Ang Pek San Lawrence v Singapore Medical Council

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

[6] The appellant, a registered medical practitioner, was the subject of a complaint filed by one of his patients, the complainant. This complaint related to the management of the complainant’s labour and delivery of her child by the appellant. The complaint was reviewed by the respondent’s Complaints Committee pursuant to s 40 of the MRA. The Complaints Committee comprised three members, including one Professor Quak Seng Hock who was a Professor of Paediatrics at the National University of Singapore and Senior Consultant Paediatrician at National University Hospital. Various materials were also placed before the Complaints Committee including contemporaneous evidence in the form of medical records and written submissions provided by the complainant and the appellant, as well as the expert opinion of Professor Sabaratnam Arulkumaran, a highly respected medical professional who was then the Head of Obstetrics and Gynaecology at St George’s Hospital, London. The Complaints Committee also decided to obtain an independent medical report which it assessed together with the evidence adduced by the complainant and the appellant before reaching its determination. The Complaints Committee concluded that no formal inquiry was required and dismissed the complaint. It gave its reasons for doing so in brief terms in a letter to the appellant dated 29 April 2011 in which it stated as follows:

[7] We make some brief observations on the principal findings of the Complaints Committee in coming to the decision that there was no basis for taking any further action against the appellant:

(a) the deterioration of the condition of the baby was due to an intrauterine infection and not because of intrauterine hypoxia, which was ruled out;

(b) in all the circumstances, having regard to the cardiotocograph and the indications, the appellant’s actions were appropriate;

(c) an earlier intervention by surgical delivery would not have made any difference; and

(d) the available indications did not suggest that it was necessary to have a neonatologist to be on standby during the delivery.

[8] Dissatisfied with the decision of the Complaints Committee, the complainant appealed to the Minister for Health (“the Minister”) pursuant to s 41(7) of the MRA for the appointment of a Disciplinary Committee to hear and investigate the complaint despite its having been dismissed by the Complaints Committee. The Minister acceded to her appeal and the Disciplinary Committee was constituted. In this regard, we observed in the main judgment (at [10]) that no explanation or reasons were given for acceding to the appeal and for directing the continuation of the proceedings against the complaint despite the complaint having been considered and dismissed by the Complaints Committee.

(a) the Disciplinary Committee had failed to determine the requisite standard of conduct which the appellant should be held to or to consider whether any alleged departure from such a standard by the appellant could be said to be sufficiently serious to amount to professional misconduct; and

(b) the Disciplinary Committee had taken into account facts that it should not have considered in convicting the appellant.

[11] In relation to the first of the grounds mentioned above, we observed that it was unclear which of the two types of professional misconduct described in Low Cze Hong v Singapore Medical Council [2008] 3 SLR(R) 612 (“Low Cze Hong”) (at [37]) the Disciplinary Committee had applied its mind to. We observed in the main judgment (at [39]) that the respondent had, in fact, failed to specify the type of professional misconduct alleged in any of the four charges brought against the appellant. This lack of specificity in the charges meant that there had been a lack of clarity as to the case that the respondent was mounting or that the appellant had to meet. Given the way the case had been presented, it was perhaps unsurprising that the Disciplinary Committee failed to determine and then consider the requisite standard of conduct that it should have taken reference from in evaluating the appellant’s conduct (see [59]–[61] of the main judgment).

[12] In light of this, we emphasised in the main judgment (at [40]) the need for the respondent to assist future Disciplinary Committees by drafting the charges it brings with sufficient precision and particularity including by making clear which type of professional misconduct described in Low Cze Hong it is alleging.

[13] In relation to the second of the grounds mentioned above, we noted that a number of the facts relied on by the Disciplinary Committee fell outside the ambit of the facts that had been particularised in the fourth charge. This arose because the respondent had not sufficiently particularised the fourth charge to encompass the facts that it wished to rely on (see [85]–[88] of the main judgment), though it nevertheless did rely on such facts in its submissions to the Disciplinary Committee. An example will elucidate the point. In convicting the appellant of the fourth charge, the Disciplinary Committee had relied on the fact that the appellant was unaware of the identity of the person who would be assisting him in the delivery (see [101] of the main judgment). This had not been included in the particulars of the fourth charge but had nonetheless been relied on by the respondent in the proceedings below. We make these points because tribunals can be led into error by the unsatisfactory way in which a case is presented and at least in some important respects, it was evident that this had in fact transpired in this case.

(a) Whether the High Court hearing an appeal against the decision of the Disciplinary Committee can make an adverse costs order against the respondent in respect of:

(i) the costs of the inquiry before the Disciplinary Committee; and

(ii) the costs of the appeal (“the First Issue”);

(b) If the answer to either or both these situations is in the affirmative, whether there are any principles governing the exercise of such power, and if so what those principles might be (“the Second Issue”); and

(c) Whether, in applying the principles identified in (b) above, we should order costs against the respondent in relation to the Inquiry and/or the appeal (“the Third Issue”).

[16] These issues require us to deal with specific provisions in the MRA. We note that the version of the MRA referred to in this case is that in force as at 23 September 2009, that being the date of the events giving rise to the complaint against the appellant. A newer version of the MRA has since come into force. However, nothing ultimately turns on this because there have been no significant changes made to the provisions of the MRA that are relevant to this case. In the circumstances, we consider that the general principles enunciated below would apply equally to the current version of the MRA that has been in force since 31 December 2014.

[20] The respondent accordingly contends that:

(a) a Disciplinary Committee can only order costs against a medical practitioner in the event of a conviction as provided for in s 45(2) of the MRA; and

(b) a Disciplinary Committee cannot order costs against any party in the event of an acquittal as the MRA is silent on this.

If both these propositions are to be accepted, then the necessary conclusion to be reached would be that a Disciplinary Committee can never order costs against the respondent. In our judgment, the first proposition is correct; however, the second proposition is incorrect.

[26] Further, it is evident from the passage in Kaliamurthy that we have cited above that even a defendant medical practitioner, in mounting his defence and thus acting to ensure that there is no wrongful conviction, is also exercising a public function, albeit to a more limited degree.

The Minister may then, pursuant to s 41(8)(b) of the MRA, direct that disciplinary proceedings be instituted against a medical practitioner.

[33] Section 20(c) of the SCJA states:

Thus, when the High Court hears appeals from a Disciplinary Committee pursuant to s 46(7) of the MRA, it is properly seized of its appellate civil jurisdiction. When this is so, the High Court has the same powers as the Court of Appeal in the latter’s exercise of appellate jurisdiction. This is specifically provided for under s 22 of the SCJA:

We note that “court” has been defined in s 2 of the SCJA to mean “a court established by this Act”. The only “courts” established under the SCJA are the High Court and the Court of Appeal. In the context of s 38 of the SCJA, however, this would have to be read as including the State Courts and “tribunals” such as the Disciplinary Committee when read with ss 20 and 22 of the SCJA. This is only sensible because the appellate jurisdiction of the High Court arises in relation to those bodies. If the word “court” was indeed interpreted strictly in accordance with s 2 of the SCJA, then this could mean that the High Court would be unable to deal with costs in relation to proceedings before the State Courts that go on appeal before the High Court. That would plainly be an untenable result. To give effect to the High Court’s “like” power and jurisdiction vis-à-vis the Court of Appeal, we are satisfied that the word “court” in s 38 must be read more broadly when applied to the appellate jurisdiction of the High Court.

[46] It may first be noted that Stanley Burnton LJ did not regard Baxendale-Walker as the decision that laid down the applicable principle in that case. Rather, consistent with our observation above (at [44]), reference was made to “the principle in [Booth’s case]”, that is, the pronouncement by Lord Bingham that we have set out above (at [41]). The effect of Perinpanathan was to extend the application of the principle in Booth’s case to all tribunals (including disciplinary hearings) that were regarded as first instance hearings, subject to any relevant statutes and procedural rules. We also note in this connection the views expressed by Lord Neuberger of Abbotsbury MR (as he then was) in the same case (at [73]):

[49] After considering the decisions in Baxendale-Walker and Perinpanathan, the Court of Appeal in Top Ten first found (at [24]) that the principle discussed in Baxendale-Walker was applicable to entities acting as regulatory bodies:

[51] There is one other matter that was touched on in Top Ten. The Court of Appeal held (at [33]) that the Law Society had been acting as a regulatory body when it appeared before the Review Judge and accordingly found the principle laid down in Baxendale-Walker to be applicable. The Court of Appeal seemed to view Perinpanathan as limiting that principle to first instance hearings, and saw no difficulty applying the principle to the case before it because it held (at [35]) that the hearing before the Review Judge was a first instance hearing. Nonetheless, the Court of Appeal also made the following observations (at [36]):

(a) The ultimate objective of the court is to render a costs order that is just and reasonable.

(b) The “event” is one of the factors that may be taken into account but it is not the only one.

(c) Similarly, the regulatory function of the entity in question is also only one of the factors that may be taken into account although it will often be an important and sometimes even an overriding one.

(d) The degree of weight to be placed upon the fact that the respondent has a regulatory function will depend on various factors. In particular, the court will consider whether the decision to bring the charges was made honestly, reasonably, and on grounds that reasonably appeared to be sound in the exercise of its public duty.

(e) The court will also consider the financial prejudice to the doctor.

(f) Finally, the court will also consider “any other relevant fact or circumstances”.

This framework must be applied holistically and with due regard to the interests of both parties. As we have observed above (at [50]), there is no need to prove egregious conduct to the level of “bad faith” or “gross dereliction”, though as suggested in Top Ten that would undoubtedly suffice to justify the making of an adverse costs order in such circumstances.

[57] Second, in relation to point (e) above which relates to financial prejudice to the doctor, we echo the observation of Stanley Burnton LJ in Perinpanathan at [41]:

[59] However, due to the different nature of appeal proceedings compared to first instance hearings, we consider that certain other factors may also be considered. In particular, it would be legitimate to consider whether the errors made by the Disciplinary Committee were in any way contributed to by the way in which the case was prosecuted by the respondent.

[60] On the basis of these principles, we turn to consider the case at hand. We can be brief here because the relevant considerations have already been noted in the course of this judgment.

[61] First, no reason is available to explain the decision to require that the disciplinary proceedings be proceeded with against the appellant despite the findings of the Complaints Committee. We also consider that the Disciplinary Committee’s reasons for dismissing the first three charges and our reasons for reversing the conviction of the appellant on the fourth charge are largely similar to the reasons given by the Complaints Committee in dismissing the complaint (see [6]–[7] above). In the circumstances, it could not be said on the basis of the material before us that the charges were brought against the appellant on grounds that reasonably appeared to be sound.

[62] Second, as we have noted above (at [10]–[12]), at least some of the errors committed by the Disciplinary Committee in convicting the appellant (each a ground for reversing the conviction in its entirety) were largely contributed to by the respondent. The failure of the respondent to sufficiently particularise the charges and to specify which type of professional misconduct described in Low Cze Hong it was alleging undermined the ability of the Disciplinary Committee to properly evaluate the evidence and safely convict the appellant. Furthermore, the Disciplinary Committee’s consideration of extraneous facts presumably arose from the submissions of the respondent as to those facts (see [13] above).