Court dismisses gynaecologist's appeal against suspension

He had removed ovary without patient's informed consent

Dismissing a gynaecologist's appeal against his suspension for professional misconduct, the Court of Three Judges made clear that a "mere signed piece of paper" was not enough to show there was informed consent from a patient scheduled to undergo surgery.

It said the consent form she signed was not relevant unless and until it was proven she had understood the exact nature of the operation she was to undergo.

The 34-year-old patient had made a complaint against Dr Jen Shek Wei, 62, for removing her left ovary without her informed consent in an operation in 2010. He was also found to have based his advice to her to have surgery on a scan, without doing the necessary further evaluation.

Dr Jen was held guilty of both charges by a Singapore Medical Council (SMC) disciplinary tribunal (DT) last year. He appealed to the Court of Three Judges in July.

The court raised this issue of informed consent "as a general point of practical significance to the medical profession", in judgment grounds on Tuesday as it affirmed the SMC tribunal's decision made last year to suspend Dr Jen for eight months and fine him $10,000. He also had to undertake in writing not to repeat the conduct.

The court, comprising Judges of Appeal Andrew Phang, Judith Prakash and Steven Chong, said that his conduct justified a deterrent sentence.

Dr Jen, who has been in practice for 28 years, had advised the patient to undergo surgery to remove a pelvic mass discovered during a scan without carrying out any further assessment of her condition.

The court raised this issue of informed consent "as a general point of practical significance to the medical profession", in judgment grounds on Tuesday as it affirmed the SMC tribunal's decision made last year to suspend Dr Jen for eight months and fine him $10,000. He also had to undertake in writing not to repeat the conduct.

Then, in the operation on Aug 21, 2010 to excise the mass, he instead removed her left ovary.

He did so without her informed consent, which breached SMC's Ethical Code and Ethical Guidelines. The patient, a finance manager, found out only later when she saw another doctor.

Dr Jen's lawyers, led by Senior Counsel N. Sreenivasan and Mr Charles Lin, argued the DT's finding was unsafe and unreasonable on various grounds and had erred in believing the patient's version of events.

The SMC was represented by lawyers Edmund Kronenburg and Kevin Ho from Braddell Brothers.

The court, in a 72-page judgment, was not convinced by Dr Jen's appeal and found, among other things, that informed consent had not been obtained to remove the ovary.

The court said the consent form alone that she had signed was "irrelevant" based on the unique facts of this case, as she had not understood the implications of the surgery.

"The form is, at best, an indicator (and no more) that the obligation had been discharged but it is not conclusive as a defence to a charge of failing to take informed consent," wrote Judge of Appeal Phang.

He said informed consent is a process by which a doctor is obliged to explain the required matters of a course of medical treatment or surgery, with the form being the end point.

The court found Dr Jen's version of the events " implausible" on the whole and said he had failed to raise a reasonable doubt in SMC's case that he had not obtained informed consent.

It said Dr Jen's indifference to his patient's welfare and his lack of remorse were aggravating factors and the tribunal's punishment of an eight-month suspension was on the low side.

It could have been 16 months instead, the court said.

Nonetheless, it retained the sentence, accepting that a discount was in order, to reflect the "inordinate delay" of three years it took for the SMC to issue the notice of inquiry in July 2015.

The court ordered the eight-month suspension to start in a month's time.

A version of this article appeared in the print edition of The Straits Times on November 16, 2017, with the headline 'Court dismisses gynaecologist's appeal against suspension'. Print Edition | Subscribe