The appeal to the Court of Three Judges (C3J) on the psychiatrist Soo Shuenn Chiang (SSC) case had a familiar ring to it. This is evident right from the word go, as delivered by the Chief Justice in The Judgment of the case,
The opening paragraph of the Judgment states,
“For the second time within a short span, this court is faced with a potential miscarriage of justice in a case involving alleged medical misconduct. Once again, the Singapore Medical Council (“the SMC”), which is prosecuting the case, has changed its position from that which it maintained before the Disciplinary Tribunal (“the DT”); once again, the task of the DT was made more difficult by the decision of the respondent, on this occasion, Dr Soo Shuenn Chiang (“Dr Soo”), not to contest the charge or the facts upon which it was based; and once again, the DT failed to carefully consider all the relevant facts and circumstances before it pronounced the respondent guilty. On this occasion, the DT then meted out a sentence that was in excess of both that sought by the SMC and that submitted by Dr Soo. And once again, an outcry from the medical profession sparked a reaction from the SMC”. (emphasis mine in bold and italics)
This hobbit is not a halfling of letters, and with his limited language skills, has to resort to Hokkien to describe what he thinks was the Chief Justice’s mood when he delivered this – in one word – sian. Sian in Hokkien means tired, with more than a tinge of frustration perhaps.
Later on in para. 68 of the Judgment, it was stated, “We make this observation because it seems to us unsatisfactory that reliance has been placed on the medical profession’s propensity to protest loudly over the decisions of disciplinary tribunals and/or courts, with dire warnings of the spectre of defensive medicine, in order to secure in individual cases the result that is desired and/or perceived to be just. The doctor against whom a charge is brought also has a responsibility to look after his own interests. Dr Soo could have contested the case on liability, and subsequently, even after pleading guilty to the Charge, he could have appealed against at least the sentence imposed on him, but he chose to do neither. It is not unreasonable in such circumstances to hold that he ought to lie on the bed that he has chosen to make for himself”.
This hobbit begs to disagree with the learned and wise C3J on the point of a “spectre”. First, it is not a “spectre”, but reality. The consequences of the SMC DT’s judgment (before the C3J’s Judgment) on the Lim Lian Arn (LLA) H&L Case is an increase in both the practice of avoidance defensive medicine and a general rise in price for performing a H&L injection. This is not a spectre, but evidence documented through research and published in a peer-reviewed medical journal. Seventh Month has come and gone and it is now Halloween, but this hobbit hasn’t seen any Ghost of Defensive Medicine yet. If you ask me, it’s more like the Golem of Defensive Medicine, which is very hard to kill once it comes to life.
It is true that a doctor “has a responsibility to look after his own interests”. Unfortunately, “his interests” are also defined according to ‘his’ perspective – which in this case, seems to be Dr SSC wants to plead guilty, pay the fine and move on and get on with his own life. It is his prerogative and perspective, not anyone’s else. Just as we enshrine patient autonomy and patient-centric-ness in promulgating the Modified Montgomery (MM) Test, it should be argued that here, in disciplinary tribunal proceedings, a doctor’s interest has to be defined from a doctor-centric perspective, not public interest-centric or medical profession-centric.
And certainly, arising from such a basis, the doctor has “to lie on the bed that he has chosen to make for himself”. In fact, there is no strong evidence that Dr SSC was unwilling to lie in this bed he made for himself. We shall nominally name this the “SSC bed”.
But what about the other 15,000 or so doctors licensed to practise medicine in Singapore? In our English Common Law system based on legal precedents, it appears that we too have to possibly, if not probably, lie in the same bed, or at least a bed of similar proportions and design, with mattresses, bed sheets and blankets of similar specifications as the SSC bed, when faced with a situation similar to Dr SSC.
That, my friends, is the nub of the problem.
Many of us do not have “the propensity to protest loudly over the decisions of disciplinary tribunals and/or courts” because we felt Dr SSC was dealt unfairly by the DT. Yes, unfairness to Dr SSC is a starting point for dissatisfaction, but the crux of the matter is that the $50,000 fine or $100,000 fine (LLA case) could also apply to me. SSC’s bed can also become my bed. Other than anger, fear is also a very powerful motivator to “protest loudly”.
Legal minds may argue that there is a good chance that Dr SSC’s bed may not fit me when my case is argued in a DT or a court when the SSC legal precedent is tested in real life again. This hobbit always finds this sort of argument rather callous from a doctor’s perspective. After all, which doctor wants to be a “test case” for a legal principle? I would rather be a test case-patient for a new experimental surgery to remove my kidney than a test case in a court.
Therefore, we must assume that the bed made by Dr SSC for himself to lie in, should also apply to some 15000 other doctors as a legal precedent. Is there any other prudent way to look at it?
Even though the appeal from SMC to appeal against itself has succeeded and the case against Dr SSC has been thrown out, many other questions still remain.
Moving forward, the quality of the investigative work of SMC has to questioned. How much can a Complaints Committee (CC) and DT rely on the SMC investigators’ work when they come to their conclusions over a case? In this case, the “facts” were not verified, which led to wrong conclusions being made. As the saying goes- garbage in, garbage out.
Secondly, because the case was thrown out, the issue of sentencing became moot. But it would have been terribly interesting if the C3J had also looked into and commented on how the DT arrived at a fine of $50,000, which was well in excess of what both parties (the SMC lawyers and Dr SSC’s lawyers) asked for.
In other words, there are actually two SSC beds. The first is the bed of pleading guilty and conviction in SSC’s case; this bed had been dismantled and such an outcome therefore made looking at the bed of sentencing unnecessary. But in all probability, most doctors were most uncomfortable lying in the SSC bed of sentencing, not the other bed of pleading guilty.
Finally, a point of secondary importance that could be looked into would be to see if there was any deception or falsehood on the part of the complainant’s brother and husband in firstly asking for the memo from Dr SSC, and secondly in the statutory declaration made by both of them subsequently. If there was deception and falsehood, what further actions could be taken?
All in all, the SSC case has been a very scary incident for many of us, even though many of us didn’t see any ghosts, wraiths or spectres…..
hobbitsma 
Nice article. Shortly after the judgement, MOH proceeded to publish a circular illustrating a general guide principles of communication of medical information.
While I appreciate the reiteration and reminder to practitioners of the relevant SMC ECEG and relevant clauses from the PHMC act, there are several concerns which I will list below which have not been addressed adequately. The circular is also coincidentally timely, released shortly after a recent High Court overturning of the much publicised SSC case.
The concerns are as below:
1) Only public healthcare instituitions, large private hospitals and polyclinics were sought for input.
Private clinics and private hospitals differ very much in terms of standard daily operations as compared to public healthcare instituitions. There are less layers of personnel which a caller has to go through before reaching the doctor/provider himself in the private sector. This can both be a boon and a bane for the provider, as the doctor is able to be more responsive to the needs of his patients. It also means, however, that the access to medical information for the patient may be easier, and hence there may be a need here to be more cautious and wary.
Before publishing a circular like this, relevant input should also be sort from private clinics and specialist clinics – as these see the majority of our patients and form the frontline of primary care.
2) Are suggestions for verfications in the circular valid in a day-to-day context and easy to conduct?
To verify, we would need something to check against. A caller can claim who he is to be. A caller may also be able to offer the aforementioned identifiers in the circular (for instance, he may have knowledge of the NRIC, address, date of birth etc of the patient), should he be close to the patient or actually have in his hands, the details of the relevant identifiers. Only if the doctor or instituition already has the details of next-of-kin for verification, then will verification be possible. It would not be possible to have records of next-of-kins if for instance, they were not involved during the care delivery process, or if during the initial clinical encounter, they were not even present together with the patient.
MOH and SMC must acknowledge that in real clinical settings, there are very real practice constraints. On one hand, most practitioners will definitely not want to breach the ECEG and protect our patients. On the other hand, it has to be acknowledged that doctors can be placed in a Catch 22 situation where expedient disclosure is needed for the health and safety of the patient (i.e. in emergency context, in suicide context – as per SSC’s case).
As per what was transpired in the SSC proceedings, not expediently trying to help the patient by disclosing the information – of which may have relevant and reasonable impact on the immediate health and safety of the patient, and instead requiring the caller/patient to go through layers of red tape for the information, would be the epitome of defensive medicine.
Which brings us to my most important concern – trust
3) Trust goes two ways
Most of us trust our patients and their families. The fiduciary duties of a doctor can only be carried out properly when it is enshrined with a good foundation of trust. Trust can be broken by both the practitioner and also by the patient/their family, especially if trickery/impersonation is used to obtain this information for purposes otherwise not intended for the care of the patient.
The relevant authorities need to be cognizant that practitioners are vulnerable in this aspect. We cannot reliably predict which of our patients or their families will resort to criminal means to trick us for medical information. Telling practitioners/instituitions to adopt a blanket-all approach to deny any attempts for request of medical information will undermine trust, and also undermine the health and safety of our patients.
Some form of legislation or measure needs to be formulated to protect both doctors and patients in this aspect so that it is not abused.
Overall, the MOH circular seems to try to water down the whole C3J judgement of the case, which actually brought to light and uncovered what has been long-standing deficiencies of the SMC/CC/DT system.
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