Important message
The important message here is
that unless you are ready to go to the Court of Final Appeal, it is highly
likely that you will be found professional misconduct if you get complaint by
your patient for giving steroids without voluntary notification and explanation
to the extent that he can make an informed choice.
The judgment from the Court of Appeal
A
paediatrician was found guilty of professional misconduct in 2008 for three
charges:
- without proper justifications, he prescribed to the patient Celestamine which contained steroid for treating the patient’s upper respiratory tract infection on about 26 occasions;
- he prescribed to the patient Celestamine which contained steroid without advising the patient’s parent about the nature and side effects of Celestamine;
- upon enquiry of the patient’s father on whether Celestamine contained steroid, he did not reply him in the positive and instead, he told him that Celestamine was not regarded as a steroid.
He appealed to the Court of
Appeal against all three charges. The judgment was handed down on March 8,
2011 (CACV 374/2008). The appeal against
all charges was dismissed and the doctor remained guilty of professional
misconduct. What concerned me most is
the second charge. The charge was constructed
in a way that a doctor was strictly liable to advise about the nature and side
effects of steroids when prescribed. In
fact I have written on this subject several times before. The sad news is that the Court of Appeal
seemed to agree to this strict liability. Let us have a look at the judgment.
Hon Tang Ag CJHC agreed that the Appellant
could not be blamed for not informing the parents of any side-effect because
none was expected from the dosage and duration of steroid given. However, he also agreed to the judgment of the
Medical Council that the Appellant failed to inform the parents of the nature
of Celestamine that it contained steroid. He quoted the judgment from the Medical
Council:
Judgment of Medical Council: Para
14 and 15
For
a medicine which has known potential side effects, patients should be advised
of its nature so that they can make an informed choice as to whether to accept
the medicine. Steroid is such a
medicine, as it has been shown to have some significant side effects. There is general concern about the use of
steroid, and patients should be given the proper advice before it is
prescribed. This is so even if the
dosage prescribed does not have any side effect. It must be borne in mind that patients are not
medically trained and so are unlikely to understand technical medical terms. While it is neither necessary nor helpful to
advise patients of the chemical composition of the medicine, patients should be
informed in laymen terms what the medicines are.
We
bear in mind that Celestamine in the dosage prescribed has no significant side
effects. However, there was a danger
that the patient might see other doctors and if the other doctors also
prescribed steroid this might result in a dosage which would increase the risk
of side effects…
Hon Tang Ag CJHC ruled that the
above “is a finding which the Medical
Council was entitled to make, and I can see no reason to disagree.”
My observations
- No one seems to care anymore about the basic principle of innocent until proved otherwise. Was the doctor below expected standard in the first place? Had he breached the Code?
- The Code at 9.6: Where a drug is commonly known to have serious side effects, the doctor has the responsibility to properly explain the side effects to the patient before prescribing the drug. Note that only “side effects” are mentioned here. And in fact it should be “serious side effects”.
- However, in the charge, the doctor is expected to explain the nature and side effects of Celestamine. Note that “the nature” was added and this became the crucial point for upholding the second charge in the appeal. There was also another twist in the judgment: “For a medicine which has known potential side effects, patients should be advised of its nature…” There was a change from the logical “explanation of side effects if there are serious side effects” in the Code to “advise of nature when there are known potential side effects”. Can anyone think of any medication that does not have known potential side effects?
- I do not buy the reasons given in the Medical Council judgment. I consider them reversal of the burden of proof. Speculation that a patient would like to know doesn’t mean that failure to do so by the doctor equates professional misconduct.
- The long-shot argument that there might be prolonged use by other doctors if the nature of steroid was not explained was in fact adequately addressed by the strict requirement of drug labeling.
- An awkward situation is expected. Now imagine that you are a patient. Your doctor explains to you in a serious manner that he is going to give you a drug that contains steroid. However, there is absolutely no side effect expected from the dosage and duration given. My natural response is why he wastes time to tell me this nonsense? Then I would suspect that he must be hiding something and he is luring me to give consent to something serious. And then if I were a guy who follows the Medical Council logic, I would try to take all the other medications that the doctor gives me in excess dosage and prolonged duration than that prescribed, thinking that they should be safe as they are not specifically warned against like the case of steroids.
- Finally, note the comment by the judge. He just quoted the Medical Council judgment and said that the Medical Council was “entitled” to make such judgment. He was right not to step too much into professional judgment. If the medical professional wants to require the doctor to explain to patients each and every nature and side effect of each and every drug, just let it be.
My advice
No matter you find the above
argument and observation absurd or logical, they should be for interest only. They should not be given more weight than the
article of food and romance by Dr. Eve LAI. What you should remember absolutely is the
fact that it is now established firmly that doctors need to explain to patients
the nature and side effects of steroids or steroid containing medications when
they are prescribed. It is highly likely
that consent from patient is needed for steroids. Regarding how the side effects be explained
when there is no side effect, I can give no advice.
(Source: HKMA News April 2011)
