System Failure, Below Standard, and Misconduct

I felt obliged to share with readers my thoughts after I read the judgment of an inquiry of the Medical Council of Hong Kong held in June 2013.  A gynaecologist was found guilty of misconduct in a professional respect for prescribing Amoxil to a patient who was known to be sensitive to Penicillin.

The judgment stated that: “Wrongful prescription of drugs which a patient is known to be allergic to can easily be prevented (my emphasis) by checking the medical record and checking with the patient.”  And then: “in view of the fact that there are cases in which the responsibility is plainly overlooked, we must send a message to the medical profession that the matter will be dealt with seriously in sentencing in future cases if patient’s known allergy is blatantly overlooked.”

It also commented unfavorably on whether further action needed to be taken by the Education and Accreditation Committee (EAC) in respect of her specialist registration: “We are of the view that to exercise proper care in prescribing medicine is a fundamental responsibility of all doctors.”  Although the doctor was ordered to be removed from the General Register for 1 month with the order suspended for 12 months, the EAC later removed her name from the Specialist Register permanently.  Of course she can appeal and/or apply to be included in the Specialist Register again.  Practically this meant that even though she got a suspended sentence in the inquiry, she was still unable to practice as a gynaecologist for a considerable period of time.

I fully agreed that the doctor had done something wrong.  In this case, the patient did suffer allergic reactions and was admitted to a private hospital for a few days.  The doctor actually owed the patient an apology.  The guilty verdict was a redress to the patient.  The sentencing also served to alert doctors to be more careful with medical prescriptions.  However, a few questions arose in my mind.

1. Are prescription errors really easily preventable?
2. Do doctors really expect zero error in prescribing?
3. Falling short of expected standard is professional misconduct?
4. Can imposing harsher (and harsher) punishment help preventing prescription errors?

Are prescription errors easily preventable?

Prescription errors remain one of the leading causes of medical errors worldwide.  Various measures have been implemented at different levels in order to try tackling prescription errors.  Yet no one nation or any medical organization can claim that they can prevent all prescription errors.  It might not be difficult to achieve zero error on an individual basis for a certain period of time.  However, like other human errors, prescription errors are hard to eliminate in a system.  I don’t mean that we should do nothing on this important issue, nor that doctors are not to be blamed.  It is only through recognizing the difficulties in preventing prescription errors that we can elucidate the root causes of them.  Telling mothers to feed their children with nutritious food spoon by spoon is unlikely to solve the worldwide problem of malnutrition.  Similarly, educating industrial workers about the importance of fingers will not prevent them from chopping their fingers accidentally.  Sending victims of industrial accidents to jail will certainly not be useful in cutting accident rates.

Do doctors really expect zero error in prescribing?

Honestly, do you expect to encounter zero prescription error in the coming year in Hong Kong?  Of course the answer is “no”.  Do not fall into the pitfall of pinpointing an individual doctor facing a particular patient.  With hindsight, it is negligence to give penicillin-sensitive patient penicillin.  However, this does happen repeatedly in everyday lives when there is system failure.  Human errors are bound to happen when there are routine and repetitive actions.  A good system has built-in checkpoints to pick up such errors and to rectify them.  In the aforementioned case, in fact the doctor had implemented measures to check for errors.  There were cautionary note on the paper record and an allergy alert function in the computer system.  Sadly, both mechanisms failed in this case.  Ironically, the panel regarded the doctor even more blame-worthy with such safety mechanism in place, and implied that she had blatantly overlooked the known allergy.

How about a surgical procedure, such as colonoscopy?  We tend to be comfortable with the intrinsic risk of perforation of the colon.  When such risk materializes, the doctor seldom takes the blame.  If he has implemented mechanisms which can reduce the intrinsic risks, he is highly likely to receive credits for such actions.

Falling short of expected standard is professional misconduct?

The term “professional misconduct” carries quite a negative sense.  It is quite a serious matter when a doctor is labeled with misconduct.  However, from the decisions in the cases Koo Kwok Ho (1988) and To Chun Fung (2000), the Court of Appeal somehow equated misconduct as “conduct fallen short of the standard expected amongst doctors”.  Taking that to the strictest sense, misspelling a patient’s name can be professional misconduct.  It all depends on what is expected amongst doctors.  If the inquiry panel thought that prescription errors were easy to prevent, they would easily find the defendant doctor fallen below expected standard.  But, again, do doctors really expect zero error in prescribing?

“Professional misconduct” is now the only verdict from the disciplinary procedures.  The defendant doctor is either guilty or not guilty.  Apart from the differences in sentencing, there is no way to distinguish a doctor who maliciously harms his patient for his personal gain from a doctor who is herself a victim of system failure.  A review of the disciplinary procedures is seriously in need.

Can imposing harsher (and harsher) punishment help preventing prescription errors?

While removal from the General Register with suspended sentence was by no means lenient, it was difficult to think of harsher punishment than removal from the Specialist Register permanently.  With the deluded view that prescription errors were easily preventable, the doctor was regarded having done a grossly irresponsible act.  I totally agreed that in private practice, the doctor had to take sole responsibility in mishaps in the clinic.  However, she was a specialist in O&G, but not a specialist in system errors and risk management.  The inquiry panel had already agreed that the risk of committing the same mistake was low.  I wondered how she could further prove to EAC that she would be fit to be a specialist.

While all doctors should be alerted to the prevention of prescription errors, authorities should also understand the root causes of such errors.  Just as putting victims of industrial accidents to jail would not cut accident rates; imposing harsher punishment to doctors is unlikely to help decreasing prescription errors.  A realistic assessment of resources in private practices and facilitation of effective system management would be more promising solutions.

(Source: HKMA News August 2013)

Will a doctor be removed from the General Register if he takes part in Occupy Central?

This is an academic analysis from my personal opinions.  I have no intention to solicit doctors to take part, nor to deter doctors from taking part, in the Occupy Central movement.  Afterall, I do not believe that any doctor will decide to join, or refrain from joining, the movement just from the clarification on a remote chance of being removed from the General Register by the Medical Council of Hong Kong.  However, I decide to write this analysis because I hate official answers.  I sense that Occupy Central has become a taboo.  While various organizations are giving out opinions on matters such as biohazard and E. coli levels on sewage spillage, they divert members to the Medical Registration Ordinance (MRO) and the Medical Council for official answers to this important, but relatively simple question.  This is just like referring a patient with anaemic symptoms to the Harrison’s Principle of Internal Medicine and the British National Formulary.  I have served as Council Members in the Medical Council for several years and I have done a bit legal studies.  It will be helpful to consider my viewpoints on this matter.  Of course, you have to be aware that my personal opinions might be wrong, and that they are by no means complete.  At least, they are human, but not mechanical, nor official.

First, the disciplinary procedures of the Medical Council are event-triggered.  For example, they are triggered by a complaint received, or the fact that a doctor has been convicted of an offence punishable with imprisonment.  It is unlikely that the action of a doctor taking part in the movement per se will trigger the disciplinary procedures.  There has to be a complaint, or he has to be arrested, prosecuted, and then found guilty of an offence punishable with imprisonment.

Second, many people get s21A(1)(a) and s21A(1)(b) of the MRO mixed up.  Or most of them do not even know that there is such a sub-section (a).  S21A(1)(b) is about misconduct in any professional respect.  It is decided by the falling short of the standard expected amongst doctors.  S21A(1)(a) is not directly related to standard or misconduct.  It is about a doctor who has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment.  In the event of consequences from a doctor taking part in Occupy Central, we are more concerned about sub-section (a).

The rationale for a doctor who has been convicted with an offence punishable with imprisonment to go through the disciplinary procedures is for protection of the public.  When an offence is punishable with imprisonment, it means that it is of considerable gravity.  Although it does not automatically imply on the doctor’s fitness to practice, it serves as a signal to the disciplinary body to look into each individual case so as not to miss anything important.  The offence may reflect the character and conduct of the doctor.  For example, a doctor convicted of sexual offences with suspended sentence to imprisonment by the court can still practice.  S21A(1)(a) gives the disciplinary body power to look into whether this doctor will endanger his patients if he continues to practice.  We are expecting higher standard for a doctor than any lay person.

Third, it all depends on what the doctor who takes part in Occupy Central has done.  Or to be more precise, what he has actually been convicted of.  The Medical Council has dealt with different cases in very different manners.  For some “trivial” cases such as traffic offences (Yes, careless driving is punishable with imprisonment!), they are usually dismissed at the Preliminary Investigation Committee (PIC) level.  The doctor can stay at ease on the General Register.  However, for more serious offences, such as sexual offences, offences involving dangerous drugs, and offences concerning dishonesty, the Medical Council takes them much more seriously.  In the past, the Medical Council has removed doctors with the afore-mentioned offences from the General Register, ranging from a month to indefinitely.

If the doctor who takes part in the movement is convicted of offences without components of violence and endangering others, the disciplinary body might take the case more lenient.  However, there is no guarantee that the case would be dismissed at the PIC level.  The doctor might still need to go through inquiry and end up with consequences ranging from “not-guilty”, to a warning letter, to removal from the General Register.  On the other hand, if the doctor does something more drastic and ends up convicted of offences such as arson, or wounding and inflicting grievous bodily harm, an inquiry and removal from the General Register will be likely.  This is because adverse inference might be drawn on the doctor’s character with such convictions.

Fourth, life is full of uncertainties.  This point is very important.  Law suits have notoriously been unpredictable.  This is particularly true for jury trials.  In a Medical Council inquiry, it takes as few as 3 not-legally-trained panel members (out of the 5 members to form a quorum) to give a verdict.  There is no precedent case for offence related to civil disobedience.  Although I expect lenient verdicts, out-of-tune results will not be too unexpected.  More important, what is going to happen during the movement will also be unpredictable.  The doctor needs to make sure he is not involved in anything drastic.  Even so, while he is looking at charges like “unlawful assembly”, the prosecution might charge him with more serious charges like “riot”.

Last, but not the least: consequences.  As explained, if the participant is not convicted of any offence punishable with imprisonment, disciplinary procedures will unlikely be triggered.  If he is convicted with offences not regarded as endangering the public for him to continue to practice, I do not expect harsh verdicts.  Even in the rare case that he is removed from the General Register, he can usually be reinstated after he has spent his sentence.  However, his specialist registration (if any) might be affected.  And, important to some, but not so to most, doctors, maybe he will not be able to serve as a member in the Medical Council or the Hong Kong Medical Association.

However, there are other considerations.  The doctor needs to be emotionally stable and strong.  Even if everything goes in the expected direction, law suits and disciplinary procedures are stressful and disruptive to daily living.  He is likely to pay for his own legal costs as his medical insurance plan is unlikely to cover his actions unrelated to his medical practice.  If things go wrong, there will be more legal procedures, more financial burden and more stress.  If there is an out-of-tune judgment from an inquiry, the only thing the doctor can do is to lodge an appeal to the Court of Appeal (apart from taking the verdict as it is, of course).  He might, for the first time in life, realize the inequality in power in court when he faces a Queen’s Counsel instructed by the Medical Council, risking shouldered the costs if the appeal fails.  

(Source: HKMA News July 2013)