Montgomery and Medical Council Reform

Doctors and lawyers are still talking about the Montgomery case.  On March 11, 2015 the UK Supreme Court decided that the Bolam test no longer applied to the consent for medical treatment.  Doctors could not rely on common practice or support from responsible medical opinion to omit rare but significant risks when getting consent from their patients.  Instead, we now have to take “reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.”

If you have studied law after 1997, or if you have read a bit about Bolam, you would not be shocked by the Montgomery case.  Bolam was decided in 1957. Since then, and especially in the recent 30 years, the Bolam test has been said to be “out” and no longer applied in various areas of medical negligence cases too frequently.  After reading Montgomery, I am happy that Bolam test is still treated as the rule with more than a few exceptions.  I foresee that soon Bolam test will become the exception in the decision of the standard of care in medical negligence.

Tracing back to 1985, in Sidaway, Lord Scarman, though as minority in dissent, had said that the Bolam principle should not apply to the issue of informed consent.  A doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed.  To me, the most important limitation set on Bolam was by Bolitho in 1997.  In Bolitho, medical opinions were divided on whether the claimant, a child in respiratory failure, should have been intubated.  If Bolam was followed, the defendant doctor should automatically be deemed not fallen below standard as she was supported by respectable medical opinion.  However, the House of Lords took the chance to announce that it was the Courts that set the law and not the medical profession.  Even if the medical practice was supported by a body of respectable medical opinion, it needed to be logically defensible.  Whether that particular medical practice stood on logic would be decided by the Courts. The decision would include the weighing of risks against benefits.

Embraced in the Bolitho decision is the insurance principle.  If the consequence of a risk is grave when materialized, it should be insured against especially when the cost of insurance is low.  Thus, in Montgomery, shoulder dystocia was considered a grave consequence of vaginal delivery of big baby that should have been communicated to the patient.  This 10% risk should have been insured against by letting the patient choose whether to adopt other modes of delivery or to take the risk.  In Sidaway, Lord Scarman insisted that a less than 1% risk of paraplegia should have been told as the consequence was grave.  For the patient to make a real and informed choice, the doctor needed to make sure that the patient understood what the risk was and how avoidable it would be.

Note that the risk here is the inherent risk of an intervention.  Although human factors do count, we are talking about unavoidable risk even in the best hands.  Stressing on the character or the skill of the doctor cannot dispense of the requirement of informed consent.

Interestingly, or sadly, I see from discussion on the recent Medical Council reform proposal that some doctors do not understand the concept of intrinsic risks and the insurance principle stressed in the above mentioned string of court cases.  To put it frankly, the reform proposal is to change the composition of the Medical Council.  The purpose of doing so is to facilitate the passing of policies in-line with the government.  This has been openly announced by a lawmaker and it is not denied by the government.  By adding 4 lay members, the composition of the Medical Council is changed in 2 aspects.  First, the number of lay members is increased while doctors are still in majority.  Second, the number of appointed members will be in majority by 4 to elected members.  It is the change to appointed member majority that would serve the purpose of railroading government policies.

Those “for” the proposal put forward arguments mainly on 2 fronts.  First, some appointed members do go through some process of selection.  Second, appointed members have their integrity and would not rubber-stamp proposals by the government.  These arguments stand no chance if Montgomery applies.  The intrinsic “risk” of appointed members is that they are pro-government.  It is nothing about right or wrong.  The government will naturally select those expected to behave in-line with it.  It will also keep them for another term and discontinue to appoint those who have “misbehaved”.  Any selection or election process will not be of much help so long as the members needed to be appointed.  To insist that appointing is mere formality is to ignore the facts in the cases of HKTV and Johannes Chan in the HKU pro-vice-chancellor selection.

On the other side of the same coin, elected members are no saints.  Voters would have a natural tendency to elect those behaving in ways beneficial to them.  Elected members would have a natural “risk” of appeasing, or at least not upsetting, their voters especially when the system allows re-election after members serve their terms.

I am not talking about which kinds of members are better, nor which forms of election better serve the society.  I am looking at changing a balanced council to one with appointed member majority.  There exists a material risk that decision making by the Medical Council will be dominated by government policies.  Of course this might not happen.  But this is the intrinsic risk of the system once the composition is changed according to the present proposal.

I am not sure whether Dr. KO Wing Man needs to explain to the medical profession about this intrinsic risk.  I am not sure whether he needs to make sure lawmakers understand the consequence before they vote to support the proposal.  I wonder if the lawmakers who are minority in the Legco and are busy filibustering will agree to a change in composition of the Medical Council to give the government a majority vote.  I envy Alvin YEUNG Ngok Kiu who is elected to Legco to prevent a foreseeable change to the Rules of Procedure in case there is a minority created.  

Again, it is not about vaginal delivery or not. It is all about informed consent.

(Source: HKMA News March 2016)

Medical Council Deformed

The first shocking news of the medical profession in 2016 was the announcement, interestingly via news media, of proposed reform of the Medical Council by the government through introduction of an Amendment Bill to the Medical Registration Ordinance (MRO).  In this issue of the News, you must read the page from Lai Eve.  She had nicely summarized the content of the reform proposal and divided them into “controversial” and “straight-forward” categories.  The most ingenious was the title she coined this reform proposal:  The Medical Council Deform.

You might say that it was exaggeration to describe the proposal as deforming the Medical Council.  Or some might argue that it is necessary to deform the Medical Council if there is a need to do so, so as to serve the public better.  I shall high-light a few points before going into discussion.  

1. It was stated that this proposed Amendment Bill was only an interim action.  More thorough reform might be introduced after the review from the Steering Committee on Strategic Review on Healthcare Manpower Planning and Profession Development in Hong Kong.
2. This interim action was called for because there was a recent High Court case in which the judge severely criticized the delay by the Medical Council in handling complaints, and there had been mounting public pressure for urgent improvements.  
3. Another immediate concern was that the Medical Council needed more flexibility in approving a longer period of up to 3 years for application for limited registration of non-locally trained doctors to practice in Hong Kong.  
4. In the proposed Amendment Bill, the most controversial item is to increase the number of appointed lay members in the Medical Council from 4 to 8.

I am not going to argue whether there are urgent needs to introduce reform while the report of the Steering Committee is due to complete.  I have to point out that the increase in appointed lay members from 4 to 8 vastly disturbed the balance in the composition of the Medical Council, while serving no actual purpose in addressing the 2 stated objectives.  

Complaint handling is but one important function of the Medical Council.  Complaints are first screened by the Preliminary Investigation Committee (PIC).  The PIC would refer the case for an inquiry if a decision on whether the doctor is guilty is needed.  It is statutory requirement for a lay member to form the quorum both in a PIC meeting and in an inquiry.  Therefore, there seems a need to increase the number of lay members in the Medical Council if more PIC meetings and inquiries are to be held.  However, this complaint handling function is purposely segregated from the other functions of the Medical Council for fairness and for the guarantee of independent decision making by individual members.  PIC cases and inquiry details are never discussed in policy meetings or among members.  Therefore the issue of needing more lay members to meet PIC and inquiry quorums can be addressed by adjusting the role of assessors.  

Assessors are persons who can take part in an inquiry.  They will not take part in any other meetings or decision making of the Medical Council.  One of the purposes of such design is to relieve the workload of members of the Medical Council.  In the proposed reform, there are important modifications to the numbers and roles of assessors.  A lay assessor can replace the lay member in a PIC meeting or an inquiry to form the quorum.  The number of lay assessors appointed would be raised from 4 to 14.  All these changes can in fact address the issue of lay persons in complaint handling without disturbing the composition of the Medical Council.

Another often proclaimed problem about complaint handling not mentioned in the reasons for reform is “doctors protecting doctors”.  It is argued and propagandized that increasing the number of lay members is important and useful to address this issue.  However, the proposed reform keeps the majority of doctors in both PIC meetings and inquiries.  Therefore, increasing the number of lay members is irrelevant in this respect.

Increasing the number of lay members from 4 to 8 changes the ratio of lay members to doctor members from 4:24 to 8:24 (1/6 to 1/3).  Lay members are still the minority.  However, one should not overlook the fact that all lay members are appointed by the government.  Within the Medical Council, there exists a delicate balance of appointed member to elected member of 14:14.  When the number of lay members is increased by 4, the ratio of appointed members to elected members would be 18:14, with clear majority votes by appointed members.  

It has been hinted by some, and overtly expressed by many, that elected members in the Medical Council tend to protect the interest of doctors rather than the public.  A too often quoted example is that non-locally trained doctors are not allowed to practice in Hong Kong without sitting for an examination because of oppositions from doctors in the Medical Council.  This is frankly inaccurate and the example is inappropriate.  The power of the Medical Council originates from the MRO.  The Medical Council simply does not have the power to allow non-locally trained doctors to practice in Hong Kong without sitting for an examination and fulfilling certain requirements.  In certain situations, such as the applications for limited registration, the Medical Council can approve non-locally trained doctors to practice in the 2 Universities and Hospital Authority (HA) without sitting for an examination.  In the past few years, the HA has used this mechanism (with objections from a significant number of Hong Kong doctors) to  employ non-locally trained doctors to work in various departments.  So far, the Medical Council has posted practically no resistance to the applications.  The non-locally trained doctors are also able to successfully renew their limited registrations yearly.

While it certainly undermines the wisdom of doctor voters, it is to a certain extend true to say that elected members have an inclination to take interests of the profession more seriously.  However, by the same token, members appointed by the government will incline to support government proposals.  It is this delicate balance in power of difference stake-holders that decisions acceptable to all parties can be negotiated.  Having a clear majority of appointed members will distort the Medical Council to the extent that professional autonomy is affected.

Adding lay members to the Medical Council does not address the “urgent” needs stated in the proposal.  However, the HKMA is not against adding more lay members.  We have a deeper understanding of the proposal.  To safe-guard professional autonomy, we insist that the ratio of appointed members to elected members be maintained.  One simple method is to add 4 elected doctor members together with the addition of 4 appointed lay members. 

(Source: HKMA News January 2016)