Biomedical Law and Ethics

• Author: Paul TAN LLB (Hons) (National University of Singapore), BCL (Oxon); Advocate and Solicitor (Singapore). Prem Raj PRABAKARAN BEng (Mechanical) (Hons) (National University of Singapore), LLB (Hons) (National University of Singapore), BCL (Oxon); Deputy Senior State Counsel/Deputy Public Prosecutor, Attorney-General's Chambers.
• Date: 01 December 2013
• Published date: 01 December 2013
• Citation: (2013) 14 SAL Ann Rev 102

Introduction

6.1 The year under review saw perhaps one of the most significant decisions in professional discipline with Lim Mey Lee Susan v Singapore Medical Council[2013] 3 SLR 900 (‘Susan Lim’). This was followed by Pang Ah San v Singapore Medical Council[2014] 1 SLR 1094 (‘Pang Ah San’). There, several aspects of the ethical obligations of medical practitioners vis-à-vis the extent to which they may apply novel forms of treatment was extensively examined. This area had previously been considered in Gobinathan Devathasan v Singapore Medical Council[2010] 2 SLR 926 (‘Gobinathan Devathasan’) and Low Chai Ling v Singapore Medical Council[2013] 1 SLR 83.

Professional discipline

6.2 In Susan Lim, the Court of Appeal ruled on 94 charges laid against Lim. Broadly, two categories of charges were alleged. First, there was the allegation that Lim had overcharged her patient in excess of and disproportionate to the services rendered; and second, certain invoices had been rendered which falsely represented that such fees had been invoiced by and/or would be payable to certain named doctors, when she knew or ought to have known that such a representation was not true in so far as she had added a significant and undisclosed mark-up to the actual fees charged by those doctors.

6.3 Perhaps the part of the judgment which carries repercussions beyond this case relates to the practice of charging fees. The court came down in relatively strong terms about the ethical obligation of medical professionals in relation to their fee-charging practices. In brief:

(a) The court rejected the argument that any agreement on fees could preclude a finding that there was some other objective ethical limit on the fees that a doctor could charge his patient, even in the context of private healthcare. As the court put it, there existed an ethical obligation on the part of all doctors who practised medicine in Singapore – over and above contractual and market forces (for example, any existing agreement on fees between the doctor concerned and his or her patient) – to charge a fair and reasonable fee for their services: at [26]–[28].

(b) The basis for this objective ethical limit on fees was said to arise from the unique societal position of doctors, which imposes an ethical responsibility in favour of public service and not ‘merely money-making’ or ‘the advancement of self-serving interests’: at [35] and [39]–[42].

(c) A doctor could not, therefore, seek to ‘take advantage’ of his patient monetarily or otherwise; and ‘excessive overcharging’ was a breach of this ethical standard: at [44] and [52].

(d) What constituted a fair and reasonable fee for services rendered would depend not only on the relevant facts, but also on the views of experts in the particular field of practice concerned: at [53] and [72].

6.4 There are a number of respects in which there will need to be further clarification in future cases but two short comments may be raised at this stage. First, although the ethical limit for charging fees is said to be ‘objective’, there was no clear guidance on how this determination was to be made. Understandably, each case will turn on its facts, but the fundamental question is how the value of medical services can be objectively ascertained. The court ultimately held that Lim should not have charged more than $2m in this case but this was not made by reference to any forensic valuation of the services provided or matrix. This suggests the inherent difficulty in being objective about the exercise.

6.5 Second, it is curious that little, if at all, weight is given to the ostensible value the patient places on the medical service. According to the court's analysis, it appears entirely irrelevant what fees a patient may have agreed with his doctor. Yet, if the patient is willing to pay a premium for the service of a particular doctor, it is unclear what the ethical objection in allowing that agreement to stand is. There are hints in the judgment that the court is anxious to protect the patient from possible abuse or exploitation but that appears to be more of an argument in favour of ensuring that fee agreements are properly arrived at rather than holding that they are irrelevant altogether.

6.6 It has been suggested that if the dispute is really only concerned with an issue of quantum, this is perhaps better left to some form of taxation process that could be set up within the Singapore Medical Council (‘SMC’): see Rebecca Chew, ‘Doctor's Fees after Susan Lim's Case – Implications for the Medical Profession’SMA News (November 2014) at pp 24–27. This is an idea worth exploring, thus leaving the professional disciplinary process to address only cases where there has been dishonest exploitation of the patient or deliberate overcharging.

Ethical obligations in relation to novel treatments

6.7 Clause 4.1.4 (‘the Clause’) of the SMC's Ethical Code and Ethical Guidelines (‘ECEG’) on ‘Untested practices and clinical trials’ (‘the Caption’) deals with the permissibility of prescribing treatment(s) not generally accepted by the medical profession. This three-paragraph clause reads (the terms in italics were considered by the Court of Three Judges):

Paragraph	Text	Reference
1	A doctor shall treat patients according to generally accepted methods and use only licensed drugs for appropriate indications.	‘The Prescription’
A doctor shall not offer to patients, management plans or remedies that are not generally accepted by the profession,	‘The Prescription’
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