Professional negligence and medical professional privilege: Impact of D v Kong Sim Guan

Road accidents and the emergency services Professional negligence and medical professional privilege: Impact of D v Kong Sim Guan Catherine Tay Swee Kian Introduction The recent Singapore High Court decision of D v Kong Sim Guan 1 ( the Kong case ) has established for the first time in history that absolute privilege attaches to proceedings before the Complaints Committee of the Singapore Medical Council (SMC). Until the Kong case, there is no doubt that qualified privilege applied when there is no malice and that the limits of qualified privilege is not exceeded. This is an interesting case which was a consolidated hearing of two suits, raising some important issues in professional negligence and defamation in medical professional privilege. The first suit was for alleged negligence by the defendant consultant psychiatrist in his psychiatric assessment of a child, as the defendant had written his report ( the Kong Report ) after interviewing the child and her mother, but without interviewing the plaintiff (father of child) or the teachers to whom the child had narrated the alleged sexual incidents. The plaintiff sought compensation, amongst other things, for the emotional pain, social isolation and stigmatisation following the Kong Report. In the second suit, the plaintiff alleged defamation on the part of the defendant who had responded in a written explanation to the Complaints Committee of the SMC, to a complaint lodged by the plaintiff with the Complaints Committee. In particular, the plaintiff alleged that the defendant defamed him in certain passages of the said explanation. This article deals first with the defence of absolute privilege in proceedings before the Complaint Committee of the SMC (of the second suit) before discussing the professional negligence aspect of the case in the first suit. Facts The plaintiff D (a lawyer) and his wife (a medical doctor) have only one child a daughter seven and half years of age, born in France. In 1998 they came to Singapore. In 1999 the child attended a playschool. The couple s matrimonial relationship was already under strain. On 19 May 2000, the plaintiff s wife obtained a personal protection order for herself and the child, and subsequently they both left the matrimonial home. On 13 June 2000, the plaintiff s wife learnt that the child had told her teachers about the alleged sexual abuse. Following a police report made by the plaintiff s wife alleging that the plaintiff may have sexually abused the child, the defendant (a consultant psychiatrist) examined the child. The plaintiff s wife applied to the Singapore Family Court for maintenance, custody, care and control of the child, and on the same day the plaintiff started divorce proceedings in the French courts. The plaintiff then cross-applied to the Singapore Family Court for interim 1. [2003] 3 SLR 146. 33

Professional Negligence, Vol. 20 No. 1, 2004 custody, care and control of the child. After examining the child and her mother, the defendant concluded in his Kong Report, on 25 July 2000, that the plaintiff had sexually abused the child. On 1 August 2000, the plaintiff consulted Dr Wong Sze Tai (a child psychiatrist) to rebut the Kong Report. Dr Wong interviewed the plaintiff and the teachers at the playschool and came out with a report ( the Wong Report ) which concluded that based on the evidence I arrive at the conclusion that the allegation of child sexual abuse against the plaintiff is false, ie fictitious. The judge noted that the defendant had not interviewed the plaintiff or the child s teachers; while Dr Wong had not had the benefit of interviewing the child. On 6 August 2000, the plaintiff s wife and the child left Singapore for good. The plaintiff alleged that the defendant was negligent in his psychiatric examination of the child and claimed damages. Further, the plaintiff lodged a complaint against the defendant with the Complaints Committee of the SMC. The plaintiff alleged that the defendant had defamed him in certain passages of his written explanation to the Complaints Committee in response to the said complaint. The alleged defamatory words Three passages from the defendant s written explanation formed the basis of the plaintiff s defamation suit. Passage a: The unusual pictures drawn during the access on August 5: Could it be possible that the girl was coached to draw such a drawing by [plaintiff], who according to [plaintiff s wife], is an accomplished artist? Taking all these facts into consideration, it would appear that the phallic drawing incident during the access of August 5 was stage-managed by [plaintiff] and his friend. The judge noted that such words in their natural and ordinary meaning meant that the plaintiff was capable of plotting to fabricate evidence to incriminate the plaintiff s wife and that he actually did it. Passage b: The so-call fib about play in the cupboard: After an escorted tour of [plaintiff s] residence with [plaintiff] as the guide, of course, Dr Wong concluded that the sexual play disclosed to me by the child are all lies. The cupboards are too small, I should have see (sic) them for myself. I have been fooled. Have I? Please examine page 6 of 7 of [plaintiff s wife s] e-mail (Email B) (line starting with Regarding the cupboard ) in which she indicated that there was indeed a huge cupboard in the home in which such sex play could have taken place. This is an example of what a psychiatrist should not do and that is to play detective. Dr Wong was probably shown what he was supposed to see only. If he had left it to the police, they 34

Impact of D v Kong Sim Guan would have done a better job, even if [plaintiff] were to tear away the cupboard and renovated his residence entirely. The judge concluded that in their natural and ordinary meaning, the said words meant and were understood to mean that the plaintiff escorted Dr Wong on a tour of his home so that Dr Wong was only shown what he was to see and not the allegedly incriminating evidence and that the plaintiff had destroyed evidence that could have incriminated him. Passage c Omission to interview the perpetuator: I have already covered this in my letter of defence and I shall not repeat myself. Arthur Green (page 32) whom Dr Wong quoted to support his contention of false allegation here wrote in the book he co-edited with Diane Schetky (quoted by Dr Wong on page 37) entitled Child Sexual Abuse: A Handbook for Health Care and Legal Professionals, that fathers who engaged in incestuous acts with their daughters have the following characteristics: (1) domineering and tyrannical; (2) alcohol abuse; (3) unstable employment; (4) social and physical isolation; (5) sexual deviation; and (6) background of emotional deprivation and physical and sexual victimisation. Under sexual deviation most incestuous fathers went through a period of hypersexuality before initiating incest. This is highly relevant as Dr Wong claimed that this is not a case of sexual abuse but that of a highly eroticised child. There is a fine thin line between sexual abuse and hyper-eroticism but first I shall consider Dr Wong s hypothesis of the child being hyper-erotic. At least, in his opinion, Dr Wong is willing to allow that the child has been eroticised and since the child is close to father, it has to be the father who initiated it. The judge was of the opinion that the said words meant, in their natural and ordinary meaning, that the plaintiff had social deprivation(s) and mental and the behavioural disorders of fathers who engaged in incestuous acts with their daughters, including a pathological obsession with sex and that he was a father who was likely to sexually abuse his daughter and that it was possible that the plaintiff had an incestuous relationship with his child and that he initiated incest with her. Qualified privilege The defendant raised both qualified and absolute privilege in his defence to a defamation suit. The judge noted that in his defence, the defendant drew inferences and suggested explanations in connection with the events that had happened, in contrast to the inferences and suggestions made by Dr Wong. With regard to passage (a), the judge went on to explain that it was a fair to say that: if there was any coaching at all, the coach may have been the plaintiff. The judge himself thought likewise that the whole episode (on the phallic drawings) could have been stage-managed by the plaintiff. Similarly, in passage (b), the defendant was making a point about the possibility that the plaintiff may not have shown Dr Wong all the cupboards in the apartment. The judge said that these were possibilities that the Complaints Committee, in its deliberations on the merits of the plaintiff s complaint, was entitled to take into account. As for passage (c) the judge could not see anything objectionable in the defendant 35

Professional Negligence, Vol. 20 No. 1, 2004 drawing the attention of the Complaints Committee to the views expressed by text book writers on an issue relevant to the matters before the Committee. Suggestions that a person may be guilty of sexual abuse would, if untrue, be defamatory unless such suggestions were made in a situation protected by privilege. The plaintiff contended that the defendant had exceeded the said privilege and/or acted with malice. The judge was satisfied that the defendant in making the allegedly defamatory statements in the three passages was motivated solely by the need to defend his professional reputation. The defence of qualified privilege applied here and the judge noted that it was appropriate for the defendant to have included these passages complained of in his explanation to the Complaints Committee. The judge held that the defendant was not motivated by malice and had not exceeded the limits of qualified privilege. Review of the cases An absolute privilege? The defendant had argued that the proceedings of the Complaints Committee were also protected by absolute privilege, just like the proceedings before the Disciplinary Committee of the SMC. The plaintiff disputed that proceedings before the Complaints Committee were protected by absolute privilege. However he did not dispute that proceedings before the Disciplinary Committee were so protected. Absolute privilege attaches to statements made before courts of law. It also applies to evidence before tribunals which act in a similar manner to the courts of law. 2 Whether the defence of absolute privilege attaches will depend on the circumstances of each case. Lord Diplock said in Trapp v Mackie: No single touchstone emerges from the cases; but this is not surprising for the rule of law is one which involves the balancing of conflicting public policies, one general: that the law should provide a remedy to the citizen whose good name and reputation is traduced by malicious falsehoods uttered by another; the other particular: that witnesses before tribunals recognised by law should, in the words of the answer of the judges in Dawkins v Lord Rokeby, LR HL 744, 753 give their testimony free from any fear of being harassed by an action of an allegation, whether true or false, that they acted from malice. 3 The court held that the raison d etre of absolute privilege is the public interest in ensuring that persons involved in litigation are as free as possible to speak without fear of reprisals. Lord Diplock in Trapp v Mackie outlined some factors which may provide guidance in identifying tribunals that act in a manner similar to a court of law. These were: (1) under what authority the tribunal acts; (2) the nature of the question into which it is its duty to inquire; (3) the procedure adopted by it in carrying out the inquiry; and (4) the legal consequences of the conclusion reached by the tribunal as a result of the inquiry. Counsel for the defendant submitted that these four steps are a guide to ascertaining whether absolute privilege exists, which the judge held was satisfied in this case. First, to attract the 2. O Connor v Waldron [1935] AC 76. 3. [1979] 1 WLR 377 at 379 (original emphasis). 36

Impact of D v Kong Sim Guan defence of absolute privilege the tribunal must be recognised by law. The disciplinary powers of the SMC (whether exercised through the Complaints Committee) are recognised by law in that its powers are conferred on the SMC by the Medical Registration Act. The questions to be determined by the Complaints Committee were similar to judicial proceedings in a court of law, falling within the second step in Trapp v Mackie. Thirdly, although the procedures of the two disciplinary arms (the Complaints Committee and the Disciplinary Committee) of the SMC are different, the judge adopted the statement of law that there was no single element whose presence or absence would conclusively determine the availability of absolute privilege as a defence. 4 Did the fact that witnesses do not testify before the Complaints Committee make the proceedings before the Committee so different from a court of law that the defence of absolute privilege was not available for an explanation given to this committee? After taking an overview of all the characteristics and its proceedings, the court held that the exercise by the SMC of its disciplinary functions was sufficiently similar to proceedings in a court of law for absolute privilege to attach to the explanation given by the defendant to the Complaints Committee. Fourthly, any that decision the Complaints Committee made would have legal consequences for the defendant akin to decisions in a court of law. As Lord Fraser said in Trapp v Mackie: It is not essential that the tribunal itself should have power to determine the issue before it. 5 The judge held that the investigation of a complaint by the Complaints Committee did fall within the scope of the kind of investigations envisaged in Taylor v Director of the Serious Fraud Office. 6 The Taylor case extended the absolute immunity covering investigators in their public duty of investigating crime to those who give information to the investigators. Lord Hutton added in Taylor that: If this protection were not given police officers and investigators who had conducted investigations into suspected crimes and persons who gave information to them might be unrighteously harassed with suits. 7 The judge accepted the logic of Taylor, where the defence of absolute privilege was given a significantly wider interpretation. A balancing test? In Watson v M Ewan 8 the House of Lords considered that as a step towards the administration of justice, public policy renders the protection of witnesses necessary for the administration of justice and hence the protection of absolute privilege to such statements. Lord Fraser in the Trapp case expressed a similar view: Cases such as Dawkins, LR 7 HL 744 and Barratt [1905] 1 KB 504, show that absolute privilege may apply if the inquiry is a step leading directly towards determination of an issue by the authority who appointed it. In each case the object of the tribunal, its constitution and its manner of proceeding must all be considered before the question can be answered. 9 4. Trapp v Mackie [1979] 1 WLR 377 at 388 per Lord Fraser. 5. Trapp v Mackie [1979] 1 WLR 377 at 388. 6. [1999] 2 AC 177. 7. [1999] 2 AC 177 at 221. 8. [1905] AC 480. See per the Earl of Halsbury LC at 487. 9. Trapp v Mackie [1979] 1 WLR 377 at 388. 37

Professional Negligence, Vol. 20 No. 1, 2004 From these cases, it was established that statements that were a necessary prelude to litigation were covered by absolute privilege. The referral by the Complaints Committee of the SMC of certain complaints to the Disciplinary Committee is an essential step in the inquiry and disposal of the compliant. Following the Watson case, the written explanation by the defendant to the Complaints Committee was a necessary step in the adjudication of the complaint by the SMC under its disciplinary machinery set up by the Medical Registration Act. Logically it follows that the protection of absolute privilege available before the Disciplinary Committee should extend to cover the written explanation rendered to the SMC Complaints Committee. The medical practitioner who gives his explanation to the Complaints Committee to defend himself knows that the complaint may well be referred to a Disciplinary Committee where he can be cross-examined later on that explanation. A recognised category for duty of care in tort of negligence? It is well established that for the law to impose a duty of care of a given scope, certain necessary ingredients are required (other than foreseeability of damages ), namely a relationship of proximity or neighbourhood between the plaintiff and the defendant and the attachment of liability for harm should be fair, just and reasonable. 10 The question is whether there is a recognised category of cases where a medical practitioner owed a duty of care to third persons who may be adversely affected by his medical report? The judge noted that having the plaintiff in mind while writing the medical report is not sufficient for a duty of care to exist for there must arise a relationship of proximity that makes it just and reasonable for that duty to exist. This relationship of proximity was lacking here. The court was prepared to distinguish both the cases of Smith 11 and Caparo, (where the parties themselves relied on the reports and instituted the claims) on the basis that the plaintiff did not rely on the Kong Report. In fact, Dr Kong could not have foreseen that the plaintiff would rely on his Kong Report as his conclusions were adverse to the plaintiff. Another issue was that the plaintiff was not the defendant s patient but was in fact the suspect. Under these circumstances, the judge did not think it was reasonable to impose on the defendant a duty of care towards the plaintiff. The judge added: If Dr Kong was negligent in the way he assessed the child towards whom, on the authority of Phelps, 12 he owed a duty of care he would be liable in negligence to the child: but he owed no such duty to the plaintiff and would therefore not be liable in negligence to the plaintiff. 13 This is in line with the reasoning of the English Court of Appeal and the House of Lords in the case of M v Newham London Borough Council 14 where it was held that a psychiatrist owed 10. In Caparo Industries plc v Dickman [1990] 2 AC 605, 633 Lord Oliver said the postulate of a simple duty to avoid any harm that is, with hindsight, reasonably capable of being foreseen becomes untenable without the imposition of some intelligible limits to keep the law of negligence within the bounds of common sense and practicality. Those limits have been found by the requirement of a relationship of proximity and by the further imposition of a further requirement that the attachment of liability for harm which has occurred be just and reasonable. 11. Smith v Eric S Bush [1990] 1 AC 831. 12. [2001] 2 AC 619 at 653 per Lord Slynn. 13. D v Kong Sim Guan [2003] SLR 146 at 163. 14. [1994] 2 WLR 554. 38

Impact of D v Kong Sim Guan no duty of care to the mother of a child who was alleged to have been sexually abused by the mother s cohabitee. Sir Thomas Bingham MR said: The psychiatrist would in my view have recognised the mother as someone foreseeably likely to be injured if, as a result of her advice, the child were to be taken away from the mother. But the mother was not in any meaningful sense the psychiatrist s patient. The psychiatrist s duty was to act in the interests of the child, and that might very well mean acting in a way that would be adverse to the personal interests of the mother; she was concerned with those interests only to the extent that they could have an impact on the interests of the child. In this situation of potential conflict, I do not think the psychiatrist can arguably be said to have owed a duty of care to the mother 15 Causal connection in negligence The plaintiff s claim against Dr Kong in negligence was also dismissed as the plaintiff had failed to prove a causal link between the acts/omissions of Dr Kong and the injuries for which he was seeking compensation. When granting custody the French court explicitly ignored both the Kong Report and the Wong Report, as the reports were conflicting. It seems that custody was granted on the ground of the plaintiff s sexual choice (bi-sexuality), which (it was said) did not correspond with the interests of the child. Moreover, the judge was of the view that the claim for compensation for emotional pain, social isolation and stigmatisation arising form the consequences of the Kong Report were more appropriately the subject matter of a defamation suit. Professional negligence Much time was devoted at the trial to the issue of professional negligence. When is a professional negligent in the course of his work? The answer was the Bolam test 16 as supplemented by Bolitho. 17 This was confirmed most recently by the landmark decision in the medical field of the Singapore Court of Appeal in the case of Khoo James v Gunapathy d/o Miniandy. 18 The main issue on professional negligence was the duty of care. The judge applied the Bolam test, observing that whether a member of a profession was negligent in the course of his work had to be judged against the scope and nature of the work undertaken by that profession. Dr Kong s work was to assess the credibility of the child vis-à-vis the statements she made to her teachers about the sexual incidents, but the court noted that Dr Kong refrained from interviewing the plaintiff at the request of the authorities, ie the police and Ministry of Community Development and Sports. Being a psychiatrist in private practice, Dr Kong had no investigative powers and he was employed by the plaintiff s wife, not by any investigative authority. The court concluded that, with no investigative powers, Dr 15. M v Newham London Borough Council [1994] 2 WLR 554 at 574. See also JD v East Berkshire Community Health NHS Trust [2003] EWCA Civ 1151; [2003] 4 All ER 796 where the Court of Appeal held that where consideration is being given to whether a suspicion of child abuse justifies taking proceedings to remove a child from the parents, no common law duty of care is owed to the parents, because the child s interests are in potential conflict with the interests of the parents. 16. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. 17. Bolitho v City and Hackney Health Authority [1998] AC 232. 18. [2002] 2 SLR 414. 39

Professional Negligence, Vol. 20 No. 1, 2004 Kong was not negligent in refusing to revise the Kong Report when he was presented with evidence that the child was coached by the mother. It is interesting to note that both psychiatrists, Dr Kong and Dr Wong, gave reports without interviewing all the relevant witnesses. There were good reasons. As mentioned, Dr Kong refrained from doing so at the request of the authorities, while Dr Wong could not interview the child because the child was no longer in Singapore. The judge clarified that, generally, a psychiatrist cannot be guilty of any impropriety if the psychiatrist is unable, for good reason, to interview a relevant person. The judge observed that in an adversarial system, if the plaintiff had felt a psychiatric evaluation would assist in countering the allegations in the Kong Report, it was for him to arrange it, which he did so by consulting Dr Wong. After hearing the evidence, including that of Dr Glaser (the expert witness), the judge held that Dr Kong was not negligent in his assessment of the child. To succeed in discrediting Dr Kong s methodology or conclusions, [the plaintiff] would have to show that no professional man of ordinary skill would have adopted that methodology or arrived at those conclusions if he was acting with ordinary care (Hunter v Hanley 1955 SC 200 at 206) I accept the evidence of Dr Glaser, that there was nothing seriously remiss about the was Dr Kong assessed the child. Dr Glaser was of the view that it is likely that Dr Kong had reached the correct conclusion, namely that the child is likely to have been sexually abused by her father. 19 Conclusion The result of D v Kong Sim Guan is that the Singapore courts now recognise that the defence of absolute privilege applies to explanations given to the SMC Complaints Committee, as the exercise by the SMC of its disciplinary function is sufficiently similar to proceedings in a court of law. In the law of professional medical negligence, the adherence to the Bolam approach in the medical field seems to favour the medical profession, giving rise to the public perception that Bolam makes it more difficult for a patient to succeed than in other types of personal injury. 20 However, this has always been balanced against the wider social arguments of considerations of public policy. This concern extends also to the question of when the duty of care is owed by a professional to third parties. Perhaps it is time for much clearer guidance from the common law. Catherine Tay Swee Kian * 19. D v Kong Sim Guan [2002] 146 at 168. 20. See Edward Wong Finance Co Ltd v Johnson Stokes & Master [1984] AC 296. Also see the Pearson Commission (the Royal Commission on Civil Liability and Compensation for Personal Injury) Report: Vol 1, 1978: HMSO. * LL.B (Hons.) (Queen Mary College, London); LL.M (QMC, London); Associate Professor, National University of Singapore, Department of Business Policy; Barrister-at-Law, of Lincoln s Inn, UK; and Advocate & Solicitor, Singapore. I would like to express my thanks to Dr A Myint Soe for his helpful comments on this article. 40

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