Assalamualaikum Warahmatullahi Wabarakatuh
Bismillahi Rahmani Rahim
Beta bersyukur ke hadrat ILAHI, kerana dengan izin dan rahmat dari Nya juga, Beta dapat berangkat untuk menzahirkan Ucap Utama dan seterusnya merasmikan ‘Seminar On Medical Law & Ethics’.
2. Ethical dilemmas and conflicts occur in many professions, but perhaps none more so than in medicine. Modern health care has been described as presenting “the most complex safety challenge of any activity on earth.” I find it therefore very reassuring when I hear professionals agonise over issues of law and ethics. It tells me that they care enough about their profession to put the interests and welfare of their clients first. Many of these conflicts are complex and defy cut-and-dried answers. They demonstrate that medical knowledge and skills alone are not sufficient to guarantee good patient care. They must, in addition, be built on a sound foundation of values.
3. Many public policy tensions and conflicts today were not on the radar screen fifty years ago. With development have come increasing complexity, sophistication and expectations. Governments used to rule with little public engagement. This has changed and the model of modern civil governance is one that incorporates the interests of legitimate beneficiaries or “stakeholders”. Producers used to have significant market power and consumers had either to take it or leave it. The legal principle of the day was caveat emptor or “let the buyer beware”. Today, the tables are turned in many areas. Consumers are much better educated and informed, and they also have much greater power of choice.
4. Medical care has also changed with the times. Fifty years ago, access to primary health care could not be taken for granted. When people die or go through life incapacitated for the sheer lack of medical attention – a sad fact of life that is true in many parts of the world even today – ethical practices pale in importance. Nowadays, however, we are rightly concerned about the quality of medical care that is delivered and the manner in which it is delivered.
5. The tag line of this seminar is “teaching you to think like lawyers”. Some people may feel uncomfortable at the prospect of doctors thinking like lawyers, but I think the real point is that modern medical professionals need to be aware of the legal dimension in the course of their work. Patients are more likely to know their legal rights and are prepared to exercise them than ever before.
6. The growing number of medical litigation cases in courts can represent a number of things. It can quite simply be a natural and corresponding rise due to increasing numbers seeking health care. No health system in the world has been able to completely eliminate human errors nor is this likely to happen. It can also represent the fact that patients are aware of their rights and have better access to legal redress. Equally, it is possible that patients are just more prepared to litigate when medical services do not meet with their expectations. In all these cases, a rise in legal cases is not inconsistent with a rise in quality health care.
7. It is crucial that we carefully examine the facts to try and understand why there has been a rise in medical-related litigation. Only then will we be in a position to do something. The public’s perception, influenced by the occasional damaging media report, seems to be that there has been a decline in healthcare quality. Healthcare statistics, however, do not support this conclusion. There have been sustained improvements in life expectancy. Child mortality and maternal mortality rates have dramatically declined. Complaints lodged with the Ministry of Health average around 250 a year, a figure that does not seem excessive, especially when compared with the more advanced countries.
8. When medical errors or malpractice do occur, existing laws and regulations provide for disciplinary action to be taken. Patients or their families can also sue doctors under tort law for remedies, in which case the courts will be called on to determine if professional negligence has been committed and the damages to be awarded if so.
9. One of the subjects up for discussion at this seminar is the landmark Federal Court judgement in the Foo Fio Na case. It is my understanding that Malaysian doctors are not happy with the current trend in legal thinking as it imposes a much heavier burden on them. Not surprisingly, doctors are also uncomfortable that appropriate medical practices are defined and enforced by the courts rather than themselves. Many people, including well-meaning jurists, take doctors to be individuals of almost superhuman intelligence, capabilities and character and without taking into account the nature and pressures of their work.
10. The vast majority of doctors want the best for their patients and any mishaps that happen are not intentional. It is, nevertheless, critical to thoroughly investigate the causes of these mishaps. Most are due to some combination of human factors, such as fatigue and stress, and institutional ones, such as the lack of equipment, personnel and training owing to limited budgets. Preventive measures must then be taken to avoid a repetition of these events. If it is found that over-work is a major factor, for example, a maximum hours-worked rule could be instituted as currently applies to doctors elsewhere.
11. Medical-related litigation cases take a long time to wind their way through the courts. The Foo Fio Na case took almost twenty years to be resolved from start to finish. Given the length of time, such cases do not necessarily bring justice for plaintiffs even if the courts eventually find in their favour. The legal costs involved are also too prohibitive for most victims to bear. On the other hand, lengthy legal procedures may consume a substantial portion of the careers of defending doctors, not to mention causing them prolonged mental agony.
12. The fear of civil litigation can seriously affect the doctor-patient relationship. Where there should be confidence and openness, it can lead to suspicion and mistrust. Where information should flow freely from doctor to patient, fear may cause it to be suppressed and covered-up. While this is true, a mindset that is overly protective of doctors can also keep the door open to human tragedies, deny the need for change and foil innovation and improvement. It seems to me that if the medical community wishes to keep policymakers and the courts at bay, the challenge is to enact and enforce more stringent medical standards and practices and in a way that gains the public trust and confidence.
13. Managing issues of medical liability are never easy but perhaps even more difficult to sort out are those involving moral values and subjective judgements. Here the problem is often not the absence of ethical principles but the presence of conflicting ones. The tenet that a doctor should always act in the interest of the patient could clash with other norms such as the patient’s right to choose or refuse treatment.
14. Ethical medical treatment can run contrary to, or at least be greatly complicated by, overarching changes in healthcare. One of the fears is that with the medical profession becoming more market-driven, the doctor’s primary duty to the patient is being replaced by his or her duty to shareholders. An editorial of the New England Journal of Medicine concluded that “market-driven health care creates conflicts that threaten our professionalism”. It went further to urge America’s leaders to “reject market values as a framework for health care and the market-driven mess into which our health system is evolving.” The issue remains a top priority in the platforms of candidates in the 2008 US presidential elections.
15. The Malaysian Medical Association’s Code of Medical Ethics expressly requires that the medical practitioner “must place the interest of the patient first”. This is further reinforced in the Malaysian Medical Council’s guidelines adopted in late 2006 entitled Ethical Implications of Doctors in Conflict Situations. Quite clearly, there is the realisation that present directions in healthcare can adversely impact quality, quite apart from the fact that patients may be short-changed in terms of benefits. In Malaysia, complaints against privately-managed care organisations or MCOs include the practice of capping of chargeable fees, limiting tests and procedures to the patient and disclosure of patient information.
16. The best treatments are not usually the cheapest treatments, although they are also not always the most expensive ones. On the one hand, doctors are obliged to provide or recommend treatments and disclose therapeutic alternatives that would benefit the patient regardless of cost and whether they are offered by patients’ health care plans. At the same time, doctors are scrutinised by the MCOs who pay their fees and wish to minimise patient costs. For the time being, the number of patients covered by MCOs is still small. With the rising tide, however, will come greater challenges to medical practitioners to maintain their duty to patient and profession.
17. Despite all the admonitions, it is debatable whether doctors on their own can offer anything more than token resistance. It seems to me to be a case of wishful thinking that medical practitioners will be able to conduct themselves ethically and responsibly if such qualities are also missing in the healthcare environment at large. As with so many public matters, the answer is not only in making policy, but in the entire governance framework. I believe that as the medical profession struggles to establish medical ethics that meets the needs and demands of the present, the overall healthcare governance system must be improved as well.
18. Good governance and medical ethics share many common characteristics. One such characteristic is participation. In the past, politicians and bureaucrats were largely responsible for policymaking and administration. Today, stakeholders take on more active responsibility in these matters. This is also the case in medicine where doctors, patients and patient groups have a much larger role to play. For participation to be effective, another characteristic, transparency, is required so that informed decisions can be made. Transparency is also behind the practice of obtaining patients’ informed consent, which is so important in medical ethics.
19. Yet another quality, consensus, is needed to bring together the different interests of stakeholders. In the medical field, agreement with patients and peers is important prior to treatment. I have already deliberated at length on the issue of accountability. Besides its legal, professional and moral connotations, it is also well known that individuals and organisations tend to perform better when they are accountable to those who are affected by their decisions and actions.
20. Another principal is fairness. It is a basic principle in public finance that government services should be targeted to those who need it most and can afford it least. In healthcare, good governance requires that all segments of society should have a stake in their wellness and that the lowest strata of society are able to access public health services. This is unfortunately not always the case. In the U.S., it has been estimated that up to half of the more than 1 million bankruptcies declared each year are attributable to medical costs and crises. One study found that “in no other rich country are people even remotely as likely to report having trouble with paying medical bills or going without care because of the cost.”
21. Malaysians are altogether more fortunate. Studies show that more than half of total health funding comes from government sources, while just under one-third is funded by patient out-of-pocket payments. The latter proportion compares favourably to economies such as South Korea where it is much higher at 50 per cent and China where it reaches 60 per cent.
22. It is easy to say that market-based healthcare should return to socialised medicine but one cannot so easily dismiss issues of rising cost, finance and effectiveness. As healthcare costs escalate, so do the amount of public subsidies. The mere fact that medical courses are much longer in duration and higher in costs than others suggests that more rather than less public funding is needed if there is going to be an adequate supply of medical practitioners. The key challenge in combating the rise in healthcare costs is to increase the proportion of patient out-of-pocket funding while maintaining affordable access for the poor.
23. I want to thank the organisers for this opportunity to share some of my thoughts and to all of you for your kind attention this morning. I wish you an informative and stimulating two days ahead.
24. It is now my pleasure to declare this seminar open.
- ‘Promoting Patient Safety by Preventing Medical Error’, J Am Med Ass (Oct 28, 1998) Vol. 280, No. 16 ↑
- ‘When docs get it wrong’, New Straits Times, 12 November 2007 ↑
- Foo Fio Na v. Dr Soo Sook Mun and Assunta Hospital (2007) MLJ 593 ↑
- ‘Managed Care and the Morality of the Marketplace’, N Engl J Med (July 6, 1995) No.l Vol. 333:50-52 ↑
- ‘Show Plans Benefit Patients’, New Straits Times, 19 November 2007 ↑
- Blendon RJ, et. al. ‘Inequities in Health Care: A Five-Country Survey, Health Affairs (2002); Vol. 21, No. 3:182-191 ↑