Singapore Medical Council v Kwan Kah Yee

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] SGHC 227
• Plaintiff Counsel: Philip Fong Yeng Fatt and Shazana bte Mohd Anuar (Harry Elias Partnership LLP)
• Docket Number: Originating Summons No 1 of 2015
• Date: 31 July 2015
• Hearing Date: 06 July 2015
• Subject Matter: Administrative Law,Disciplinary proceedings,Disciplinary tribunals
• Year: 2015
• Citation: [2015] SGHC 227
• Defendant Counsel: The respondent in person.
• Court: Court of Appeal (Singapore)
• Published date: 10 September 2015

Sundaresh Menon CJ (delivering the grounds of decision of the court): Introduction

This appeal was brought by the Singapore Medical Council (“the Applicant”) against the sentence imposed on Dr Kwan Kah Yee (“the Respondent”) by the Disciplinary Tribunal (“DT”) after the Respondent pleaded guilty to two charges of wrongfully certifying the cause of death. In this judgment, the charges will be referred to separately as the “First Charge” and “Second Charge”, and collectively as the “Charges”. In relation to both Charges, it was not only determined that the Respondent issued false death certifications, but also that he misled the investigators in an attempt to cover up his wrongdoing in the Second Charge. While the DT acknowledged the gravity of the offences, it imposed a sentence on the Respondent that struck us as manifestly inadequate. The DT decided that the Respondent should: have his registration as a medical practitioner suspended for a period of three months on each charge, these to run concurrently; be censured; undertake in writing that he would henceforth not engage in the conduct complained of or any similar conduct; and pay half of the costs and expenses of and incidental to the proceedings, including the costs of the Applicant’s solicitors.

The DT’s grounds were also to be published with the necessary redactions made to the patients’ details.

The Applicant considered that the individual sentences as well as the total sentence were too lenient and accordingly appealed. At the conclusion of the oral submissions, we allowed the appeal and gave brief reasons for doing so. We now set out the detailed grounds for our decision.

Background

The Respondent is a medical practitioner, against whom two complaints were made alleging professional misconduct under s 53(1)(d) of the Medical Registration Act (Cap 174, 2014 Rev Ed) (“MRA 2010”) for erroneously certifying the cause of death of two patients. The First Charge related to Patient A, and the Second Charge related to Patient B. Before the Respondent committed the acts that led to the Charges, he was already being investigated for acts committed on 16 October 2009¹ leading to a prior charge (“the Prior Charge”) being brought against him under the former Medical Registration Act (Cap 174, 2004 Rev Ed) (“the MRA 2004”). This is an important point to which we shall return.

The Disciplinary Committee (“DC”) held its inquiry into the Prior Charge on 5 and 6 April, 1 June, and 12 July 2011.² At the end of its inquiry, the DC found that the Respondent’s bases for the death certification were unsubstantiated, and that the Respondent ought to have declined to issue the death certificate as he had insufficient information.³ Additionally, he had gained access to confidential medical records through his own contacts, an act in violation of the patient’s confidentiality and which would in itself have warranted disciplinary proceedings.⁴

The Applicant raised a number of aggravating factors in relation to the Prior Charge:⁵ (a) the hardship caused to the deceased’s family; (b) the Respondent’s lack of remorse or regret; (c) the totally unjustified basis for stating that the patient had allegedly been suffering from Ischaemic Heart Disease (“IHD”) for six years; and (d) his misleading the DC. In mitigation, the DC considered and accepted as a mitigating factor the Respondent’s offer to assist the family with amending the death certificate.⁶

In the circumstances, the Respondent was sentenced some time in or after July 2011 as follows in respect of the Prior Charge:⁷ suspension of his registration as a medical practitioner for a period of three months; a fine of $5,000; and a censure. He was also ordered to give a written undertaking to the Applicant that he would no longer engage in such conduct, and within 30 days, to provide assistance to the patient’s family in respect of any necessary application to the Registry of Births and Deaths to rectify the death certificate, and to pay the costs and expenses of the proceedings. The DC further ordered that its decision be published.⁸

In the midst of the disciplinary proceedings relating to the Prior Charge, the complaints leading to the Charges were made. This fact will become relevant as it formed one of the bases for the sentence that was eventually imposed by the DT. We now turn to the facts relating to the two Charges which were at the crux of the present appeal.

The First Charge

Patient A passed away on 29 March 2010.⁹ He was 26 years old.¹⁰ His death was certified by the Respondent, who stated in the death certificate that the cause of death was bronchiectasis for three days with chronic obstructive airway disease (“COAD”) for a period of three months as an antecedent cause.¹¹ By a letter dated 18 November 2010, the Ministry of Health, acting on feedback, wrote to the Applicant stating that the Respondent had referred to an alleged chest X-ray from the Singapore Anti-Tuberculosis Association (“SATA”) dated 13 December 2009 which showed “radiological evidences of [Patient A’s] chronic obstructive airway disease” as the basis for his certification.¹² The Ministry further informed the Applicant that based on expert advice it had sought, there was no trace of Patient A having had COAD or bronchiectasis. The Respondent was therefore referred to the Applicant for investigation.¹³

Investigations revealed that indeed there was no such X-ray and further that 13 December 2009 was a Sunday, a day on which SATA was not open.¹⁴

The Respondent was given until 12 October 2011 to explain his certification of Patient A’s death.¹⁵ On 4 October 2011, he admitted his wrongdoing and pleaded for leniency.¹⁶ On 1 August 2013, the Health Sciences Authority (“HSA”) issued a letter at the request of the Applicant’s lawyers, opining as follows:¹⁷

… Dr Kwan Kah Yee had more than erroneously certified the above decedent’s cause of death. There was an attempt to deceive and undermine the whole process of death certification because: a) Dr Kwan did not show evidence that the decedent was his patient before his death. b) There were no records of the decedent’s patient records and X-ray films from SATA, contrary to what was alleged by Dr Kwan. c) Under the circumstances, this decedent’s death should have been reported to the State Coroner and an autopsy conducted to determine the exact cause of death.

5 The medical practitioner is duty bound to create a medical record when he sees a patient for the first time and to maintain it for some years. It is the duty and a requirement of the attending doctor to maintain the clinical notes of his patients. This includes the diagnoses and management of his patient. 6 The medical record is both a medical and a legal document. Recording and communicating information pertinent to the patient’s condition is important for patient care, but in the event of a bad outcome, it is equally important legally as evidence of the care received. A thorough and accurate medical record is evidence that the doctor provided appropriate care and can be strong evidence that the physician complied with the standard of care. 7 A doctor would be guilty of making a false statement if he states expressly that a doctor-patient relationship existed between him and the deceased when none existed, or if he represented himself as being the medical practitioner who attended to the deceased during the deceased’s last illness when in fact he did not do so.

[emphasis added]

The Respondent was charged with the wrongful certification of Patient A’s death on 14 October 2014.¹⁸ The HSA letter was admitted into the Agreed Bundle for the purposes of the First Charge.

The Second Charge

Patient B passed away on 29 March 2011. She was 32 years old.¹⁹ The Respondent certified her cause of death as IHD.²⁰ According to Patient B’s sister (“C”), who wrote a letter of complaint to the Applicant, the Respondent had certified Patient B’s cause of death as IHD based on nothing but a complaint of chest pain that Patient B had made to a general practitioner or a doctor at a nearby polyclinic.²¹ She said that due to the Respondent’s actions, her family was unable to have an autopsy done and would therefore never know Patient B’s true cause of death.²² C’s letter also stated that when she called the Respondent and asked for an explanation, the Respondent informed her that even 17-year-old girls have died from heart disease. When she pressed further and enquired whether that had any bearing on how her sister’s cause of death was established, the Respondent defended himself by rattling off a string of qualifications which, she said, was useless to her especially in the light of the grief that he had caused to her and her family.²³

Following C’s complaint, the Applicant served the Respondent with a notice of complaint on 28 November 2011. The Respondent was asked to explain: (a) the allegations put forth by C; (b) whether he had been involved in caring for Patient B before her death and if not, where he obtained her medical history before diagnosing her cause of death; (c) whether he examined the deceased and ruled out foul play before certifying her death; and (d) what he had communicated to C in their phone conversation as mentioned at [13] above.²⁴

The Respondent replied on 11 December 2011, stating that:²⁵ C was neither Patient B’s sister nor present with her at her death, and she had a record of making false accusations and misrepresentations of fact against various members of the community; Patient B’s family members were all satisfied with his services; an investigation team of police and forensic officers was present at the scene of Patient B’s death and accepted the death certificate as satisfactory; based on medical records obtained from various polyclinics and general practitioners (her medical records showed that she was previously...