8 October 2020
On 6 October 2020, the Medical Registration (Amendment) Bill (“MR Bill”) and the Civil Law (Amendment) Bill (“CL Bill”) were passed in Parliament, after having been introduced on 3 September 2020 and debated on 6 October 2020.
The amendments to the Medical Registration Act (“MRA”) and the Civil Law Act (“CLA”) are the result of the report of the Workgroup to Review the Taking of Informed Consent and the Singapore Medical Council’s Disciplinary Process issued on 28 November 2019.
In explaining the amendments, the Ministry of Health (“MOH”) noted in its press release issued on 6 October 2020 that the doctor-patient relationship is built on trust. Patients need to be able to trust that their doctors will do their best for them and doctors need to be able to trust that the disciplinary system they operate in is a fair and transparent one which produces consistent outcomes, and which sets and applies clear standards on what is required of doctors. The MOH states that the amendments to the CLA will provide clarity, certainty and consistency on the standards expected of doctors, through the codification of a new statutory test. At the same time, the changes to the MRA seek to establish an effective and robust self-regulatory system which acts expeditiously, and is consistent, proportionate, fair and independent.
In implementing these goals, the MR Bill seeks to bring about wide-ranging changes to the disciplinary processes applicable to registered medical practitioners (“RMPs”) and the CL Bill sets out the applicable legal test for determining if the standard of care in relation to medical advice given to a patient has been met by healthcare professionals.
Amendments to Medical Registration Act
The MR Bill amends the MRA to implement changes to the Singapore Medical Council’s (“SMC”) disciplinary process.
Significant changes are briefly highlighted here.
Introduction of an Inquiry Committee
The MR Bill provides for a new Inquiry Committee which will filter out, and dismiss at an early stage, complaints that are frivolous, vexatious, misconceived or lacking in substance. The Inquiry Committee must, within three weeks after the date the complaint is referred to it, decide whether to dismiss the complaint, issue a letter of advice, or refer the matter for further inquiry by a Complaints Committee. Where the Inquiry Committee refers the complaint to the Complaints Committee, the Inquiry Committee will be empowered to direct that investigations commence, ahead of the appointment of the Complaints Committee.
The Inquiry Committee may also, at any time after a matter is referred to it but before completion of its inquiry, refer the matter for mediation and suspend the inquiry while mediation is ongoing.
An Inquiry Committee or a Complaints Committee may make costs orders against the complainant if the matter is dismissed for being frivolous, vexatious, misconceived or lacking in substance, and may when determining the costs to be imposed take into account the parties’ conduct in relation to mediation or other means of dispute resolution. These costs orders may be appealed to the High Court.
Establishment of a Review Committee to review Complaints Committee decisions
Currently, if a complaint is dismissed by the Complaints Committee, an appeal may be made to the Minister for Health. The MR Bill seeks to replace this appeal process with an application for review of a Complaints Committee decision made to a Review Committee, which will comprise a doctor, legal professional and layperson. The purpose of this change is to enhance transparency and reduce possible delays.
The Review Committee may only make an order on whether the Complaints Committee has complied with all procedural requirements under the MRA (and any relevant regulations), or direct a further inquiry or rehearing where the Complaints Committee did not comply or if any new evidence submitted to the Review Committee is material to the complaint or matter.
Introduction of a Disciplinary Commission
The MR Bill provides that a Disciplinary Commission may be convened by the Minister to oversee the appointment of Disciplinary Tribunals and their processes and procedures. The Commission will sit independently of the SMC. The members of such tribunals must fulfil specific criteria, as set out in the MR Bill. The functions of the Disciplinary Commission include appointing Disciplinary Tribunals, overseeing the training of members of the Complaints Panel and Health Committees and overseeing the procedures and processes of Disciplinary Tribunals. The Disciplinary Commission will be headed by a senior doctor as its President, and will receive legal advice and secretariat support from a unit independent of the SMC.
The procedure to be adopted by the appointed Disciplinary Tribunal is set out in the MR Bill, which specifies that the tribunal may make, after its inquiry, a range of findings and orders including dismissal, removal or suspension of the RMP’s registration, imposition or variation of conditions or restrictions on his registration, censure, requiring the RMP to give an undertaking to abstain from the conduct complained of, and imposition of a penalty not exceeding S$100,000. For suspension of registration, there is no longer a minimum suspension period of three months. The Disciplinary Tribunal may also make costs orders. A right to appeal such orders to the High Court is provided for and the appeal must be made within 30 days.
Written notice to be given
Where an investigation is directed by an Inquiry Committee, a Complaints Committee or a Disciplinary Tribunal, the RMP must be given written notice of the investigation. The RMP can be called upon to provide evidence and be subject to performance or fitness assessments.
Introduction of time bars
A time-bar will be introduced for the filing of complaints to ensure fairness for both doctors and patients. Complaints which are submitted more than six years from the date of the act or conduct in question, or from the earliest date the complainant had knowledge of it (or could have discovered it, with reasonable diligence), will not be referred to the Chairman of the Complaints Panel, unless the President of the Disciplinary Commission assesses that it is in the public interest to do so.
Interim orders to be made immediately
An Interim Orders Committee can be convened upon the request of any of the other committees tasked with reviewing an RMP. Currently, an Interim Orders Committee must always convene a hearing before making an interim order, even in cases where there is an imminent danger to patient health and safety.
This process changes under the MR Bill with the Interim Orders Committee empowered to issue an immediate interim order without giving the RMP an opportunity to be heard where it is satisfied, or the SMC has certified that it is of the view, that the RMP’s conduct poses an imminent danger to patient health or safety. The immediate interim order ceases to have effect after one month if the RMP has not been given an opportunity to be heard.
The MR Bill sets out the types of interim orders that may be made and provides that the effective period of an interim order cannot exceed 18 months. The SMC may apply to the High Court to extend the period for which an interim order has effect and the RMP may apply to the High Court to have the interim order revoked, varied or substituted.
Where an RMP is suspended under an interim order, he is not to be regarded as being registered even though his name still appears in the register, but his rights and privileges are revived immediately after the expiration or revocation of the interim order.
Amendments to Civil Law Act
The CL Bill amends the CLA by setting out the legal test in respect of the standard of care for medical advice given by healthcare professionals. The current legal test to determine the standard of care in relation to the provision of medical advice in Singapore, known as the “Modified Montgomery” test, was framed by the Court of Appeal in Hii Chii Kok v Ooi Peng Jin London Lucien & Anor  SGCA 38 as involving a three-stage inquiry:
- The patient must identify the exact nature of the information he alleges was not given to him and establish why the information not given would be regarded as relevant and material to (i) a reasonable patient in his position, or (ii) him.
- If the patient is able to establish this, the court then examines if the doctor was in possession of this information.
- If so, the doctor will not meet the standard of care unless he can provide a reasonable justification for withholding the information, such as emergency treatment.
The new legal test set out in the CL Bill will prevail over existing common law on the standard of care for medical advice, to the extent of inconsistency between those provisions and common law. The common law in this area will continue to apply where it is not inconsistent with the provisions of the CL Bill. It should be noted that the CL Bill does not deal with, and does not affect existing common law on, the standard of care for medical diagnosis and medical treatment carried out by healthcare professionals.
A healthcare professional is defined in the CL Bill to mean an individual who practises a profession that provides medical advice. Medical practitioners, dentists and oral health therapists are examples of individuals who will fall under this definition.
Peer professional opinion to determine if standard of care is met
To meet the standard of care expected of healthcare professionals in the provision of medical advice, the healthcare professional must act in a manner acceptable by a respectable body of medical opinion (“peer professional opinion”), as reasonable professional practice in the circumstances, provided that such peer professional opinion is logical. A peer professional opinion is logical where:
- The body of healthcare professionals holding the opinion has directed its mind to the comparative risks and benefits relating to the matter, and
- The opinion is internally consistent and does not contradict proven extrinsic facts relevant to the matter.
It is also provided that mere fact of differing professional opinions does not preclude the peer professional opinion from being relied on.
The peer professional opinion must require the healthcare professional to have given or caused to be given to the patient:
- Information that a person in the same circumstances as the patient would reasonably require to make an informed decision about whether to undergo a treatment or follow medical advice. These circumstances are relevant to the extent that they are circumstances which the healthcare professional knows or ought reasonably to know.
- Information that the healthcare professional knows or ought reasonably to know is material to the patient for the purpose of making an informed decision about whether to undergo a treatment or follow a medical advice. The CL Bill explains that this provision refers to information which a person in the same circumstances as the patient would not reasonably require to make an informed decision about the treatment or medical advice, but which is important to the patient for the patient’s personal, even idiosyncratic, reasons (“patient’s personal reasons”) for the purpose of making an informed decision.
An assessment of whether information is material to a patient’s personal reasons must be based on the following:
- The patient’s specific concerns or queries about the treatment or medical advice as expressly communicated by the patient to the healthcare professional; and
- The patient’s specific concerns or queries about the treatment or medical advice which are not expressly communicated but which ought to be apparent to the healthcare professional from the patient’s medical records that the healthcare professional has reasonable access to and ought reasonably to review.
The MR Bill and the CL Bill are available on Singapore Statutes Online sso.agc.gov.sg or by clicking the links below:
The following materials are available on the MOH website www.moh.gov.sg by clicking the links below: