Singapore Medical Council v Soo Shuenn Chiang

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 18 October 2019
• Neutral Citation: [2019] SGHC 250
• Plaintiff Counsel: Chia Voon Jiet, Koh Choon Min and Charlene Wong Su-Yi (Drew & Napier LLC)
• Date: 18 October 2019
• Docket Number: Originating Summons No 5 of 2019
• Hearing Date: 08 July 2019
• Subject Matter: Medical profession and practice,Professional conduct,Professions
• Published date: 22 October 2019
• Defendant Counsel: Mak Wei Munn, Ong Hui Fen Rachel and Pek Wen Jie (Allen & Gledhill LLP)
• Court: High Court (Singapore)
• Citation: [2019] SGHC 250
• Year: 2019

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

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.

Dr Soo is a consultant psychiatrist at the Department of Psychological Medicine and the Director of the Neuroscience Clinic at National University Hospital (“NUH”). At the material time in March 2015, he was an associate consultant psychiatrist at NUH. He was charged with: (a) failing to verify the identity of a caller claiming to be the husband of one of his patients (“the Husband”) before issuing, in reliance on information provided by the caller, a memorandum containing confidential medical information about that patient (“the Memorandum”); and (b) then failing to take appropriate steps to ensure that the confidential medical information in the Memorandum was not accessible to unauthorised persons. Before the DT, Dr Soo pleaded guilty to a charge of professional misconduct under s 53(1)(d) of the Medical Registration Act (Cap 174, 2014 Rev Ed) (“the MRA”) for failing to maintain the medical confidentiality of that patient (“the Complainant”). In those proceedings, both the SMC and Dr Soo agreed that the Complainant’s brother (“the Brother”), who is also the Husband’s cousin, had been the caller and had falsely claimed to be the Husband; he had also subsequently collected the Memorandum from Dr Soo’s clinic staff. As Dr Soo pleaded guilty, the DT turned to sentencing. It ordered Dr Soo to pay a penalty of $50,000 and made a number of other commonly-made disciplinary orders: see Singapore Medical Council v Dr Soo Shuenn Chiang [2018] SMCDT 11 (“GD”) at [32]. Neither Dr Soo nor the SMC initially appealed against the DT’s decision, even though both parties had submitted for a fine of a much smaller sum – not less than $20,000 in the case of the SMC, and no more than $5,000 in the case of Dr Soo.

After the DT published its GD a few months later, the SMC applied to the High Court for a review of the DT’s decision on the ground that the penalty of $50,000 imposed on Dr Soo was manifestly excessive and/or seriously or unduly disproportionate. This was motivated by concern that the DT’s decision could lead to defensive practices in the medical profession. After news of these developments became public, the Brother published a post on Facebook seeking to provide his account of the events. In his post, the Brother claimed that he had not impersonated the Husband, who in fact had contacted Dr Soo. The SMC presumably then interviewed the Brother and the Husband before applying to us for leave to admit into evidence their respective statutory declarations. These set out an account of the circumstances under which the Memorandum had been prepared by Dr Soo and collected by the Brother that was different from the account set out in the Agreed Statement of Facts dated 16 November 2018 (“the Agreed Statement of Facts”), based on which Dr Soo had pleaded guilty before the DT. The account presented in the Brother’s and the Husband’s statutory declarations was also somewhat different from the account posted by the Brother on Facebook. On the basis of the version of the facts provided in the Brother’s and the Husband’s statutory declarations, the SMC amended its application to the High Court to seek the setting aside of Dr Soo’s conviction and sentence.

We begin by setting out in some detail the facts leading to this appeal because our decision hinges on a close examination of them.

The facts The charge against Dr Soo

The charge against Dr Soo (“the Charge”) which was set out in the Notice of Inquiry dated 24 May 2018 (“the Notice of Inquiry”) reads as follows:

That you, [Dr Soo], a registered medical practitioner under the [MRA] are charged for [sic] failing to maintain [the] medical confidentiality of a patient, [the Complainant], in that whilst attending clinic at [NUH] on 20 March 2015, without verifying the identity of a caller claiming to be [the Complainant’s] husband, and in reliance of [sic] the information provided by the said caller, you issued a memo addressed to “Ambulance staff / Police in charge”, and failed to take appropriate steps to ensure that [the Complainant’s] confidential medical information contained in the memo was not accessible to unauthorised persons, amounting to a breach of Guideline 4.2.3.1 of the 2002 edition of the Singapore Medical Council Ethical Code and Ethical Guidelines.

…

and that in relation to the facts alleged, your aforesaid conduct amounts to such serious negligence that it objectively portrays an abuse of the privileges which accompany registration as a medical practitioner, and that you are thereby guilty of professional misconduct under section 53(1)(d) of the [MRA].

[emphasis added]

It is evident from the italicised portions of the Charge that its gravamen was a failure to maintain the medical confidentiality of the Complainant by: (a) failing to verify the identity of a caller who claimed to be the Husband before issuing the Memorandum in reliance on information provided by the caller; and (b) then failing to take appropriate steps to ensure that the Complainant’s confidential medical information in the Memorandum was not accessible to unauthorised persons.

Background to the disciplinary proceedings

There is some history to the Charge. On 19 January 2015, the Complainant was brought and admitted to NUH by the Husband after she took an overdose of Tramadol. On the next day, 20 January 2015, she was reviewed by Dr Soo, who diagnosed her with adjustment disorder with depressed mood and alcohol misuse, and noted that she bore a risk of self-harm and presented with a history of depression. She was discharged later that day with a memorandum referring her to a family service centre. That memorandum also stated that the Husband had been informed of her proposed treatment plan and was supportive of it. The Complainant’s medication was handed over to the Husband and her family members for safekeeping. The Complainant subsequently defaulted on her follow-up appointment at NUH.

Two months later, on the morning of 20 March 2015, Dr Soo was in the midst of a clinic with a roster of 17 patients scheduled to see him when he received a telephone call from a caller who informed him that the Complainant was suicidal and needed to be brought to the Institute of Mental Health (“IMH”) for an urgent assessment of her suicide risk (“the Call”).

Dr Soo evidently accessed the Complainant’s electronic records, and at or around 10.28am, he made a contemporaneous record there (“the Call Note”). The Call Note recorded the following:

…

Husband called

Felt his wife is unwell

Been talking to herself, verbalising suicidal ideation

Noted recent stress that her son apply PPO [Personal Protection Order] against her while she continues to be violent towards him

Felt his moving out of house had trigger her low mood

Tried to send her to IMH but the ambulance staff and police has not been enforcing it.

Wish to get help

Plan:

Memo to request for assessment at IMH in view of suicide threats

[emphasis added]

It is evident from the italicised portions of the Call Note that Dr Soo was under the impression that the caller was the Husband. It also seems clear to us that whoever it was who called Dr Soo was in possession of a number of key pieces of information about the Complainant, including the following: the fact that Dr Soo was the consultant who had previously attended to the Complainant when she was admitted to NUH in January 2015; the Complainant’s personal information and identification details, without which, we were subsequently informed, Dr Soo would not have been able to access her electronic records; and the Complainant’s medical state, which, as it happened, was consistent with her history of depression and the risk of self-harm and suicidal ideation. It is also evident from the Call Note that Dr Soo was given the impression that the situation was urgent, in that the police and an ambulance had been summoned to take the Complainant to IMH but to no avail because of her refusal to accede to their requests.

Dr Soo wrote the Memorandum almost immediately at or around 10.32am. The Memorandum contained the Complainant’s name, NRIC, age and gender, and it stated as follows:

To: Ambulance staff/ Police in charge

Re: [The Complainant]

The above mentioned was seen at NUH on 20th Janu[a]ry 2015.

She subsequently defaulted [on] her follow up at NUH psychological medicine clinic.

Her husband had called up to raise concern over her recent suicidal threats past few day [sic].

She will need an assessment at IMH to assess the suicide risk.

Kindly assist the family in ensuring that she gets a suicide risk assessment at IMH.

…

[emphasis added]

It is evident from the italicised portions of the Memorandum that Dr Soo had contemporaneously checked the record of the Complainant’s previous visit to NUH and taken note of the fact that the Complainant had not followed up on her past treatment. The Memorandum also reinforces the point we made earlier (at [10] above) that Dr Soo was...