), MRA) .
In
the event that the CC decides that no formal inquiry be made but that the
practitioner be issued with a letter of advice or warned, the aggrieved
practitioner has the right of appeal to the Minister of Health, whose decision
shall be final.
The
Grounds for Liability
Prior
to the 1998 amendments to the MRA, a practitioner facing a DC would be liable
for professional misconduct if he was either:
convicted
of a heinous offence; or
found
to have been guilty of infamous conduct in a professional respect (section
23(1) of the now revoked MRA, 1970).
The
SMC Ethical Code of 1995 (the ‘Code’) is a publication of the SMC which sets
out what the SMC regards as the minimum standards applicable to practitioners in
the discharge of their professional duties and responsibilities. The Code
defines a ‘heinous offence’ as ‘a conviction in the criminal courts of
Singapore of an offence involving moral turpitude affecting a practitioner’s
fitness to practise’ (the Code, para 16).
The
Code also defines ‘infamous conduct in a professional respect’ as a
‘serious professional misconduct judged according to the rules, written and
unwritten, which govern the medical profession’ (the Code, para 18). English
judges have construed this phrase to mean acts which ‘would be reasonably
regarded as disgraceful or dishonourable by his professional brethren of good
repute and competency’ (Allinson v General Council of Medical Education and
Registration [1994] 1 QB 750).
This
language was done away with by the 1998 amendments. Under the amended MRA, the
substantive grounds on which the DC may find a practitioner liable include the
practitioner having:
been
convicted in Singapore or elsewhere of any offence involving fraud or
dishonesty or implying a defect in character which makes him unfit for his
profession;
been
guilty of such improper act or conduct which brings disrepute to his
profession; or
been
guilty of professional misconduct.
The
MRA does not offer any assistance as to the meaning of the above phrases.
Further, the Code has not been updated by the SMC to reflect the 1998
amendments. The extent to which the old definitions will be applied remains
unclear. No doubt, some oblique guidance can be obtained from the conduct of
disciplinary proceedings in the legal profession in the cases interpreting
section 83 of the Legal Profession Act.
An
appeal lies to a Court of three Judges from an order made by a DC (section
45(12), MRA).6 In such an appeal, the High
Court will accept as final and conclusive any finding of the DC relating to
issues of medical ethics or standards of professional conduct, unless the Court
takes the view that such a finding is ‘unsafe, unreasonable or contrary to the
evidence’.
Doctor-Patient
Confidentiality in the Context of Disciplinary Proceedings before the SMC
A
fundamental element of the medical profession is doctor-patient confidentiality.
It is enshrined in the Hippocratic oath which requires the doctor to ‘respect
the secrets that are confided in [him], even after the patient has died’. That
a doctor owes his patient a duty of confidentiality is undoubted in equity (Hunter
v Mann [1974] QB 767, W v Egdell [1990] Ch 359). It is also embodied
in the Code which forms the SMC’s guide to a doctor’s proper conduct (the
Code, para 20(b)(ii)).
The
question, therefore, is whether a practitioner seeking to defend himself in
medical disciplinary proceedings would, as a result of the duty of
doctor-patient confidentiality, find himself barred from adducing confidential
information as evidence.
As
with any other duty of confidentiality, doctor-patient confidentiality is
subject to exceptions. Two recognised exceptions or limitations which have
established roots in the duty of confidence are where there has been an implied
waiver to the right of confidentiality, and the limitation of self-interest.
Unfortunately, neither has been tested in the arena of doctor-patient
confidentiality.
It
is accepted in relation to lawyers that a lawyer may utilise confidential
information of his client’s where his client has brought a claim against him.
The exception is founded on the basis that by instituting proceedings and
putting the lawyer’s conduct in issue, the client implicitly waives his right
of confidentiality (Lilicrap v Nalder [1993] 1 WLR 94). The position as
regards legal proceedings commenced against a doctor for medical negligence by a
patient is the same: in instituting proceedings, the patient puts his health in
issue and thereby implicitly consents to the breach of confidentiality (see Hay
v University of Alberta Hospital [1991] 2 Med LR 204 and Powers and Harris,
Medical Negligence (2nd ed, 1994), p 133). There would seem to be no good reason
why the courts should treat disciplinary proceedings any differently.
The
position as regards claims or complaints brought by a patient would, therefore,
seem to be relatively clear in equity. However, a complaint against a doctor may
be brought by someone else other than the patient. This may arise where the
patient has passed away or is no longer mentally competent. Or a third party,
such as the MOH, may decide to raise a complaint. In such a case, as it is not
the patient that has raised the issue, the exception of implied waiver would not
apply. In those instances, however, it is suggested that the exception of
self-interest would apply.
The
exception of self-interest essentially provides that the duty of confidentiality
is limited where the interests of the duty-bound party requires disclosure of
the confidential information. The duty was first formulated in banker-client
relationships (Tournier v National Provincial and Union Bank of England
[1924] 1 KB 461, Sunderland v Barclays Bank Ltd (The Times, 24 November
1938). However, the duty was expressed in general terms and it is suggested that
the doctor-patient relationship of confidentiality should be treated no
differently. Support for this proposition in relation to doctors may be found in
the case of Duncan v Medical Practitioners Disciplinary Committee [1986]
1 NZLR 513, where the Wellington High Court stated in dicta that ‘a doctor may
reveal confidences and secrets if he is required to defend himself, or others,
against accusations of wrongful conduct’.
Oddly
enough, the position in equity seems to be contradicted by the Code, as
paragraph 29 of the Code provides that: