QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Dr Cheng Toh Yeong
|- and -
|The General Medical Council
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Eleanor Grey (instructed by GMC Legal) for the Respondent
Hearing dates: 23rd June 2009
Crown Copyright ©
The Hon Mr Justice Sales:
1) Improper conduct bringing disrepute to the medical profession by engaging in a sexual relationship with a patient (GN) during the period from 21 April 2003 to around March 2005, and failing to preserve the absolute confidence and trust of a doctor-patient relationship, in breach of the Singaporean Medical Registration Regulations and the SMC's Ethical Code and Ethical Guidelines;
2) Improper conduct bringing disrepute to the medical profession by tampering with and/or improperly causing inaccurate changes to be made to the biodata of a patient (GN) during the period from around June 2004 to around August 2005, and thereby failing to keep medical records which were accurate, in breach of the Singaporean Medical Registration Regulations and the SMC's Ethical Code and Ethical Guidelines;
3) Professional misconduct by failing during the period from February 2003 to March 2005, to record or properly document details of the patient's (GN) visits, medical condition and results on medical examinations in the case notes for the period of treatment; and
4) Professional misconduct by failing properly to maintain patient confidentiality by improperly disclosing to a third party (GN) confidential information relating to the treatment and care of two other patients of the Kedang Kerbau Hospital during the period from February 2003 to March 2005.
"In sentencing, this Committee must also realise that the charges against him arises mainly as a result of his relationship with [GN] and have nothing to do with the way in which Dr Yeong generally practises. Neither was the care given to [GN] in any way compromised. Just as importantly, his acts have no impact on any other patient."
"The complainant had acted to 'punish' Dr Yeong and to make him suffer. She had also benefited financially to the amount in excess of about $90,000 from the relationship. The complainant played an active part in pursuing the relationship and in some respects was the dominant party (making requests and demands). Dr Yeong passively gave in to many of these demands to oblige her and avoid confrontation/conflicts with her and his wife. This only allowed the demands and problems to escalate culminating in a situation whereby he could no longer meet the demands. This led to anger and frustration in the complainant, who became more demanding. …
Judging from the testimonials and references, Dr Yeong is held in the highest regard by his professional colleagues and patients. His current mentor Dr Robert Forman has confirmed that since his time working in London, no complaint about Dr Yeong had been received. Dr Yeong should be allowed to work and contribute to the best of his ability to Singapore medicine. He erred and should be given a chance to redeem himself. …
The likelihood of recurrence is extremely low and this is reflected in the literature."
"In respect of the first charge, it is important to bear in mind that one of the most fundamental duties of a doctor, recognised for as long as the profession has been in existence, is that a doctor must never permit his professional relationship with a patient to deteriorate into an association which would be described as improper. The Courts in Singapore and also in England have always supported the finding of the medical body that sexual intercourse with a patient is a most serious breach of the proper relationship between doctor and patient amounting to infamous conduct in a professional respect.
In any sexual relationship between the doctor and the patient, the principle is whether there is any exploitation of the patient. The patient may be physically or psychologically vulnerable to the doctor's advances. There is no evidence of this in your case. In your case, the patient was not vulnerable, and in the view of the Committee, the patient was in fact the dominant person in this doctor-patient relationship. From the first encounter, it was by mutual consent. Furthermore, there was a series of financial transactions as a result of which, a total of over $90,000 was paid to the patient over a period of 2 years.
The Committee also noted that you readily pleaded guilty to prevent putting the complainant/patient through the limelight of a hearing to state her case.
Your conduct transgressed the professional boundary between the doctor and his patient. However, you have no previous offences. On the basis of the report from Dr Ung Eng Khean, Senior Consultant Psychiatrist and Psychotherapist (Adam Road Medical Centre and MD Specialist Healthcare), the Committee is of the view that the risk of you repeating your offence would be very low.
Factors that helped the Disciplinary Committee in deciding the verdict are that:
i) Your practice of medicine is exemplary;
ii) There is no previous evidence of any wrong doing;
iii) You pleaded guilty to the charges;
iv) You are now aware of the seriousness of your misdoings and the damage done to the profession;
v) You have accepted that your conduct was abhorrent and disgraceful; and
vi) You have many favourable testimonies from patients and colleagues.
One particular concern in such cases of moral turpitude is that the public reputation of the profession may suffer and public confidence in it may be prejudiced.
It is not the function of the Disciplinary Committee to be punitive, but it is tasked to mete out robust determination when necessary – on this occasion, the transgression of professional boundary between the doctor and the patient.
The Committee is of the view that your action is a serious breach of professionalism and has to send a clear signal to the profession that gross improper behaviour between a doctor and his patient cannot be tolerated. The Committee also stresses the need for protection of the public and to restore public confidence in the profession. The Committee considers that this was a prolonged relationship that spanned almost two years.
Further, the Committee takes into account the testimonials and letters provided by your patients and colleagues in the medical profession, and notes that you are a competent doctor."
"Functions of the Investigative Committee
(1) This section applies where an allegation is made to the General Council against-
(a) a fully registered person; …
that his fitness to practise is impaired.
(2) A person's fitness to practise shall be regarded as "impaired" for the purposes of this Act by reason only of-
(a) misconduct … or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care professional … to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect…".
"Functions of a Fitness to Practise Panel
(1) Where an allegation against a person is referred under section 35C above … to a Fitness to Practise Panel, subsections (2) and (3) below shall apply.
(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit-
(a) except in a health case, direct that the person's name shall be erased from the register;
(b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or
(c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests.
(3) Where the Panel find that the person's fitness to practise is not impaired they may nevertheless give him a warning regarding his future conduct or performance."
1) Determination of whether the facts of the case alleged against the practitioner are made out;
2) Consideration whether such facts as are established amount to impairment of the practitioner's fitness to practice; and, if so,
3) Consideration of the appropriate sanction to be imposed.
"This factor, together with Dr Yeong's continual reminders of his mistake by way of separation from his family, his continued supervision and mentoring by Robert Forman, the excellent record for the time that he has been with Dr Forman, his remorse and efforts to 'learn' from his mistake, his re-established faith and relationship with God, his continued work with myself and his pastor, and the vastly improved marital relationship would lead me to the conclusion that Dr Yeong does not pose a risk to patients in his capacity practising as an obstetrician and gynaecologist. In fact, given all the factors above, I would rate that a boundary transgression would be more likely in a group of doctors selected at random than in Dr Yeong's case …
Dr Yeong erred and he accepts his responsibility. His case is unique in that he was the non-dominant party. Everyone has suffered enough and I believe that there should be closure and every effort made to move forward afresh. Dr Yeong should be given a chance to redeem himself, and there is no better avenue than to allow him to avail his skills to those in need, and to make a difference to their lives."
"As mentioned in my previous report dated 9th May 2008, many additional favourable prognostic factors continue to lead me to opine the Dr Yeong will not re-offend. These factors include: (1) Dr Yeong's remorse and continued reminders of his mistake when he thinks of his wife and children; (2) His continued supervision and mentoring by Dr Robert Forman and the excellent record for the now fairly considerable time he has spent with Dr Forman; (3) His commitment to continued counselling with his pastor and his strengthened personal spiritual relationship; (4) His commitment and compliance to continued follow-up and monitoring by myself; (5) his commitment to improve as a person and doctor as evidence by his initiative attending the recent course on medical ethics; (6) Much improved inter-personal relationship with his wife and improved self-awareness and understanding in both his case and his wife's; and (7) The strong support, commitment and moral guidance given to Dr Yeong by his parents-in-law (his father-in-law, a practicing doctor, and his mother-in-law, a lawyer) throughout this difficult time.
I continue to be of the opinion that Dr Yeong does not pose a risk to patients in his capacity practicing as an obstetrician and gynaecologist. In fact, given all the factors above, I would rate that a boundary transgression would be more likely in a group of doctors selected at random than in Dr Yeong's case."
"The Panel has taken account of the evidence relating to the circumstances in which you embarked upon a prolonged sexual relationship with a patient. It has not heard from Madam GN. On your account, the relationship began after she had come to you as a patient. It did not commence immediately but only after you had seen her socially. Subsequently, you undertook to make regular financial payments to Madam GN and the sums involved over the duration of your relationship were significant.
The Singapore Disciplinary Committee, although it did not hear evidence from Madam GN, as a consequence of your guilty plea, found that she was not vulnerable and concluded that she was the dominant partner in the relationship. However, it is not her behaviour which this Panel must focus upon. The question for this Panel to address relates to whether you departed from the standards of conduct and behaviour which are expected of medical practitioners. You conceded that the standards of conduct which apply to doctors in Singapore are the same as those which apply to doctors in the UK. You accepted, following questioning from a member of the Panel, that once the relationship with Madam GN had become sexual you did not consider terminating your relationship as her doctor, although the Panel has noted that it is submitted on your behalf that you made a number of unsuccessful attempts to end the relationship with her. The Panel has also had due regard to the information which suggests that your personality made it difficult for you to refuse Madam GN. The Panel has contrasted that with the duty of a doctor to ensure that the proper doctor patient relationship is maintained.
You accepted that, following a conversation with Madam GN, you accessed the medical records of Madam TCH (who was not your patient) at her request and divulged confidential information about her to Madam GN. You further accepted that Madam GN might have seen the name of Madam LM on medical records that were in your room at the clinic when Madam GN visited, although you maintained you did not discuss Madam LM with Madam GN.
The Panel noted that it was only under cross examination in this hearing that you conceded that your actions in tampering with medical records and in failing to maintain proper medical records had the potential to compromise Madam GN's care. You conceded that you had let her down.
'Good Medical Practice' sets out the duties and responsibilities of a doctor. It states that "you must not allow your personal relationships to undermine the trust which patients place in you. In particular, you must not use your professional position to establish or pursue a sexual or improper emotional relationship with a patient or somebody close to them." 'Good Medical Practice' also states that "patients must be able to trust doctors with their lives and wellbeing…In particular as a doctor you must respect patients' dignity…" and "…avoid abusing your position as a doctor". 'Good Medical Practice' also makes clear that doctors must be honest and trustworthy, must respect patients' dignity and privacy, respect and protect confidential information and must avoid abusing their position as a doctor. It states that "Serious or persistent failures to meet the standards in this booklet may put your registration as risk."
Both editions of 'Confidentiality: Protecting and Providing Information' indicate that doctors hold information about patients which is private and sensitive and that confidential information will not be given to others unless the patient consents or you can justify the disclosure; and patients have a right to expect that information about them will be held in confidence by their doctors. Confidentiality is central to trust between doctors and patients. The guidance also makes clear that, when a doctor is responsible for personal information about a patient, the doctor has a duty to make sure that the information is effectively protected against improper disclosure at all times.
'Indicative Sanctions Guidance' makes clear that occasional one off mistakes are unlikely in themselves to indicate a fitness to practise problem but that serious or persistent failures to meet the standards of 'Good Medical Practice' may put a doctor's registration at risk.
Paragraph 11 (S1-2) states that:
'Neither the Act nor the Rules define what is meant by impaired fitness to practice but for the reasons explained below, it is clear that the GMC's role in relation to fitness to practice is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practice either with restrictions on registration or at all.'
Paragraph 13 (S1-3) states:
'…in addition to the protection of the public, the public interest includes, amongst other things:
a. Protection of patients
b. Maintenance of public confidence in the profession
c. Declaring and upholding proper standards of conduct and behaviour.'
The guidance further states at paragraphs 53, 54 and 55 (S3-13) that :
"53. To practise safely, doctors must be competent in what they do. They must establish and maintain effective relationships with patients, respect patients' autonomy and act responsibly and appropriately if they or a colleague fall ill and their performance suffers.
54. But these attributes, while essential, are not enough. Doctors have a respected position in society and their work gives them privileged access to patients, some of whom may be very vulnerable. A doctor whose conduct has shown that he cannot justify the trust placed in him should not continue in unrestricted practice while that remains the case.
55. In short, the public is entitled to expect that their doctor is fit to practise, and follows the GMC's principles of good practice described in Good Medical Practice…"
Paragraph 58 (S3-15) indicates that:
"A question of impaired fitness to practise is likely to arise if…the doctor's behaviour was such that public confidence in doctors generally might be undermined if the GMC did not take action."
The Panel has been referred to the case of Cohen  EWHC 581 (Admin). It considers that this case is distinguishable from the case of Cohen. Whilst the conduct which is the subject of these proceedings has not been repeated, the Panel is of the opinion that this is not conduct which is easily remediable.
The Panel finds that the passage of time since your misconduct occurred and the absence of evidence that you have repeated the misconduct found proved does not dilute, or downgrade, the seriousness with which it views your departure from the standards required of registered medical practitioners. You conducted a sexual relationship with a patient over a prolonged period of time; you failed to maintain patient confidentiality; and you failed to adhere to the standards expected in terms of record keeping. Your failures are widespread and serious.
The Panel has noted the evidence that you are clinically competent, and that you are valued and respected by your patients and professional colleagues. You have a degree of insight into your wrong doing but the Panel is still concerned that this may not be fully developed. You continue to receive counselling from a psychiatrist and from a minister of religion. You have reflected upon what happened and have modified the way in which you interact with patients to ensure that the proper doctor patient boundaries are now always maintained. You undertook a course in Medical Ethics in London between 15- 19th September 2008.
However, the Panel has also considered whether there is a risk that you might repeat the behaviour which led to this hearing. It has had regard to the nature of your medical practice; and your personal circumstances. It has considered carefully the testimonial and other evidence which described you as, among other things, warm and empathic. Taking all those factors into account, the Panel considers that there may still be a risk that you could be tempted to repeat your misconduct.
In reaching its decision on impairment the Panel noted that in the case of Cohen, Silber J indicated that:
'the task for the Panel is to take account of the misconduct of the practitioner and then to consider it in the light of all the other relevant factors known to them in answering whether by reason of the doctor's misconduct his or her fitness to practise has been impaired.'
The Panel has therefore had due regard to its duty to act in the public interest, protecting patients, maintaining public confidence in the profession and in declaring and upholding proper standards of conduct and behaviour.
The Panel also noted the observations in the judgment of Auld LJ in the Court of Appeal in GMC v Meadow  EWCA Civ 1390 (Admin), to the effect that the standard of seriousness of a doctor's conduct is the same as it was when the test was "serious professional misconduct" and that, in order to form a view as to the fitness of a person to practise today, it must take account of the way in which the person has acted or failed to act in the past; and that the misconduct 'must be linked to the practice of medicine or conduct that otherwise brings the profession into disrepute, and it must be serious'. As to seriousness, Collins J in Nandi v General Medical Council  EWHC (Admin), emphasised, at paragraph 31 of his judgment, the need to give it proper weight, observing that in other contexts it has been referred to as "conduct which would be regarded as deplorable by fellow practitioners."
The Panel entertained no doubt that the past conduct which has been admitted and found proved here does amount to misconduct. You breached many of the fundamental tenets of "Good Medical Practice". Your misconduct is linked to the practice of medicine. Your misconduct brings the profession into disrepute and is serious.
For all the reasons set out above, exercising its independent judgment, the Panel has determined that you past misconduct is such that your fitness to practise is impaired by reason of that misconduct…"
"The Panel's task has been to decide whether it is necessary to make an order in respect of your registration and if so what order. The Panel is conscious that the issue of sanction is a matter for its independent judgment and that it is not bound by the decisions of the Singaporean Medical Council's Disciplinary Committee, although it has been invited to consider the issue of parity between regulatory bodies. It notes that the Singaporean Medical Council's Disciplinary Committee directed that your registration be suspended for a period of 24 months. It further notes that Mr Kellar conceded on your behalf, as a matter of fact, that you have not ceased working as a doctor for any period as a result of that suspension…
The Panel has had regard to the protection of the public interest, which includes the protection of patients, the maintenance of public confidence in the profession and the need to declare and uphold proper standards of professional conduct and behaviour. The Panel has also applied the principle of proportionality. It has taken into account the mitigation put forward on your behalf. It notes that there is no information to suggest that you have repeated the behaviour which has brought your registration into question. It has given appropriate weight to the testimonials which have been submitted. The Panel has also noted the information about your private circumstances at the times in question ...
In considering Mr Kellar's submission regarding the conditions imposed by the Interim Orders Panel, this Panel notes that an Interim order addresses the issue of a "possible impairment" of a doctor's fitness to practice which poses a real risk to members of the public or which may adversely affect the public interest or the doctor's own interests. The test applied by this Panel is very different. The Interim Orders Panel does not make a finding of fact or of impairment. This Panel has already found that your fitness to practice is impaired. Its decision on sanction must address the need to protect the public interest which includes the protection of patients, the maintenance of public confidence in the profession and the need to declare and uphold standards of professional behaviour and conduct in the light of that finding. Additionally, the Panel was told by Ms Bruce that the Interim Orders Panel is offered guidance which suggests that an interim order for suspension is rarely justifiable in the public interest alone. The Panel notes that the protection of patients is not a predominant feature in your case…
The Panel's determination on impairment made clear that it did not consider that the most serious elements of your misconduct were easily remediable. In your case there is no evidence of general clinical incompetence nor of any shortcomings in your practice which require to be remedied…
The Panel finds that the significant aspects of this case are your misconduct in participating in a sexual relationship with a patient over a prolonged period; and in disclosing to that patient confidential information relating to the medical records of a third person to which you only had access as a consequence of your position as a doctor. Even though the patient was said to have been the dominant partner in the consensual sexual relationship, and was found by the Singapore Medical Council Disciplinary Committee not to have been "vulnerable", it was your duty and responsibility to maintain the proper doctor- patient relationship. Your disclosure of confidential information relating to a third party was a flagrant breach of confidence and trust. Your other failures, namely in record keeping, are also serious but, in isolation, are perhaps less important in determining the nature of the sanction to impose. Accordingly, the question of your potential for responding positively to retraining and supervision is not adequate, workable or measurable. A period of conditional registration would not be sufficient to mark the Panel's disapproval of your misconduct or to maintain public confidence in the profession. Patients and the wider public are entitled to expect that they can trust their doctors to act appropriately at all times…
The Panel has given appropriate weight to the positive testimonial evidence of which has been presented relating to your work both in Singapore and the UK. It has noted it has not received any evidence to suggest that there has been any repeat of the misconduct which led to this hearing. It notes that the Singapore Medical Council Disciplinary Committee concluded that there was no evidence of previous wrong doing, that your practice of medicine was exemplary and that you were aware of the seriousness of your misconduct. You have expressed remorse for the damage caused to the reputation of the profession. The Panel judges that the risk of you repeating your misconduct is not significant, as referred to in the Indicative Sanctions Guidance S1-14.
In all the circumstances, the Panel is satisfied that the public interest can be served and the reputation of the profession can be maintained by suspending your registration for a period of twelve months, which is the maximum period which this Panel can impose. In deciding upon the period of suspension the Panel has had regard to the public interest and the need to send a strong message to the public and profession at large that your misconduct, which you have accepted was abhorrent and disgraceful and which the Panel finds has brought the profession into disrepute, cannot be tolerated. The Panel notes that the 'Indicative Sanctions Guidance' confirms that sanctions are not meant to be punitive but may have that effect. Suspending your registration for the maximum period conveys the Panel's disapproval of your failure to act at all times in accordance with the requirements of 'Good Medical Practice'…"
The Grounds of Challenge
The Decision on Impairment of Fitness to Practise
Ground 1: the FTPP gave inadequate reasons to explain why it did not accept the expert opinion of Dr Khean
Ground 2: the FTPP gave inadequate reasons and was in error in relation to its decision in respect of the risk of recurrence of the misconduct
Ground 3: The FTPP failed to deal adequately in its reasons concerning and was in error in assessing Dr Yeong's insight into his own behaviour.
Ground 4: the FTPP applied an incorrect test of impairment of fitness to practise
The Sanction Decision
Ground 1: the sanction was excessive or disproportionate
Ground 2: the FTPP acted improperly, to secure parity with the SMC's decision