Case Summaries

Lam Kwok Tai Leslie v Singapore Medical Council

SUPREME COURT OF SINGAPORE

20 October 2017

MEDIA SUMMARY

Lam Kwok Tai Leslie v Singapore Medical Council

[2017] SGHC 260

Originating Summons No 11 of 2016

Decision of the High Court (delivered by Sundaresh Menon CJ)

1          This was an appeal by Dr Lam Kwok Tai Leslie (“Dr Lam”), a cardiologist in private practice, against his conviction by a Disciplinary Tribunal (“DT”) appointed by the Singapore Medical Council (“the SMC”) of one charge of professional misconduct under s 53(1)(d) of the Medical Registration Act (Cap 174, 2004 Rev Ed) (“the MRA”) for having failed to obtain informed consent from a patient (“the Patient”) prior to carrying out an invasive procedure known as a Percutaneous Coronary Intervention (“PCI”), in breach of Guideline 4.2.2 of the 2002 edition of the SMC’s Ethical Code and Ethical Guidelines (“the SMC ECEG”). Dr Lam was acquitted of two other charges which had been brought against him. The DT sentenced Dr Lam to three months’ suspension from practice, and also ordered him to pay one-third of the costs and expenses of the inquiry to the SMC.

2          Dr Lam appealed against his conviction, and, in the alternative, against his three-month suspension sentence on the basis that if his conviction were upheld, he should be sentenced to a fine instead. The main issue in the appeal was whether the DT erred in finding professional misconduct on Dr Lam’s part. 

The material facts

3          A PCI is a procedure used to open a blocked coronary artery by placing stents, which are small mesh tubes, in the affected artery to support its inner wall.

4          The Patient’s complaint arose from Dr Lam’s management of his condition in March 2011. The Patient had a history of coronary artery disease, hypertension and hyperlipidaemia. He had previously undergone a PCI at Raffles Hospital in 2006, when three stents had been inserted. In March 2011, the Patient visited Singapore and sought a suitable doctor to provide follow-up treatment. 

5          The Patient had three consultations with Dr Lam before the PCI was carried out. At the first consultation, a number of tests, including a Computed Tomography (“CT”) Angiogram, were carried out to establish the Patient’s condition. The results of the CT Angiogram became available the following day, which was the day of the second consultation. Although the Patient’s coronary arteries appeared to be in good condition, Dr Lam told the Patient that he did not consider the CT Angiogram results to be sufficiently reliable, and advised him to undergo a Conventional Angiogram as well. Dr Lam also informed the Patient that he should proceed with a PCI if any high-grade stenosis were found in the course of the Conventional Angiogram. The second consultation ended with the Patient leaving to consider Dr Lam’s advice. At the third consultation, Dr Lam again informed the Patient of his view that the findings from the CT Angiogram were not sufficiently reliable, and recommended that the Patient undergo a Conventional Angiogram and, if necessary, a PCI. The Patient accepted Dr Lam’s advice, and agreed to undergo a Conventional Angiogram and, if necessary, a PCI. He then signed a consent form for a “Coronary Angiogram Keep in View Coronary Angioplasty” (“the KIV Form”) at Dr Lam’s clinic. It was Dr Lam’s case that at the first and third consultations, he explained to the Patient the benefits, risks and possible complications of a PCI as well as the alternative treatment options available (collectively “the PCI benefits, risks, complications and alternatives”). 

6          The Conventional Angiogram was carried out on 18 March 2011. Immediately after the Conventional Angiogram, Dr Lam told the Patient that there was high-grade stenosis in his proximal Left Anterior Descending Artery, and advised him that that artery could be opened up by carrying out a PCI. The Patient agreed to let Dr Lam perform the procedure immediately. This was then done. The following day, Dr Lam informed the Patient that two stents had been inserted because the first stent had missed the site of the stenosis, thus necessitating a second stent. The second stent had slipped back proximally and protruded partially into the left main stem. It was not disputed in the appeal that despite this, the Patient did not suffer any harm as a result of Dr Lam’s actions and his condition in fact improved.

7          The Patient nevertheless lodged a complaint against Dr Lam with the SMC on 17 August 2011 alleging that Dr Lam had performed the PCI when it was unnecessary, and, further, that in doing so, he had failed to apply the requisite skill. The Patient also mentioned in his complaint that Dr Lam had carried out the PCI “without even once … informing [him] or explaining to [him]” the PCI benefits, risks, complications and alternatives. In response to the complaint, Dr Lam tendered a written explanation (the “Explanatory Statement”) to the SMC. On 25 September 2015, more than four years after the Patient lodged his complaint, the SMC sent Dr Lam a Notice of Inquiry setting out three charges, including the charge for professional misconduct under s 53(1)(d) of the MRA for having failed to “adequately advise the Patient of all the benefits, risks and possible complications of the [PCI] procedure and any alternatives available to him” (“Charge 3”). That charge was the sole subject matter of Dr Lam’s appeal.

8          It was undisputed that Dr Lam’s clinical notes from his consultations with the Patient did not record that he had explained the PCI benefits, risks, complications and alternatives to the Patient. However, it was also undisputed that the Patient had signed the KIV Form, which stated in general terms that the Patient had been informed of “the nature, purpose, risks and alternatives” pertaining to a PCI.

The court’s decision  

9          The court allowed Dr Lam’s appeal and set aside his conviction on Charge 3. It also set aside the DT’s orders on the sentence and the costs of the inquiry below.

10        The following aspects of the court’s judgment (“the Judgment”) should be noted in particular:

(a)                the court took issue with the ambiguous manner in which Charge 3 had been framed (see para 11 of this media summary);

(b)               the court did not find Dr Lam’s record-keeping satisfactory, but held that the DT had placed undue emphasis on the lack of contemporaneous documentation of consent-taking in convicting Dr Lam on Charge 3 (see paras 15 and 18 of this media summary);

(c)                the court stated that it would expect the SMC to consider preferring charges for failure to keep proper records in the light of the new requirement relating to record-keeping in the 2016 edition of the SMC ECEG (see para 15 of this media summary);

(d)               the court held that the nature of a doctor’s obligation under Guideline 4.2.2 of the SMC ECEG was to ensure that the patient was aware of “the benefits, risks and possible complications of the procedure and any alternatives available to him”, but that did not mean that the doctor had to mechanically recite such information to the patient without regard to what the patient already knew (see para 21 of this media summary); and

(e)                the court made some observations regarding the sentencing approach which should be adopted in disciplinary proceedings against doctors for failure to obtain informed consent, and also urged the SMC to review its processes to avoid inordinate delays in future disciplinary proceedings (see paras 24–26 of this media summary).

The manner in which Charge 3 had been framed

11        The court expressed its dissatisfaction with the ambiguous manner in which Charge 3 had been framed, pointing out that it was open to at least two possible interpretations. The court reiterated the importance of framing charges in criminal or quasi-criminal proceedings with sufficient specificity so that the respondent would be aware of the exact case which he had to meet (see [31] and [33] of the Judgment).    

The reasons for the court’s decision

12        The court held that Dr Lam’s conviction was unsafe as the DT had failed to give proper consideration to the following points (see [36] of the Judgment):

(a)        the Patient’s overall credibility, in view of the inconsistencies in his evidence as well as in the light of how the DT had received his evidence on the other charges against Dr Lam;

(b)        the KIV Form evidencing Dr Lam’s case that the Patient had been advised of the PCI benefits, risks, complications and alternatives, which had to be carefully considered in the context of the applicable burden of proof;

(c)        Dr Lam’s unchallenged evidence as to his usual practice in obtaining the informed consent of his patients;

(d)       Dr Lam’s explanation for the brevity of his Explanatory Statement in relation to Charge 3; and

(f)                the Patient’s own awareness of the relevant benefits, risks, complications and alternative treatment options.

Preliminary observations by the court

13        Before analysing the above matters in detail, the court made two preliminary observations.

14        First, it cautioned that where a court or tribunal was concerned with the standard of proof beyond reasonable doubt, it should be mindful that this standard was unlikely to be satisfied if all that was before it were two competing and equally plausible versions of the material facts: In re Bramblevale Ltd [1970] 1 Ch 128 (see [38]–[39] of the Judgment).

15        Second, it noted that the DT had treated the lack of contemporaneous documentation of consent-taking by Dr Lam as virtually conclusive of the SMC’s case on Charge 3, and held that this approach was “erroneous as a matter of principle” (see [37] of the Judgment). The court explained that since Dr Lam had been charged with failure to obtain the Patient’s informed consent as opposed to failure to maintain proper documentation, the lack of contemporaneous documentation of consent-taking, although relevant to Charge 3, was merely one factor to be considered in the light of the totality of the other evidence before the DT. The court, however, also affirmed at the same time the importance of proper record-keeping by doctors, stating that it was crucial for doctors to keep accurate and contemporaneous records of each and every consultation as such records would serve as a safeguard against disputes similar to that in the present case from arising (see [37] and [44]–[45] of the Judgment). The court also noted the new requirement in the 2016 edition of the SMC ECEG that doctors had to keep “clear, legible, accurate and contemporaneous medical records of sufficient detail”, and observed that it would expect the SMC to consider preferring charges for failure to keep proper records in cases similar to the present case in future (see [46] of the Judgment).

Failure to consider the Patient’s credibility as a whole

16        The court was of the view that on a fair reading of the Patient’s complaint, its sting lay not in Dr Lam’s alleged failure to inform the Patient of the PCI benefits, risks, complications and alternatives, but rather, in Dr Lam’s alleged conduct in essentially pushing and railroading the Patient into undergoing an unnecessary and “shoddily done” procedure for monetary gain. The allegation of failure to obtain informed consent was appended almost as an afterthought. This had a material bearing on how the DT ought to have approached the evidence on Charge 3, which turned essentially on whether the DT preferred Dr Lam’s or the Patient’s competing versions of the material events.

17        The court held that in considering Charge 3, the DT should have taken into account: (a) how it had received the Patient’s evidence on the other two charges against Dr Lam as those charges formed a much larger part of the dispute; and (b) the fact that it had rejected the Patient’s testimony on those charges. The court was of the view that the DT should have explained why, despite its rejection of the Patient’s testimony on those charges, it nonetheless preferred his testimony on Charge 3 (see [50] of the Judgment). The court stated that if the DT had considered the Patient’s testimony in its entirety, it was implausible that the DT would have accepted the Patient’s version of the material events so readily (see [54] of the Judgment).

Failure to give sufficient consideration to the KIV Form and to correctly apply the burden of proof

18        With regard to the KIV Form, the court considered that this form was not prolix; neither was the material clause therein – namely, that the Patient understood “the nature, purpose, risks and alternatives which were explained to [him] by Dr Lam” – buried in fine print. Given these circumstances, it was incumbent on the DT to apply its mind to why the Patient would have signed the KIV Form, even as he maintained that the very thing which the form said had happened (the explanation of the aforesaid “nature, purpose, risks and alternatives” to him) had not in fact happened (see [58] of the Judgment). Reading the DT’s written decision, the court held that it was driven to conclude that the DT convicted Dr Lam on Charge 3 based almost entirely on the lack of documentation of consent-taking alone (see [60] of the Judgment). This was erroneous for two reasons. First, Charge 3 was not one of failing to document the taking of the Patient’s consent; the DT had also overlooked the fact that the KIV Form was, on its face, documentary evidence that Dr Lam had explained to the Patient the PCI benefits, risks, complications and alternatives (see [61] of the Judgment). Second, the DT failed to consider the absence of documentation of consent-taking as merely one factor in the overall balance (see [63] of the Judgment). It did not address the critical issue of why the Patient, whom it found to be confident, knowledgeable, unafraid to raise issues concerning his medical condition with his doctor and clear about what he wanted, would, over the course of three consultations, have neglected to make a single inquiry about the PCI benefits, risks, complications and alternatives (many of which he was found to have been already aware of) and then merely signed the KIV Form indicating that these matters had been explained to him by Dr Lam if no such explanation had in fact been given to him (see [64] of the Judgment).

Failure to consider Dr Lam’s unchallenged evidence on his consistent practice in relation to consent-taking

19        The court held that the DT failed to consider Dr Lam’s unchallenged evidence that his consistent practice was to explain the “benefits, risks and possible complications” of coronary procedures such as Conventional Angiograms and PCIs to his patients before carrying out the procedures (see [67] of the Judgment). The court accepted that Dr Lam was driven at one point to base his evidence in this regard on his usual practice, but did not consider that surprising because Dr Lam had explained that he could not claim to have a specific recollection of a particular conversation relating to consent-taking which had occurred some years earlier (see [71] of the Judgment).

Failure to consider Dr Lam’s explanation for the lack of details on consent-taking in his Explanatory Statement

20        The court was of the view that the DT failed to assess in the right context Dr Lam’s explanation for the contrast in the level of detail between his Explanatory Statement, which was fairly brief and prepared closer to the time of his consultations with the Patient, and his statement of evidence-in-chief, which was much more detailed and prepared closer to the time of the inquiry, where Charge 3 was concerned. The DT erred in finding that in the Explanatory Statement, Dr Lam “made no mention … that he [had] told the Patient of the risks, complications and alternatives of a PCI” [emphasis added] when Dr Lam had in fact done so (see [73] of the Judgment). Further, the DT failed to give sufficient weight to Dr Lam’s testimony as to why his Explanatory Statement was so brief in responding to the allegation of failure to obtain informed consent (see [74] of the Judgment). The court was of the view that Dr Lam’s explanation for this – namely, that he perceived the sting of the complaint against him to be directed at his clinical expertise and management of the Patient rather than his alleged failure to obtain the Patient’s informed consent – was not unreasonable, given that the court took a similar view on the essence of the complaint (see [76] of the Judgment). 

Failure to take into account the Patient’s own knowledge

21        The court held that the DT erred in considering that the Patient’s own knowledge about the PCI benefits, risks, complications and alternatives was irrelevant to its assessment of Charge 3. Guideline 4.2.2 of the SMC ECEG, which was mirrored in Charge 3, required that it be proved that Dr Lam had failed to “ensure that the Patient was adequately informed about his medical condition and options for treatment”. This guideline did not impose an absolute and unyielding obligation on Dr Lam to mechanically explain all the PCI benefits, risks, complications and alternatives to the Patient regardless of his existing knowledge; instead, it imposed on him only an obligation to ensure that the Patient was apprised of the relevant information about PCIs. This obligation would be satisfied if Dr Lam had reasonable grounds to believe that the Patient was already well-acquainted with such information (see [77] of the Judgment). The court, however, also emphasised that where a doctor sought to defend himself against a charge of failure to obtain informed consent on the basis that the patient was already familiar with the relevant benefits, risks, complications and alternative treatment options, the burden was on the doctor to demonstrate that he had reasonable grounds for believing that the patient was already sufficiently informed of those matters. In the present case, it was clear that the Patient already had considerable knowledge of the PCI benefits, risks, complications and alternatives as he had previously undergone the same procedure in 2006; and Dr Lam would have been aware of the Patient’s knowledge in that regard, given that he had not only taken down the Patient’s medical history but had also had “three full sessions to discuss PCI with [the Patient]” (see [78] of the Judgment). 

22        The court was of the view that in order for the SMC to sustain its case on Charge 3 in the way that it had chosen to run it, the SMC would have had to establish not only that no discussion between Dr Lam and the Patient on the PCI benefits, risks, complications and alternatives had taken place at all, but also that Dr Lam, despite his interactions with the Patient over the course of three consultations, had no reasonable grounds for thinking that the Patient had any of the knowledge about PCIs that he in fact had. The court found this improbable in the light of the DT’s strong findings on the knowledge which the Patient already had in this regard and the Patient’s attitude during his interactions with Dr Lam (see [80] of the Judgment). 

General observations on sentencing

23        Given the court’s decision to acquit Dr Lam of Charge 3, the question of sentence did not arise. Nevertheless, the court made some brief observations on the sentencing approach which should have been adopted in this case.

24        First, the court noted that it had taken “an inordinately long time” for the Patient’s complaint to reach the court, and pointed out that a delay of this nature could lead to a reduction in sentence where a doctor was convicted at the end of the disciplinary proceedings against him. The court urged the SMC to scrutinise its procedures in disciplinary proceedings so as to avoid such delays in future (see [84] of the Judgment).

25        Second, given that the maximum fine prescribed in s 53(2)(e) of the MRA for an offence of professional misconduct had been increased from $10,000 to $100,000 in 2010, a doctor who had previously been sentenced to the statutory minimum period of three months’ suspension could now possibly be sentenced instead to a high fine, perhaps one at the higher end of the enhanced range prescribed in s 53(2)(e) (see [88] of the Judgment). 

26        Finally, the court stated that a DT which was faced with the task of sentencing an errant doctor for professional misconduct under s 53(1)(d) of the MRA in the form of a failure to obtain informed consent should consider the following non-exhaustive list of factors in sentencing (see [90] of the Judgment):

(a)                the materiality of the information that was not explained to the patient;

(b)               the extent to which the patient’s autonomy to make an informed decision on his own treatment had been undermined as a result of the doctor’s failure to explain the necessary information; and

(c)                the possibility of harm and, where applicable, the materiality of the harm which resulted from the doctor’s failure to explain the necessary information.

Conclusion

27        For the foregoing reasons, the court allowed Dr Lam’s appeal and set aside the DT’s orders on the sentence as well as the costs of the inquiry.

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court.

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