WMED Part 2: The SSC Case, What Goes Around Comes Around

On 21 May 2019, the SMC issued a press statement regarding psychiatrist Dr Soo Shuenn Chiang’s case that is to put it mildly, interesting.

Just to recap, Dr Soo was fined $50,000 by SMC for professional misconduct [Condensed from a previous posting: Weapons of Mass Ethics Destruction (WMED), published 9 Mar 2019]:

1. Dr SSC was a victim of a patient’s brother who posed as the patient’s husband to deceive Dr SSC.
2. Apparently, this imposter has not been punished so far for his act of pretending to be someone else.
3. Dr SSC was fined $50,000 for writing and giving a memo to this imposter free-of-charge.
4. The imposter told Dr SSC the patient was apparently suicidal and needed to be admitted to IMH against her will under the Mental Health (Care and Treatment) Act.
5. Dr SSC’s main sin was that of failure to verify the imposter’s identity and authorisation. It is important to reproduce here the entire paragraph (para. 30) from the Grounds of Decision (GD):

We also note that the preventive actions (i.e. verification of identity and authorisation) to be taken were not onerous. As submitted by Counsel for the SMC, the steps to be taken by Dr Soo were simple. We could only conclude that the failure of Dr Soo to take such steps reflected both a lack of concern for or appreciation of the required standards and an indifference to the patient’s medical confidentiality.

Now fast forward to the 21 May Press Statement. The SMC is now applying to the Court of Three Judges (C3J) for Dr Soo’s conviction to be set aside, as SMC has received new information that “raises doubt on the circumstances surrounding the incident, in the interest of justice”.

It is very important to note that the original application by SMC to the High Court was “for an extension to appeal for a reduction of the fine imposed on against Dr Soo”. In other words, the original intent was a reduction in the fine/punishment has now been changed to quashing the conviction. If this goes through, Dr Soo will NOT be guilty of professional misconduct, and not be fined less. He won’t be fined at all, if the conviction is set aside.

Apparently after the DT’s decision to fine Dr Soo $50,000 broke, the patient’s brother posted his version of the story on social media. Arising from this, “SMC approached both the patient’s brother and husband to record their statements. These statements were not obtained by the Complaints Committee (CC) prior to its referral of the patient’s complaint against Dr Soo for a formal inquiry by a Disciplinary Tribunal (DT)”.

What this seems to suggest is that:

1. The CC worked on a different set of information that was deemed as facts. The CC had come to the conclusion that it had to refer Dr Soo to the DT.
2. The DT, working on the same set of facts, convicted Dr Soo and fined him $50,000.
3. However, since taking statements from the patient’s brother and husband, there is a new set of information and “facts”.
4. This new set of information or facts “raises doubt” on the circumstances of the incident, which of course also raised doubt as to whether Dr Soo should have been convicted at all
5. Therefore, the SMC will now be applying to C3J to set aside the conviction.

This is a Face Palm X 50,000 times moment. One Face Palm per dollar.

Firstly, allow this hobbit to declare that this blog is not an attempt to influence the outcome of the appeal hearing, but a discussion about what has apparently transpired so far that led to Dr Soo’s conviction and the SMC’s appeal to set aside that conviction, based on what is publicly available especially the 21 May press statement and the SMC DT’s Grounds of Decision for this case.

Basically, SMC CC and SMC investigators (if any were involved at all) did not verify the facts, then proceeded to refer the case to DT, which in turn convicted and punished Dr Soo for not verifying the facts.

The irony is so thick, you can cut it with a lightsaber-sized diathermy. The accuser who accused Dr Soo for not verifying the facts was in fact, itself guilty of not verifying the facts.

This hobbit doesn’t know whether to laugh or to cry. Someone should write this into a play or something like that and make it into a literature textbook for secondary school students.

But it is good that at least some folks now finally appear to understand the word “doubt”. Because SMC disciplinary proceedings are ‘quasi-criminal’ proceedings, “doubt” is an especially important word. In criminal proceedings, the accused is deemed innocent until proven guilty. The burden of proof in criminal proceedings is “beyond reasonable doubt”, which is a very high threshold or stringent test to convict a person. That means a person can only be found guilty in a criminal proceeding when it is beyond reasonable doubt he is indeed guilty.

The same threshold applies to SMC disciplinary proceedings, although one must be forgiven if one questions whether the test of “beyond reasonable doubt” has been really competently applied in some cases, given how doctors appear to so easily convicted.

So, when you did not verify the facts before hand, and you are now unsure if the facts were even correct in the first instance, how you can say Dr Soo is “beyond reasonable doubt” guilty of professional misconduct”? Naturally, the SMC now has to apply for the conviction to be set aside, “in the interest of justice” after prosecuting him in the first place. The SMC is now just only appealing against itself but of course, the ultimate power and decision to set aside or not the  SMC DT Judgment, rests with the independent C3J.

Let is now go back to parts of para. 30 of the Grounds of Decision again for the sucker punch:

“We could only conclude that the failure of Dr Soo to take such steps reflected both a lack of concern for or appreciation of the required standards and an indifference to the patient’s medical confidentiality”.

Please note the bits in bold. If you edit the bold bits accordingly, it can also apply to whoever in SMC who was supposed to verify the facts before the CC and DT could decide on the case:

“We could only conclude that the failure of SMC to take such steps reflected both a lack of concern for or appreciation of the required standards and an indifference to Dr Soo’s rights to justice through a disciplinary process that is based on verified (not purported) facts surrounding the case”.

Obviously, the SMC also suffers from not having the services of a “verificationologist”!

An important question that needs to be asked is, how true was the original complaint, in the light of new information? All complaints made to the SMC are accompanied by a statutory declaration, which is a very serious undertaking. If the facts are so different, and that the statutory declaration was made based on false information, what further steps should be taken, to investigate and perhaps even punish the person who made a false statutory declaration? Was the disparity between old and new information just a difference in perspective or opinion, or a complete falsification of events and facts and an act of deception by a person?

Given the fact that investigations can now only be performed at the CC level and NOT the DT level, another question that needs to be asked is, what actual investigations (if any) were done for Dr Soo’s case? The larger question is, does SMC just take the complaints at face value and proceed to hear any case at the CC level, just because a complaint is accompanied by a statutory declaration?

Since we are on the subject of how to deal with complaints, it is heartening to note that on the same day (21 May 2019) it was reported that the MOH Review Workgroup (to review SMC) would look into screening out repeat cases and vexatious and frivolous complaints. MOH said that “such cases can make up about 10% of the complaints to SMC annually”. Currently, as long as someone makes a statutory declaration (which can be done for free at the SMC office), a CC has to be formed to look into the complaint, no matter how unreasonable or frivolous or vexatious the complaint appears to be.

MOH also said that “patients may face a time limit when filing complaints against doctors to the SMC in the future”. (CNA Report: Patient may face time limit to file complaints on misconduct of doctors: MOH). MOH noted that “quality of evidence would be diminished and that such a limit makes the process fairer”. The same report said that there were complaints brought to SMC even more than 15 years after the incident happened.

The suggested time-bar for making complaints has been said to be between 3 to 6 years (according to a Straits Times article dated 21 May 2019 – “Workgroup’s report aims to make medical disciplinary process fairer and faster”), which is reasonable and in fact already very generous. Currently there is no time bar at all for complaints made to SMC.

The Straits Times report also said this review workgroup will also clarify what exactly constitutes professional misconduct as well as informed consent. A clear understanding of both are necessary so that doctors will avoid practicing defensive medicine and over-treating patients and push up healthcare costs.

This hobbit thinks these are steps in the right direction and are long overdue. In addition, SMC should look into dismissing vexatious and frivolous complaints with costs so that these complainants know that there is a potential financial downside to their actions. This is not new, as The Law Society is already empowered to do so.

There appears to be some light at the end of tunnel. What has been reported is encouraging. But more can and should be done. This includes looking into how SMC, CC and DTs are constituted. How are the people who sit on SMC, CC and DTs chosen and trained to do the job they are supposed to do? The same principles apply to SMC prosecution lawyers – how are they chosen? How are they instructed by SMC? Who reviews their performance? In the area of informed consent, how can we have more clarity and flexibility at the same time (as said by Senior Minister of State for Health and Law Edwin Tong)?

The expectations are high that this workgroup will make a big difference to the currently manifestly unsatisfactory situation. But as a profession, we are also used to big disappointments. Hope for the best, prepare for the worst. I will still practise Survival Medicine for now.