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Changing landscape for the private practitioner – requiem for a good doctor

Dr. Steven KW Chow
Private Medical Practitioner
Kuala Lumpur
28.4.2006

Undoubtedly, the implementation of the Private Healthcare Facilities and Services Act 1998(PHCFS Act) and Regulations (P.U.(A) 137/2006) with effect from 1st May 2006 will change the current landscape in private practice both in private hospitals and in private clinics. The implications of many of the changes will be for the better but some will be unpredictable and undesirable.

The original spirit for PHCFS Act is noble. Among other things it is aimed to:

• regulate an orderly development of private healthcare ie for improving quality of patient care and to protect the rights of patients
• ensure that medical management of the patient shall remain in the purview of the medical practitioner

The Regulations (2006) was unveiled on 24th April by the Honourable Minister of Health. It possessed a phenomenal 105 items that all private practitioners have to eventually comply with to avoid running foul of the law.

Clinics already in existence, will be given a period of six-month to submit their application for a one-time registration with the Ministry of Health Malaysia failing which they can be deemed as illegal and the doctor can be prosecuted. As a consolation, assurance was given that implementation of the Regulations shall be a gradual and reasonable process.

In a nutshell, the Regulations comprehensively dictates virtually all activity that evolves round the doctor and his practice, from the moment the patient enters the clinic door to how adequate toilet paper should be located in the toilet. It puts a punitively-driven requirement for uniform administrative order, written policies and standard operating procedures that all clinics must comply with.

It can be expected that full and total compliance will required eventually. All clinics can envisage a substantial increase cost in staffing, administrative procedures, equipment and renovations. How this will translate into increased cost of delivery for patient care is yet to be seen.

Basic Emergency Medical Care Services

The good doctor can subscribe to the view that all primary care doctors who deal regularly with acute care should be adequately trained and equipped to provide such services as part and parcel of their daily practice. But, the Regulation requires all private medical clinics do the same. Never mind if the doctor by chance is a psychiatrist, andrologist or whatever.

He must be on hand for any occasional emergency patients who comes or is brought to his clinic by chance.

Though the good doctor is told that the call is for basic emergency care, however, the letter of the law dictates that he shall “provide immediate emergency care services which includes life-saving procedures when life, organ or limb is in jeopardy and management of emergency psychiatric conditions”.

In addition, equipment and services (as per listed in Schedule 5) shall be provided provide to render emergency resuscitative and life-support procedures. Among other things, he must have ventilation assistance equipment, intravenous therapy, electrocardiogram, suction equipment, laryngoscope and endotracheal tubes, drugs and other emergency medical equipment and supplies, necessary for the level of services to stabilize the patient. In summary, unless it is defined clearly in the Regulations, a learned counsel will tell the good doctor that the legal requirement requires duty of care to extend to more than basic emergency medical care.

The assurance was that the word basic meant just what it was suppose to mean, i.e. basic. We will be long gone by then and all that was said and heard will merely be hearsay in a court of law. Thus, there is more than enough bone of contention in the finer print of the law to drag the poor soul through the mud for his act of folly trying to save a dying patient with incomplete skills and equipment.

There shall be no act of good faith anymore - it is required by law. The best thing for the good doctor is to get down on his knees regularly and pray for a miracle that no such occasion shall ever by chance appear in his practice.

Effect on Medical Litigation

In legal terms the specificity of each and every item in the Regulation, when enforced, allows no room for discretion. Theoretically, each and every non-compliance, however small or trivial it may seem, is punishable by a serious fine, a jail term or both. Nothing is voluntary. Every action and omission shall be regulated ranging from the doctor’s ability and competence to deliver emergency care to the act of giving charity and community work.

The good doctor is indeed extremely concerned that these Regulations in its current state provide the perfect collateral opportunity for frivolous medical litigation. Yet it was claimed that these regulations protect the patients as well as the doctor. Arguably so, the benchmark of good medical care will now be adhering to written policies, guidelines and standard operating procedures. From hence, doctors will be tried and judged by these benchmarks and not the traditional benchmark of Osler which is to “heal sometimes, comfort always and never to harm”.

It can only be logical that there will be eventually a phenomenal increase in medical litigation. This epidemic will jeopardise the entire healthcare system of the country, both private and public. Private doctors may not want to treat really sick patients anymore as the risk is just too great. Doctors will indeed practice medicine by the book ie the law book. The already rising medical indemnity premiums will sky-rocket further. Eventually, new laws may then be needed to fix the effects of the old ones.

Unfortunately, as seen in countries like the United States of America and Australia, the natural medical legal response to such pressures is defensive medicine. In the end, cost escalates and the results will be disastrous for everyone.

Alas, what was it all for? In our effort to rid ourselves of a few bad apples we changed the entire tree that gave shade, shelter and comfort for generations of Malaysians in need. In its place will grow a heartless vine, full of legally twisted thorns reinforced by opinionated QCs brought in by medical indemnity entities from abroad. Instead of bad apples, you just might find the same in the form of bad grapes flourishing in its protective embrace. Unfortunately, the good in men cannot be created by law. Perhaps in our haste to grow more fruits we had sown the wrong seed.

Patient’s Rights

The Regulations judiciously guard patient’s rights. Good and caring doctors have no qualms supporting this. It is indeed their sworn duty.

With the new regulations good and caring is not enough. Among other things, it will now be required by law for the good doctor to:

• Provide the patient with the cost and details prior (own emphasis) to treatment
• Take reasonable steps to provide the patient with information about the nature of his medical condition and any proposed treatment, investigation or procedure and the likely cost of the aforesaid mentioned
• Provide a grievance mechanism plan which shall include a method by which each patient will be made aware of his rights to air his grievance and the grievance procedure

The first two are things that a good doctor should do anyway. If he is a businessman, it is good business sense but when conducted as part of a standard operating procedure, it casts a mercenary hue to the entire patient-doctor encounter. The third is something new altogether. In times of malicious contention, all the complainant has to do is to claim that he has not been informed.

Hence to safeguard his interest it would advisable for any good doctor to have each and every such legally required administrative detail properly documented and confirmed in writing by the patient. Failure to do so will leave him at the mercy of malicious action by any person out to harm or damage his livelihood. Without documented proof that he has discharged all his actions fully and in accordance to the law, defence in court will be an uphill task. Thus, the mercenary hue now becomes a thick black cloud lined with the colour of money

Death of Dr. Good - a future tale

Perhaps a possible patient-doctor encountered in years to come might sound like the story below.

A patient enters a clinic for the first time. For a moment he admires the Ikea-like décor and his eyes scan the many posters and certificates proudly espousing excellence and quality hanging on the wall.

“At last, this the place” he said to himself and approaches the reception.

Receptionist: “Good morning and welcome to Clinic International Medical Standards Organisation (IMSO 9009)”, I am Jamie and how may I help you?
Patient: “I am not well and I would like to see the doctor”.
Receptionist: “Sorry, Mr. X, after you have registered, we are required by law, PHCFS Act and Regulations’ to inform you of the following items namely the Grievance Mechanism of this clinic which you can use if you are unhappy with our service etc etc. When you have read and understood all these documents, please sign here at the dotted line”
Patient: “Sorry, can we do away with this rubbish and let me see the doctor?”
Receptionist: “I am sorry but it is required by law. By the way, we are also required by law to inform you first that to see the doctor, the consultation fee is RM XXX. This is a copy of the official fee schedule for your reference. Kindly sign here to indicate that we have complied with the law and we will proceed.”

Unhappily, patient signs the documents and is then ushered in to see the doctor after a short wait. “I have seen this guy before. His face looks so familiar” remarked the patient to himself as he sat down.

Doctor takes a full history and examines the patient, makes a tentative diagnosis and suggests that the patient should have an ECG and a blood test.

Doctor: “Before I proceed any further I am required by law to inform you that the ECG will cost RMXX and the blood test will cost RM XXX, if you are agreeable, please sign here”
Patient: Doctor, SH##@&&!!**F&&%%$$ (with a mouthful of exploding expletives) what is wrong with you guys anyway? Can’t you do anything without mentioning money first?
Doctor: Sorry sir, we are just following the law otherwise, you can complain and I will be dead. By the way, when we are finished please don’t forget to sign the checklist outside with my receptionist which minutes all the proceeding that we have had so far.”

Doctor completes the test, writes out a prescription and patient leaves the consultation room.

Receptionist: “Mr.X, here is your itemised bill, total payment is RMXXXX and please sign here. Your follow-up appointment is on 24.4.2020 and by the way, I have to inform you prior that the consultation fee for follow-up is RMXX. Please sign here to indicate that you have been informed.”

Patient refuses to pay and threatens to report the doctor. “Go ahead,” was the sharp reply, “I am not bothered, I have got it all down in black and white”.

Hastily he leaves the clinic in disgust and swears that he will never see any IMSO 9009 doctor ever again. Who can blame him? This was not what the public wanted. As for the doctor, he was just complying strictly with the law. If he does otherwise, he is a bad doctor and might just find himself doing locum at the prison clinic in Sungei Buluh.

And so he hastily departs to seek a second opinion and the human touch. He remembers his old family physician who used to practise in an old pre-war shophouse further down the noisy main road. There it was by the old banyan tree, the old house was indeed still standing though the paint was tattered and torn. The door that once welcomed the sick and suffering was closed forever but the aging signboard was still standing. It simply read “Klinik Dr. Good dan Rakan Rakan”

“Where has the good old doctor gone?” the flustered patient asked of the fruit seller peddling her freshly-cut pineapple and papaya in the shade of the old banyan tree. “He is dead” said the kind lady. “He died of a broken heart, when his doctor son left to work for the new IMSO 9009 clinic further up the road”.

No wonder he looked so familiar mused the patient to himself,

It will be a sad day for all if future doctor-patient relationships must be backed up with disclaimers and exclusively crafted legal documents. Perhaps it would have been spiritually more fulfilling for the good doctor to have stopped practising medicine here, packed his bag and became a missionary in Outer Mongolia.

Conclusion

The last paragraph of the Regulations simply summarises the spirit on how it will eventually be enforced ie “Where no penalty is expressedly provided for an offence under these Regulations, a person who commits such offence shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding one month or to both”. In brief, all doctors in private practice should be made aware that they shall be entering the orbit of zero-tolerance shortly.

It is imperative that all current private doctors and future ones read carefully each and each word of this Act and its Regulations and chart for himself a road map through this new landscape. Failure to do so will be to his personal and professional peril.

For a new doctor desiring to venture into this other world it would be prudent to think about it most carefully. Technically, the door closes on 1st May 2006 following which it will probably only open when exigencies of services do not require his presence. As an immediate positive impact, this new law could possibly stem the constant brain drain from the public sector though this was not one of its planned objectives. Government doctors will thus be surprised to find how an Act regulating the private sector will have such profound effect on their future options.

We were told that the crafters of this Act and Regulations have worked more than eight long years to bring it its present state of perfection. Based on past experiences, it is unlikely that it will be changed in any substantial way. If something had been missed, more regulations can always be added.

Who would blame the good doctor if he should want to give up medicine altogether. At the end of the day he might be better off rejoining the government service. For the moment, the grass does look judicially greener on the other side of the wall.

……….end

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