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Grounds publishedDecided 28 Jun 2013
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High Court

Lim Mey Lee Susan v Singapore Medical Council

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[2013] SGHC 122Case no. Originating Summons No 780 of 2012

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  1. Andrew Phang Boon Leong JA (delivering the judgment of the court):

  2. Introduction

  3. [1] This is an appeal by the appellant (“the Appellant”), a registered medical practitioner, against her conviction by a Disciplinary Committee (“the DC”) appointed by the respondent (“the Respondent”), the Singapore Medical Council, of 94 charges of professional misconduct under s 45(1)(d) of the Medical Registration Act (Cap 174, 2004 Rev Ed) (“the Medical Registration Act”). As the Appellant’s alleged professional misconduct occurred before the amendments made by the Medical Registration (Amendment) Act 2010 (Act 1 of 2010) (“the 2010 Amendment Act”) came into effect, it is the Medical Registration Act as it stood prior to the 2010 Amendment Act (“the MRA”) which applies to the disciplinary proceedings against the Appellant as well as this appeal, and not the Medical Registration Act as it currently stands (“the current Medical Registration Act”). This appeal raises several related issues of fundamental importance. In particular, is there an ethical obligation on the part of all doctors who practise medicine in Singapore to charge a fair and reasonable fee for their services? If so, is such an obligation an inherent one, or must it first be embodied within published legislation or rules before it can be enforced? If such an ethical obligation exists, is it inoperative in the face of a binding contract between a doctor and his or her patient (assuming that the contract in question is not otherwise rendered invalid under the general principles of contract law)? These questions raise, in turn, an even more fundamental question – what does it mean to be a professional? More specifically, is a professional bound by ethical obligations which trump his or her commercial obligations and interests? If so, should a distinction be drawn between lawyers on the one hand and doctors on the other, given that for lawyers, the answer to the last-mentioned question is in the affirmative, whilst counsel for the Appellant has argued that the contrary should obtain for his client instead?

  4. The factual background

  5. The Appellant’s treatment of the Patient beginning in 2001

  6. [3] The material facts, as summarised by the DC in its decision, are as follows. The Appellant’s primary area of practice is general surgery, and she was at the material time registered as practising at Susan Lim Surgery Pte Ltd at Gleneagles Medical Centre. The Appellant is also the chairman and chief executive officer of a number of other clinics, including Group Surgical Practice Pte Ltd, Centre for Weight Management Pte Ltd, Centre for Cancer Surgery Pte Ltd and Centre for Breast Screening and Surgery Pte Ltd (which, together with Susan Lim Surgery Pte Ltd, shall hereinafter be collectively referred to as “the Appellant’s clinics”).

  7. [4] In or around 2001, the Appellant began treating the Patient for cancer of the left breast. The Appellant was the Patient’s principal physician, and was responsible for the Patient’s overall care as well as for the coordination of her treatment. For services rendered to the Patient in 2001, Susan Lim Surgery Pte Ltd issued invoices amounting to $671,827.80. The Appellant did not attend to the Patient in 2002 and 2003, and resumed her treatment of the Patient in 2004, providing medical services to the Patient during the following periods:

  8. (a) from around May 2004 to August 2004, for which period the Appellant’s clinics issued invoices amounting to $2,708,895;

  9. (b) from around January 2005 to December 2005, for which period the Appellant’s clinics issued invoices amounting to $3,790,237.50;

  10. (c) from around January 2006 to November 2006, for which period the Appellant’s clinics issued invoices amounting to $7,501,357.50; and

  11. (d) from around January 2007 to June 2007, for which period the Appellant’s clinics issued invoices amounting to $26,042,112.50 inclusive of Goods and Services Tax (“GST”) (the sum is approximately $24m before GST).

  12. The arrangement between the parties was that the Appellant’s clinics would address their invoices to the High Commission of Brunei in Singapore, and the invoices would ultimately be approved and paid by the Bruneian government.

  13. [5] On 19 August 2007, the Patient passed away. For services rendered in 2007, to which the charges brought against the Appellant largely relate, the total quantum of the invoices issued by the Appellant’s clinics amounted (as noted above) to approximately $24m. The services which the Appellant provided in 2007 concerned, in the main, palliative care and the coordination of the treatment of a patient in the advanced stages of breast cancer. As the DC observed in its decision, in 2007, the Appellant did not perform on the Patient any surgical procedures which would have required her to utilise her considerable surgical skills and expertise (see the DC decision at [2.2.4] and [5.1.4]). There is some dispute as to the number of days of treatment provided in 2007. The Respondent asserts, and the DC in its decision accepted, that the Appellant’s invoices for 2007 covered 110 treatment days from 15 January 2007 to 14 June 2007. However, the Appellant contends that invoices were issued in relation to 153 treatment days from 15 January 2007 to 16 July 2007, and included services which she and her staff provided to the Patient in Brunei in June 2007 and July 2007. We shall proceed on the basis that the Appellant’s invoices covered 110 treatment days up to 14 June 2007, as the services provided by the Appellant and her medical team to the Patient after the latter’s repatriation to Brunei in June 2007 are not the subject of any invoices. This conclusion is supported by the Appellant’s own letter dated 12 November 2007 to the Permanent Secretary of the Ministry of Health of Brunei (“MOHB”), where she referred to “billings during the period of 110 days between 15 January to 14 June 2007”.

  14. MOHB contacts the Ministry of Health of Singapore

  15. [6] In May 2007, the High Commission of Brunei in Singapore alerted MOHB to the magnitude of the Appellant’s bills. On 18 July 2007, MOHB’s Director-General of Medical Services, Dr Affendy bin Pehin Orang Kaya Saiful Mulok Dato Seri Paduka Haji Awang Abidin, met with the Director of Medical Services of the Ministry of Health of Singapore (“MOHS”), Prof K Satku (“Prof Satku”), to review the bills issued by the Appellant in 2007. Prof Satku invited MOHB to write in officially to MOHS so that MOHS could investigate the matter.

  16. [7] On 20 July 2007, officials of MOHB met with Dr Lim Cheok Peng (“Dr C P Lim”), the chief executive officer of the Parkway Group (which operates Gleneagles Hospital, where one of the Appellant’s clinics is located), and informed him that MOHB found the Appellant’s bills excessive. Dr C P Lim conveyed the Bruneian government’s dissatisfaction with the bills to the Appellant on the same day, and subsequently informed MOHB that he had spoken with the Appellant.

  17. Invoices annulled, withdrawn or discounted

  18. [8] In a letter dated 1 August 2007, the Appellant informed the Permanent Secretary of MOHB that 43 invoices which she had issued in 2007 “should be disregarded” and treated as “null and void”. The Appellant offered her apologies, explaining that her office was “not used to handling such bills over such a long period of time”. The Appellant further offered to reduce the amount set out in the remaining invoices by 25% and to withdraw another two invoices “as a gesture of goodwill”. This had the combined effect of reducing the Appellant’s fees for services rendered to the Patient in 2007 to about $12.6m. The invoices which the Appellant chose to withdraw or annul mainly related to services provided by other doctors, radiotherapy services and the coordination of medical conferences with other specialists to discuss the Patient’s treatment.

  19. [9] In a letter dated 18 August 2007, the Appellant apologised to the Minister of Health of Brunei for what she described as “inadvertent mistakes” made by her office in respect of the invoices due to the complexity of the billings. On 27 August 2007, after the death of the Patient on 19 August 2007, MOHB responded to the Appellant restating its position that “[t]he Ministry of Health of Brunei finds the charges to be extremely high”. Also by a letter dated 27 August 2007, MOHB wrote to MOHS expressing its view that the Appellant’s charges for the services rendered in 2007 were “unacceptable and extremely high”. In its letter to MOHS, MOHB referred to the Appellant’s letter of 1 August 2007, asserting that notwithstanding the withdrawal of the 45 invoices and the 25% discount, MOHB still found the Appellant’s charges “unacceptable”. The letter then proceeded to seek the intervention of MOHS in the matter.

  20. [10] By way of a letter dated 1 November 2007, the Appellant wrote to the Permanent Secretary of MOHB offering to travel to Brunei at her own expense for a meeting to “resolve this matter amicably to the approval and satisfaction of Ministry of Health, Brunei Darussalam”. The Appellant met with the Permanent Secretary of MOHB on 8 November 2007. The Appellant again excused her charges as mistakes on the part of her accountant, and offered this time to waive her and her medical team’s professional fees from 15 January 2007 to 14 June 2007 as a gesture of goodwill. She requested that MOHB reimburse her for the remaining sum of $3,248,791.29, which represented bills from third-party doctors and disbursements relating mainly to services provided during the period from 14 June 2007 to 16 July 2007 when the Patient was treated in Brunei. MOHB took no position on the offer and informed the Appellant that it would look into the matter further. Subsequently, the Appellant sent a letter dated 12 November 2007 to the Permanent Secretary of MOHB setting out the offer that she had made at the meeting.

  21. MOHS’s letter of complaint to the Respondent

  22. [11] Upon receipt of MOHB’s 27 August 2007 letter seeking the intervention of MOHS, MOHS conducted its own investigations into the matter. By way of a letter of complaint dated 3 December 2007 (“the Complaint”) to the chairman of the Respondent’s Complaints Panel, MOHS expressed concerns that the Appellant “may have taken unfair advantage of her position as the principal physician to the Patient, and of the trust and confidence which had been reposed in her”. Based on its preliminary review of the documents obtained, MOHS identified the following issues of concern:

  23. (a) whether the invoices issued by the Appellant for the period from January 2007 to June 2007 demonstrated a pattern of overcharging and/or improper billing, and whether the Appellant had overcharged the Patient prior to January 2007;

  24. (b) whether the Appellant had invoiced inappropriately for professional services which she did not render to the Patient, or which she carried out only with the assistance of other doctors; and

  25. (c) whether there were conflicts of interest in view of the fact that the Appellant was the manager of all the clinics which had issued invoices for services rendered to the Patient.

  26. In relation to the issues raised by MOHS, the DC observed that issues (b) and (c) above formed no part of the charges against the Appellant. Consequently, the DC proceeded on the assumption that all the services set out in the invoices were actually and reasonably rendered to the Patient. The Complaint concluded by stating that MOHS was referring the matter to the Respondent for a thorough investigation as to whether the Appellant’s conduct in relation to the Patient amounted to professional misconduct.

  27. The Complaints Committee and the first Disciplinary Committee

  28. [12] Pursuant to s 39(7) of the MRA, the chairman of the Respondent’s Complaints Panel laid the Complaint before a Complaints Committee (“the CC”). Upon the CC’s invitation, the Appellant provided her written explanation on the Complaint by way of two letters dated 4 February 2008 and 18 July 2008 respectively. On 17 November 2008, the CC ordered that a formal inquiry be held by a Disciplinary Committee pursuant to s 41 of the MRA. Pursuant to ss 41 and 42 of the MRA, the Respondent appointed a Disciplinary Committee (“the First DC”) to inquire into the Complaint. The First DC comprised Assoc Prof Chin Jing Jih, Assoc Prof Ong Biauw Chi, Dr Wong Yue Sie and Ms Serene Wee. The legal assessor to the First DC was Mr Giam Chin Toon SC.

  29. The Appellant meets with the Minister of Health of Brunei

  30. [13] In January 2009, the Appellant met with the Minister of Health of Brunei. The DC’s findings in relation to what occurred in that meeting were based on a letter from MOHB to the High Commissioner of Singapore in Brunei dated 26 January 2010, which stated:

  31. The Appellant disputes this version of events and denies that she had ever indicated that she would drop any claim for payment in return for a letter of good standing from MOHB. MOHB declined to drop the matter.

  32. The proceedings before the First DC

  33. [14] On 20 July 2009, the Respondent issued to the Appellant a notice of inquiry containing 94 charges of professional misconduct under s 45(1)(d) of the MRA. The hearing before the First DC took place between 28 January 2010 and 8 April 2010. Thirteen witnesses for the Prosecution gave evidence before the First DC. At the close of the Prosecution’s case, the Appellant made a submission of no case to answer. The First DC fixed a three-day hearing commencing on 29 July 2010 to receive oral submissions. On 29 July 2010, written submissions on the Appellant’s “no case to answer” submission having been duly filed, the parties attended before the First DC to present their oral arguments on that submission. The chairman of the First DC informed the parties at the outset of the hearing (see the DC decision at [2.17.6]):

  34. Counsel for the Appellant asked the First DC to proceed with its initial indication to hear oral arguments on the Appellant’s “no case to answer” submission, which the First DC did. However, having presented his oral arguments, counsel for the Appellant applied for the First DC to recuse itself on the grounds that contrary to its earlier indication that it would hear oral arguments on the Appellant’s “no case to answer” submission, the aforementioned statement by its chairman showed that it had prejudged that submission even before hearing the parties’ oral arguments. As the Prosecution did not object to the application, the First DC recused itself.

  35. The appointment of a fresh Disciplinary Committee and the judicial review proceedings

  36. [15] Upon the First DC’s recusal, a fresh Disciplinary Committee – viz, the DC as defined above at [1] – was appointed on 14 September 2010, comprising Prof Tan Ser Kiat as the chairman, Prof C Rajasoorya, Dr Abraham Kochitty, Assoc Prof Koh Ming Choo Pearlie as the layperson and Mr Vinodh Coomaraswamy SC (“Mr Coomaraswamy”) as the legal assessor.

  37. [16] On 17 December 2010, the Appellant filed Originating Summons No 1252 of 2010 (“OS 1252”) in the High Court seeking, inter alia, leave to apply for:

  38. (a) a quashing order against the Respondent’s decision to appoint a fresh Disciplinary Committee to hear the 94 charges against the Appellant on the grounds that such decision was: (i) illegal under the MRA; and (ii) tainted by actual or apparent bias on the part of the Respondent; and

  39. (b) a prohibiting order prohibiting the Respondent from appointing a fresh Disciplinary Committee to continue the disciplinary proceedings against the Appellant in respect of the 94 charges on the basis that such appointment would be unreasonable according to the principles laid down in the leading English Court of Appeal decision of Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223.

  40. On 26 May 2011, the High Court dismissed the Appellant’s application in OS 1252 (see Lim Mey Lee Susan v Singapore Medical Council [2011] 4 SLR 156). Dissatisfied with the High Court’s decision, the Appellant appealed to the Court of Appeal. On 30 November 2011, the Court of Appeal dismissed the appeal (see Lim Mey Lee Susan v Singapore Medical Council [2012] 1 SLR 701 (“Susan Lim (CA)”)).

  41. The proceedings before the DC

  42. [17] At a pre-inquiry conference (“PIC”) on 2 December 2011, the Appellant’s counsel informed the DC that the Appellant’s appeal to the Court of Appeal against the High Court’s decision in OS 1252 had been dismissed, and indicated that the Appellant was prepared to proceed with the disciplinary inquiry before the DC. The parties agreed that the DC should proceed with the inquiry not by hearing all the Prosecution’s witnesses afresh, but by receiving the transcripts of the evidence given by the Prosecution’s witnesses in the proceedings before the First DC and continuing the Defence’s case from that point.

  43. [18] At a PIC on 16 January 2012, the legal assessor to the DC, Mr Coomaraswamy, informed the parties that the DC had taken note of the Appellant’s decision to proceed on the basis of the evidence adduced before the First DC. He sought to ascertain whether the Appellant appreciated the full consequences of her decision, in that it: (a) deprived her current counsel of the opportunity to cross-examine the Prosecution’s witnesses according to his case theory, as opposed to the case theory which had been advanced by his predecessor before the First DC; and (b) deprived her of the significant tactical advantage of cross-examining the Prosecution’s witnesses for a second time. The Appellant’s solicitors confirmed that the Appellant was aware of the consequences of her decision and, by a letter dated 19 January 2012, confirmed that the Appellant had decided to proceed on the basis of the transcripts of the evidence adduced before the First DC. The DC then confirmed the provisional decision which it had made at the PIC on 16 January 2012 to proceed with its inquiry into the 94 charges against the Appellant based on the evidence adduced by the Prosecution before the First DC.

  44. [19] By a letter dated 28 February 2012, the Appellant’s counsel informed the DC that the Appellant was of the view that the evidence adduced by the Prosecution had not established any of the charges against her, and further indicated that she did not intend to call any evidence in her defence and wished to proceed to tender closing submissions to the DC. The parties tendered their written closing submissions and appeared before the DC to present their oral closing submissions over three hearing days from 21 to 23 May 2012.

  45. The charges against the Appellant

  46. [20] The DC, in its decision, grouped the 94 charges proferred against the Appellant into two broad categories based on the nature of the respective charges (see [1.2.1] of the DC decision). The first 83 charges (labelled “the Category I charges”) were for allegedly invoicing the Patient medical fees that were far in excess of and disproportionate to the services rendered by the Appellant and her medical team. The remaining 11 charges (“the Category II charges”) were for allegedly invoicing the Patient medical fees that were far in excess of and disproportionate to the services rendered as well as falsely representing that such fees had been invoiced by and/or would be payable to certain named doctors, when the Appellant knew or ought to have known that such representation was not true in so far as she had added a significant and undisclosed markup to the actual fees charged by those doctors.

  47. [21] In addition to the two broad categories described above, the DC also analysed the 94 charges in accordance with six further sub-categories based on the nature of the services set out in the invoices concerned (see [2.10.2] of the DC decision). We find it helpful to adopt this classification, which is set out below, in our own analysis:

  48. (a) Charges 1 to 65 (“the Category A charges”) relate to fees for services rendered by the Appellant and/or her medical team from 15 January 2007 to 13 June 2007. The Prosecution alleged that these fees were “far in excess of and disproportionate to what [the Appellant was] entitled to charge for the services [she] rendered”.

  49. (b) Charges 66 and 67 (“the Category B charges”) relate to services rendered by two of the Appellant’s employees, Dr Kum Cheng Kiong (“Dr Kum”) and Dr Lam Foong Lian (“Dr Lam”). Charge 66 relates to fees for services rendered by Dr Kum and Dr Lam from 19 April 2007 to 14 June 2007 (which fees currently remain unpaid), while Charge 67 relates to fees for services rendered by these two doctors from 10 May 2006 to 20 May 2006 (which fees have already been paid). These two charges allege that the fees which the Appellant invoiced for the services of Dr Kum and Dr Lam, on top of the fees already separately invoiced for the Appellant’s services during periods similar to the periods covered by these charges, were “inappropriate and far in excess of and disproportionate to the services … rendered”.

  50. (c) Charges 68 to 73 (“the Category C charges”) are in respect of fees which the Appellant invoiced for “radiotherapy facilities & staff” [capital letters in original omitted] for the period from 5 February 2007 to 4 May 2007. The Prosecution alleged that these fees were “far in excess of and disproportionate to what [the Appellant was] entitled to charge for the services [she] rendered”.

  51. (d) Charges 74 to 76 and 84 to 94 (“the Category D charges”) relate to treatment rendered by third-party specialists, Prof Lee Chuen Neng (“Prof Lee”), Dr Wong Sin Yew (“Dr Wong”), Dr Whang Hwee Yong (“Dr Whang”), Dr Chin Kin Wuu (“Dr Chin)”, Dr Koo Chee Choong (“Dr Koo”), Dr Khor Tong Hong (“Dr Khor”), Dr Tanny Chan (“Dr T Chan”) and Dr Chan Tiong Beng (“Dr T B Chan”), as part of the team of specialists coordinated by the Appellant. Charges 74 to 76, 84, 85, 87 and 93 relate to invoices issued before 2007 (which invoices have already been paid), while the rest of the Category D charges relate to invoices issued in 2007 (which invoices are currently still unpaid). Charges 74 to 76 allege that the fees which the Appellant invoiced for services that she rendered together with certain of the aforementioned third-party doctors were “far in excess of and disproportionate to what [the Appellant was] entitled to charge for the services [she] rendered”. Charges 84 to 94 (which also constitute the Category II charges (see above at [20])) allege that the Appellant falsely represented to the Patient or the Patient’s representatives that the fees invoiced by the Appellant in the invoices concerned “had been charged by and/or would be payable to” the relevant third-party doctors, and that “in any event such fees were far in excess of and disproportionate to what [the Appellant was] entitled to charge for the services [she] rendered”.

  52. (e) Charges 77 and 78 (“the Category E charges”) are in respect of fees invoiced by the Appellant for the cancellation of her scheduled attendance at overseas conferences in February 2007 and May 2007 in order to attend to the Patient. The charges allege that these fees were “inappropriate and far in excess of and disproportionate to the cancellation in question”.

  53. (f) Charges 79 to 83 (“the Category F charges”) are in relation to fees invoiced by the Appellant for coordinating and attending specialist clinical management conferences with an overseas oncology specialist, Prof Ian Smith (“Prof Smith”), and other specialists to review and discuss the Patient’s treatment. Charges 79 and 80 relate to invoices issued for services rendered in 2007 (which invoices currently remain unpaid), while Charges 81 to 83 relate to invoices issued before 2007 (which invoices have already been paid). The charges allege that the Appellant’s fees were “inappropriate and far in excess of and disproportionate to the services [the Appellant] rendered” in coordinating and attending the aforesaid clinical management conferences.

  54. The decision of the DC

  55. [22] In convicting the Appellant of all the 94 charges of professional misconduct, the DC made the following unanimous findings:

  56. (a) The Appellant, like all medical practitioners in Singapore, was subject to an ethical obligation to charge a fair and reasonable fee for her services, such obligation being an intrinsic aspect of the medical profession. The extent to which a medical practitioner could be said to have breached this obligation and to have misconducted himself or herself professionally must be based on the judgment of his or her peers, taking into account objective criteria drawn from all the circumstances of the case, including: (i) the nature of the services rendered and the time spent by the medical practitioner in rendering them; (ii) any specific demands made by the patient of the medical practitioner; (iii) any special relationship of trust and confidence between the medical practitioner and the patient; (iv) the medical practitioner’s special training, skills and expertise; (v) the medical practitioner’s professional standing and seniority; (vi) the fees generally invoiced for comparable services by other medical practitioners of similar skill and standing; (vii) the opportunity costs of rendering the services in question; and (viii) the circumstances of urgency under which the services were rendered.

  57. (b) The aforesaid ethical obligation bound the Appellant whether or not there was any fee agreement between her and the Patient. The objective of an ethical obligation limiting doctors’ fees was to safeguard the interests of the patient, the public and the medical profession, and that objective remained operative even if there was an agreement (binding as a matter of contract law) between a doctor and his or her patient on fees.

  58. (c) In any event, there was no fee agreement between the Appellant and the Patient on the facts.

  59. (d) In respect of all the 94 charges, the Appellant had breached her ethical obligation to charge fairly and reasonably for her services. Her breaches amounted to professional misconduct because they constituted intentional, deliberate departures from the standards observed or approved by members of the medical profession of good repute and competency. In this regard, the DC found as follows:

  60. (i) In respect of the Category A charges, the Appellant’s role was mainly to provide palliative care to the Patient and coordinate treatment by other specialists, and her fees were excessive and disproportionate to the services which she provided.

  61. (ii) In respect of the Category B charges, given that the Appellant had already issued invoices totalling $16,485,500 (before the 25% discount offered in the Appellant’s 1 August 2007 letter to MOHB (“before discount”)) for services provided by her and her medical team during periods similar to the periods covered by those charges, the additional and separate charges for the services of her employees, Dr Kum and Dr Lam, were grossly excessive.

  62. (iii) In respect of the Category C charges, the Appellant’s fees were grossly disproportionate to the services rendered, which essentially amounted to accompanying the Patient to radiotherapy sessions that were in fact administered by Dr Khor, a third-party radiation oncologist. The excessiveness of the Appellant’s fees was evident from comparisons with the fees of the attending radiation oncologist (viz, Dr Khor) as well as with the bill rendered by Mount Elizabeth Hospital’s Radiotherapy Department for the use of its facilities.

  63. (iv) In respect of the Category D charges, the Appellant’s fees for services rendered or procedures carried out by certain third-party specialists were excessive, especially in view of the Appellant’s undisclosed markup of many times the amount of the fees actually invoiced by the relevant third-party specialists.

  64. (v) In respect of the Category E charges, the amounts billed for the cancellation of the Appellant’s scheduled attendances at overseas conferences were wholly excessive and disproportionate to the cancellations in question. The DC noted that there was no evidence of the costs and expenses which the Appellant had incurred or the basis for the fees invoiced. Moreover, the DC also noted that the above-mentioned cancellation fees were imposed in addition to separate fees of $450,000 (see Charge 77) and $158,000 (see Charge 78) for services actually rendered by the Appellant and her medical team on the dates concerned.

  65. (vi) In respect of the Category F charges, the Appellant’s fees for organising and attending specialist clinical management conferences to review the Patient’s treatment were grossly excessive and inappropriate, especially in view of what was invoiced by the other doctors involved in the treatment of the Patient.

  66. (e) In respect of the Category II charges (which form part of the Category D charges), the DC found that the Appellant additionally falsely represented in the relevant invoices that the invoiced fees had been charged to the Appellant or would be payable by her to the third-party doctors identified in those invoices. A reasonable reader of the relevant invoices would have formed the impression that the fees set out in those invoices were the fees charged by the named third-party doctors without any markup. The Appellant’s breaches in respect of the Category II charges amounted to professional misconduct because they constituted intentional, deliberate departures from the standards observed or approved by members of the medical profession of good repute and competency.

  67. The issues before this court

  68. [24] Counsel for the Appellant, Mr Lee Eng Beng SC (“Mr Lee”), helpfully framed the issues before this court as follows:

  69. (a) Is there an objective ethical limit on medical fees in private health care that operates outside contractual and market forces (“Issue 1”)?

  70. (b) If the answer to Issue 1 is in the affirmative, should the Appellant be bound by the ethical obligation to limit her fees when such obligation had not been published at the material time (“Issue 2”)?

  71. (c) Assuming that there was, at the material time, an ethical obligation on the part of the Appellant to charge fair and reasonable fees for the services rendered to the Patient, was there sufficient evidence making out the 94 charges against her of professional misconduct in the form of overcharging the Patient (“Issue 3”)?

  72. (d) Was there sufficient evidence making out the Category II charges inasmuch as these charges alleged that the Appellant had falsely represented in the invoices concerned that the fees charged therein were the fees invoiced by third-party doctors, when she had in fact added a significant and undisclosed markup to the actual fees of those third-party doctors (“Issue 4”)?

  73. We pause to note – parenthetically – that whilst the issues were framed slightly differently in the Appellant’s written case, both sets of issues were in fact the same in substance. Indeed, we were of the view that the issues as framed above were clearer.

  74. [25] To the above, we would add a fifth issue: if one or more of the charges against the Appellant is made out, what ought to be the appropriate sanction (“Issue 5”)?

  75. [26] We would also observe that Mr Lee framed Issue 1 quite narrowly. In our view, that particular issue ought to be addressed – in the first instance at least – in a more general manner. We therefore reframe Issue 1 in the following terms, viz, whether there is an ethical obligation on the part of all doctors who practise medicine in Singapore – over and above contractual and market forces (for example, any existing agreement on fees between the doctor concerned and his or her patient) – to charge a fair and reasonable fee for their services (an “ethical obligation to charge a fair and reasonable fee”). If the answer to this question is in the affirmative, then the fact that the present proceedings relate to private health care would be rendered a moot point.

  76. [27] Let us now turn to consider each of these issues seriatim, beginning with Issue 1.

  77. Issue 1

  78. Overview

  79. [28] As Mr Lee correctly observed, Issue 1 is the most important and fundamental one in the context of the present proceedings. As we have already alluded to above, this issue ought – in the first instance at least – to be considered in a more general manner than that formulated by Mr Lee. To recapitulate, we are of the view that we ought to consider, first, whether there is, on the part of all doctors who practise medicine in Singapore, an ethical obligation to charge a fair and reasonable fee for their services. The DC answered this question in the affirmative (see the DC decision at [1.3.2.a]). We agree with the DC and now proceed to set out our reasons as to why such an ethical obligation ought to – and does in fact – exist. We would further note that the analysis which follows will also address the various points raised by Mr Lee in both their general as well as specific contexts.

  80. What is a “profession”?

  81. General

  82. [29] We commence our analysis at the most fundamental level simply because it is imperative; this level of analysis constitutes the foundational source from which other important conclusions flow. The key question in this regard is: what is a “profession”?

  83. [30] The Oxford English Dictionary (Clarendon Press, 2nd Ed, 1989) (“OED”) defines (at vol XII, pp 572–573) a “profession”, inter alia, as follows:

  84. [31] In the light of the literal language of the term “profession” as well as the definition just considered, it is significant, in our view, that in both the legal as well as the medical professions, each person admitted to practice makes a public declaration just prior to embarking on his or her career. Before considering the role of ethics in the medical profession, we shall first consider the position in the legal profession in order to shed light on the various essential characteristics of professions generally.

  85. [32] When admitted as an advocate and solicitor of the Supreme Court, each lawyer makes the following declaration (see r 30 of, read with the First Schedule to, the Legal Profession (Admission) Rules 2011 (GN No S 244/2011) (“the Legal Profession (Admission) Rules”)):

  86. [33] As the Court of Three Judges observed in Narindar Singh Kang v Law Society of Singapore [2007] 4 SLR(R) 641 (“Narindar Singh Kang”) at [50], the above declaration (which was, at that time, set out in s 24 of the Legal Profession Act (Cap 161, 2001 Rev Ed)):

  87. [34] In Narindar Singh Kang, the court also cited (at [50]) the following observations by Prof Jeffrey Pinsler in Ethics and Professional Responsibility: A Code for the Advocate and Solicitor (Academy Publishing, 2007) (“Ethics and Professional Responsibility”):

  88. [35] The declaration set out in the Legal Profession (Admission) Rules is an important one for a number of reasons. Indeed, it embodies the essence of at least two main characteristics of a profession (here, the legal profession). First, it refers to the special professional knowledge and ability required of every lawyer. Secondly (and perhaps more importantly), it emphasises the commitment by a lawyer to conduct himself or herself in the spirit of truth and honesty – a commitment which is necessarily one that is ethical in nature. This commitment may – and, in fact, has been – embodied in regulations. However, it must never be forgotten that such regulations are grounded in an ethical source rooted in the truth and honesty which are the vital (albeit intangible) values that undergird the very practice of law itself. In this regard, the following observations by the Court of Three Judges in Law Society of Singapore v Rasif David [2008] 2 SLR(R) 955 at [49] and [52], in that part of the judgment aptly entitled “Coda: The signal importance of values in the legal profession”, may also be usefully noted:

  89. [36] The ethical obligations owed by a lawyer to his or her client are not one-sided by any means. As noted above, a lawyer possesses special expertise which is brought to bear for his or her client and for which he or she must be properly remunerated. However, the idea that a lawyer can, inter alia, charge his or her client in an excessive fashion contradicts the spirit of truth and honesty to which we have already referred. The duty of truth and honesty owed by a lawyer to his or her client contains a corresponding ethical obligation not to take advantage of the client (whether monetarily or otherwise). Indeed, the same may be said with regard to the special expertise of a lawyer inasmuch as the lawyer, being in a superior position in relation to the client (which is why his or her expertise and advice are being sought in the first place), is under an ethical obligation not to take advantage of the client. All this serves to distinguish a profession from other vocations. As Lord Hugh P MacMillan aptly observed in a speech, “Law and History”, delivered at the Jubilee Meeting of the Scottish Law Agents Society in October 1934 (see Lord MacMillan, Law and Other Things (Cambridge University Press, 1937) pp 118–134 at p 127, also cited by Prof Pinsler in Ethics and Professional Responsibility at para 01-003):

  90. [37] In a similar vein, V K Rajah J (as he then was), in Wong Keng Leong Rayney v Law Society of Singapore [2006] 4 SLR(R) 934 (affirmed by the Court of Appeal in Wong Keng Leong Rayney v Law Society of Singapore [2007] 4 SLR(R) 377), observed as follows (at [84]–[85]):

  91. [38] An excellent summary of the legal profession – embodying as well as confirming the analyses set out above – may be found in the following passage in the introductory chapter to Part I of Ethics and the Legal Profession (Michael Davis & Frederick A Elliston eds) (Prometheus Books, 1986) at pp 24–25:

  92. The medical profession

  93. [39] Turning to the medical profession, the idea that the practice of medicine is, above all, a calling of the highest order is a historical cornerstone of the medical profession. It can be traced through the millennia – through countless doctors who have taken, in one form or another, a version of what has oft been hailed as one of the world’s first ethical codes, the Hippocratic Oath (and see also, in this regard, the general definition of a “profession” in the OED referred to above at [30]). In Singapore, this oath currently takes the form of the Singapore Medical Council Physician’s Pledge (presently found in the Second Schedule to, read with reg 16(2) of, the Medical Registration Regulations 2010 (GN No S 733/2010)), which is taken by every doctor upon being admitted as a fully registered medical practitioner and which reads as follows:

  94. [40] This pledge is even more explicit in its reference to ethical obligations and values than the corresponding declaration taken by lawyers (pursuant to r 30 of, read with the First Schedule to, the Legal Profession (Admission) Rules (reproduced above at [32])). In our view, this pledge constitutes no mere rhetoric. Instead, it embodies – as the summary with regard to the legal profession set out above (at [38]) underscores – a calling that seeks, amongst other obligations, to be helpful to others in an important way (here, by curing the sick) and goes beyond mere money-making and the advancement of self-serving interests.

  95. [41] Indeed, the proposition that the spirit of public service and the existence of ethical obligations underpin all professional practice applies with equal (and, arguably, even greater) force to medical practitioners, whom we collectively entrust with our health, our well-being and, in certain instances, our lives. In this respect, the medical profession occupies a unique societal position of both great privilege and commensurate responsibility. In this regard, the following observations by the then Governor of the Straits Settlements, Sir John Anderson, in his speech on the occasion of the formal opening of the very first medical school in Singapore on 28 September 1905 are particularly apposite (published in The Straits Times of 29 September 1905 (available at <http://newspapers.nl.sg/Digitised/Article/straitstimes19050929-1.2.47.aspx> (accessed 24 June 2013)), also quoted (in part) in Transforming Lives: NUS Celebrates 100 Years of University Education in Singapore (Singapore University Press Pte Ltd, 2005) at p 11):

  96. As also articulated by this court in Low Cze Hong v Singapore Medical Council [2008] 3 SLR(R) 612 (“Low Cze Hong”) at [36]:

  97. [42] We would like to emphasise, in the circumstances, that fostering a culture of ethics and striving to achieve the ideals embodied within the practice of medicine as a whole represent the only meaningful way to approach the questions that matter in this profession. It is with this in mind that we now turn to Issue 1 proper, namely, whether there exists, on the part of all doctors who practise medicine in Singapore, an ethical obligation to charge a fair and reasonable fee for their services. In our view, any engagement with this issue must take place in the full context of the professional status of doctors and the unique situation which they occupy in society, coupled with the ethical considerations which necessarily attach to both these weighty positions (and which are embodied in the pledge reproduced above at [39]).

  98. Is there an ethical obligation to charge a fair and reasonable fee on the part of all doctors practising medicine in Singapore?

  99. [43] Given the fact that ethical obligations are an integral part of professions in general and the medical profession in particular, are all doctors who practise medicine in Singapore under an ethical obligation to charge a fair and reasonable fee for their services? As we have already indicated above (at [28]), we would answer this question in the affirmative.

  100. [44] As counsel for the Respondent, Mr Alvin Yeo SC (“Mr Yeo”), quite correctly pointed out, the bedrock of the relationship between a professional and his or her client is trust and confidence (see also, to like effect, the DC decision at [4.5.2] as well as generally above at [32]–[42]). We also agree with Mr Yeo that in this regard, there can be no distinction between doctors on the one hand and lawyers on the other. This proposition – viz, that the relationship between a professional and his or her client is founded on trust and confidence – is so basic as to underpin every professional relationship and, indeed, applies with arguably greater force to medical practitioners, given the particular vulnerability of those who seek out medical services and the high stakes involved in many medical decisions. The especial vulnerability of patients and their dependence on health care professionals are heightened by the reality that information is (in the nature of things) distributed unequally in the medical setting, with a doctor invariably possessing far more information than his or her patient regarding the medical options and services available, where they may be found and how they should be priced. In such a setting, it is imperative to ensure that the sanctity of the trust and confidence reposed by a patient in his or her medical practitioner is safeguarded to the fullest extent possible. Put simply, given a doctor’s specialised knowledge and training coupled with his or her duty to utilise these skills both to heal the patient and to look after the latter’s welfare generally (with conscience and dignity, as embodied in the pledge set out above at [39]), any action on the part of a doctor which results in the taking advantage of his or her patient’s vulnerability (and this includes overcharging) would be a contradiction in terms and, indeed, would represent an unacceptable conflict of interest. It is therefore clear, in our view, that every doctor is under an ethical obligation to charge a fair and reasonable fee for services rendered to his or her patient. The corollary of this is that overcharging would constitute an abuse of the trust and confidence placed by a patient in his or her doctor, and this would (in turn) constitute conduct that is dishonourable to the doctor as a person as well as in his or her profession, ie, it would constitute professional misconduct within the meaning of s 45(1)(d) of the MRA.

  101. [45] Indeed, it has been clearly established that gross overcharging by a lawyer constitutes professional misconduct (notwithstanding the presence of a fee arrangement or an agreement between the lawyer and his or her client).

  102. [46] In Law Society of Singapore v Andre Ravindran Saravanapavan Arul [2011] 4 SLR 1184 (“Arul”), it was observed thus (at [31]):

  103. Whether the ethical obligation not to overcharge is inherent in the legal profession

  104. [47] Mr Lee argued, on behalf of the Appellant, that the legal position with regard to overcharging by lawyers is distinguishable from that in respect of overcharging by doctors. In particular, he submitted that decisions such as the one considered in the preceding paragraph are not authority for the proposition that the rule against overcharging is inherent in a lawyer’s professional status because the legal profession is governed by express statutory provisions. Rule 38 of the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) (“the LP(PC)R”), for example, states expressly that an advocate and solicitor shall not render a bill which amounts to “such gross overcharging that will affect the integrity of the profession”. There is, Mr Lee argued, currently no equivalent rule governing the conduct of doctors in this regard.

  105. [48] In response to the above argument, Mr Yeo argued, on behalf of the Respondent, that the cases of Re Han Ngiap Juan [1993] 1 SLR(R) 135 (“Han Ngiap Juan”) and Re Lau Liat Meng [1992] 2 SLR(R) 186 (“Lau Liat Meng”), both of which held that lawyers who grossly overcharged their clients could be found guilty of professional misconduct, were decided before the earliest version of r 38 of the LP(PC)R was promulgated in 1998. More importantly, perhaps, it bears reiterating that these decisions express in clear terms the proposition that lawyers who charge exorbitant fees lay themselves open to disciplinary action for having abused the trust and confidence reposed in them by their clients.

  106. [49] Mr Lee also argued that apart from the LP(PC)R, the rule against lawyers overcharging their clients has been in statutory form since at least 1934 (see chs V and VI of the Advocates and Solicitors Ordinance 1934 (SS Ord No 32 of 1934)). With respect, this assertion is flawed. Mr Lee appears to be referring, in this regard, to the rule prohibiting lawyers from entering into fee agreements which are unfair or unreasonable (presently encapsulated in s 113 of the Legal Profession Act (Cap 161, 2009 Rev Ed)). This rule (“the s 113 LPA rule”) permits the court to cancel an unfair and/or unreasonable fee agreement. However, as the Respondent points out (correctly, in our view), the unfairness and/or unreasonableness of a fee agreement could arise from factors other than the quantum of the fees concerned, for example, where the agreement was not fully explained to the client. Further, the s 113 LPA rule also presupposes that there is a fee agreement in place, an element which the DC found the Appellant had not proved. Hence, the s 113 LPA rule cannot be considered a general rule of conduct proscribing lawyers from overcharging for their professional services.

  107. [50] We note that Mr Lee also referred to the Legal Profession Act (Cap 161, 1990 Rev Ed), the statutory regime which applied to Lau Liat Meng and Han Ngiap Juan. He additionally referred to the Sixth Schedule to the Legal Profession (Solicitors’ Remuneration) Order 1974 (GN No S 205/1974) (“the Solicitors’ Remuneration Order 1974”), the provision governing solicitors’ remuneration at the time Lau Liat Meng and Han Ngiap Juan were decided. This Schedule states that “[n]on-contentious work for which no provision is made by means of a scale or fixed sum shall be such sum as is fair and reasonable having regard to all the circumstances of the case”. Despite the presence of this particular Schedule, we are of the view that the tenor of the language utilised in Lau Liat Meng and Han Ngiap Juan indicates that the ethical duty not to overcharge is inherent in the legal profession and does not derive its source from statute or regulations (as a matter of fact, neither decision referred to the Sixth Schedule to the Solicitors’ Remuneration Order 1974). On the contrary, it appears that the situation is the converse: the relevant statutory provisions and regulations merely make explicit what is an obviously logical and commonsensical ethical obligation, given the relationship of trust and confidence between a lawyer and his or her client. In Han Ngiap Juan, the court emphasised the right of a client to trust that any bill rendered by his or her lawyer was fair and reasonable, whilst in Lau Liat Meng, it emphasised (at [20]) that “the legal profession as an honourable profession is given the duty and responsibility to regulate itself, a responsibility made all the heavier in view of the trust necessarily placed by lay persons overwhelmed by the intricacies of the law”. This underscores the important fact that in both of these decisions, the proscription against overcharging was considered to be a general and inherent one in the legal profession.

  108. [51] Mr Lee nevertheless sought to distinguish the factual matrix in Lau Liat Meng from that in the present appeal, arguing that the former was a case of dishonesty and attempted deception, whereas the present case related to the mere quantum of fees. With respect, Mr Lee appeared to be arguing that there could be no finding of overcharging (or no finding of grossly improper conduct giving rise to disciplinary proceedings) in the absence of additional factors such as dishonesty or a clear and distinct finding of abuse of trust or relationship. However, it is clear from the case law just cited that the presence of such additional factors is unnecessary, and that overcharging can – in and of itself – constitute professional misconduct. As already emphasised, gross overcharging on the part of a lawyer constitutes (in and of itself) a clear abuse of the trust and confidence reposed by the client in the lawyer and brings the legal profession into disrepute in the eyes of the public. Put simply, such conduct is dishonourable and is the very antithesis of the ideal of public service, which is the hallmark of what it means to be a professional. If, in fact, overcharging also encompasses elements of dishonesty or fraud, it would simply be an a fortiori case which calls for even stricter sanctions to be imposed on the lawyer concerned.

  109. The ethical obligation not to overcharge in the context of the medical profession

  110. [52] Although we have dealt with the Appellant’s specific submissions in some detail, they are, with respect, not only unmeritorious, but also completely ignore the foundational proposition (already emphasised above) to the effect that there are ethical obligations which professionals must observe regardless of their respective professions. More specifically, the charging of fees is common to all professions, and there must therefore be – even in the absence of express statutory provisions or regulations – an ethical obligation on the part of a professional, over and above contractual and market forces, to charge his or her client only a fair and reasonable fee for services rendered. As already explained above, a professional possesses special expertise and learning which clients or patients (in a natural position of vulnerability) depend upon, reposing (in the process) trust and confidence in the professional concerned. Hence, an ethical obligation to charge a fair and reasonable fee for services rendered is necessary, lest there be an abuse of the trust and confidence reposed by the client in the professional concerned (regardless of: (a) whether the latter is a lawyer, a doctor or, indeed, any other professional; and (b) whether the services concerned are provided in a public or a private context). This is logical, commonsensical and flows from first principles. Express statutory provisions or regulations in this regard merely restate this. We have also explained that the rationale for this ethical obligation to charge fairly and reasonably applies with paramount force to medical professionals, given the immeasurable trust and confidence bestowed on them both by their patients and by the community at large.

  111. [53] It should also be noted – in a closely related vein – that what constitutes a fair and reasonable fee for services rendered would depend not only on the relevant facts (see also the helpful criteria laid down by the DC above at [22(a)] and below at [72]), but also on the views of experts in the particular field of practice concerned. Mr Lee argued that the situations which could potentially arise in the medical context were so varied that it would be impossible for a view to be given as to what would be a fair and reasonable fee to charge in a particular case. We cannot accept this argument. The difficulty in expressing a view does not necessarily entail that no view whatsoever can be given. If such reasoning is taken to its logical conclusion, there would, ex hypothesi, be no objective standards to guide doctors in setting their fees. This would theoretically mean that doctors can charge whatever they like. Indeed, we would observe parenthetically that such logic would also apply, by parity of reasoning, to all other professions. This surely cannot be the case. Even given differences in factors such as the seniority and expertise of the doctor concerned as well as the location of his or her clinic, it must at the very least be possible for the experts concerned to opine on the possible range of fees which would be considered fair and reasonable in a particular set of circumstances. In a related vein, we also note the following observations by the Competition Commission of Singapore in its Statement of Decision in Re Singapore Medical Association – Guidelines on Fees [2010] SGCCS 6 (at [28] and [146]), which, whilst made in a somewhat different context, nevertheless demonstrate the viability of arriving at fair and reasonable fees for medical services through improved pricing transparency:

  112. This approach achieves what is, in our view, a practical balance between the proscription of overcharging on the one hand and the need to ensure appropriate remuneration for doctors’ services on the other hand.

  113. [54] Returning to considerations of general principle, we also note that Mr Lee appeared to concede on behalf of the Appellant that a doctor was under an ethical obligation to charge a fair and reasonable fee for services rendered. In the Appellant’s written case, for example, it is stated thus:

  114. However, this concession appears to be more apparent than real, for in the very next paragraph of that same written case, it is stated as follows:

  115. [55] Indeed, the seemingly ambiguous nature of the Appellant’s arguments in this regard is neatly encapsulated in the following submission at a later part of the Appellant’s written case:

  116. [56] In our view, the substance of the Appellant’s case is that a doctor does not have any ethical obligation to charge a fair and reasonable fee for services rendered, although the quantum or size of the fee concerned might be a factor in ascertaining whether or not (when taken into account together with all other relevant factors) the doctor concerned is guilty of professional misconduct in the form of overcharging. We have already explained that this approach is flawed, not least because it erodes the relationship of immense trust and confidence that exists between a doctor and his or her patient. It is, however, understandable why the Appellant has adopted such an approach. For one, it paves the way for the further (and closely related) argument that where there is a valid and binding agreement between a doctor and his or her patient: (a) the mere quantum of the fee which the parties agreed on cannot (in the absence of other factors) give rise to a breach of any ethical obligation; and (b) on the contrary, such an agreement is enforceable by the doctor concerned. This would be an appropriate juncture to deal with this last-mentioned argument.

  117. Is a doctor’s ethical obligation to charge a fair and reasonable fee superseded by a valid agreement between the doctor and his or her patient?

  118. [57] Mr Lee also argued, on behalf of the Appellant, that there had in any event been a valid and binding agreement between the Appellant and the Patient for the fees invoiced. This agreement, he added, was not vitiated under the general principles of contract law. In the circumstances (so the argument went), the ethical obligation to charge a fair and reasonable fee for services rendered did not apply to the Appellant. Put simply, such an ethical obligation (assuming that it existed) had been superseded by this agreement. Reduced even further, Mr Lee’s argument was that in a situation such as this, contractual (or commercial) obligations trumped ethical obligations.

  119. [58] Before proceeding to analyse the aforesaid argument, we would observe that this argument cannot be mounted if there was no fee agreement between the Appellant and the Patient in the first place. This was, in fact (as mentioned above at [22(c)]), the finding of the DC, which analysed this issue in some detail after having heard the relevant testimony (see the DC decision at [4.7.1]–[4.7.11]). We see no reason to interfere with the DC’s finding, which is based on a considered view of the relevant evidence as well as on coherent reasoning (see also the role of this court in an appeal against the order of a Disciplinary Committee under the MRA/a Disciplinary Tribunal under the current Medical Registration Act (set out below at [77])). It is true, as Mr Lee sought to argue, that the DC only found that there had been no “overarching” fee agreement (see the DC decision at [4.7.11]). However, it is also clear on the available evidence that there was (contrary to Mr Lee’s submission) no series of individual fee agreements either.

  120. [59] Be that as it may, even assuming that an agreement was entered into between the Appellant and the Patient, the Appellant’s argument (see above at [57]) to the effect that contractual or commercial obligations trump ethical obligations cannot be accepted.

  121. [60] One of the Appellant’s key submissions in this regard is that the court ought to be concerned not with the resulting terms of an agreement between a doctor and his or her patient as such, but rather, with the manner in which the agreement was entered into. In particular (so the argument runs), the court need only concern itself with whether or not the doctor concerned is guilty of conduct that falls foul of the principles of contract law (for example, by making a misrepresentation which the patient relies upon in entering into the agreement, or by exerting duress or undue influence on the patient to enter into the agreement). In short, the Appellant’s argument centres on the procedural fairness (or unfairness) in entering into an agreement, as opposed to the substantive fairness (or unfairness) of the actual terms of the agreement itself. This is akin to the approach adopted by the Judicial Committee of the Privy Council towards the broader doctrine of unconscionability in contract law in its decision (in an appeal from the New Zealand Court of Appeal) in Thomas Bruce Hart v Joseph O’Connor and Others [1985] AC 1000 (“Hart”). Quite apart from the fact that – in the Singapore context at least – the broader doctrine of unconscionability is in a state of flux (see, for example, the Singapore Court of Appeal decisions of Sandar Aung v Parkway Hospitals Singapore Pte Ltd (trading as Mount Elizabeth Hospital) and another [2007] 2 SLR(R) 891 at [39] and Chua Chian Ya v Music & Movements (S) Pte Ltd (formerly trading as M & M Music Publishing) [2010] 1 SLR 607 at [17]–[24], as well as the Singapore High Court decision of Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR(R) 117 at [72]; although cf the Singapore High Court decision of E C Investment Holding Pte Ltd v Ridout Residence Pte Ltd and another (Orion Oil Ltd and another, interveners) [2011] 2 SLR 232 at [62]–[67]), the analogy with Hart is, with respect, fundamentally flawed. This is because ethical obligations are, ex hypothesi, not only procedural, but also substantive in nature. In other words, in the ethical context, it is entirely permissible (and indeed appropriate) for the court (or a Disciplinary Committee under the MRA/a Disciplinary Tribunal under the current Medical Registration Act, as the case may be) to examine the substantive fairness of the terms of an agreement between a doctor and his or her patient (here, as to the fees invoiced). The point of the inquiry would, of course, be to ensure that the fees invoiced are fair and reasonable, with a finding to the contrary meaning that the doctor concerned has abused the relationship of trust and confidence which (as emphasised above) constitutes the foundation or bedrock of all relationships between professionals and their clients.

  122. [61] Indeed, in the context of the legal profession, the Court of Three Judges, in the recent decision of Law Society of Singapore v Ang Chin Peng and another [2013] 1 SLR 946 (“Ang Chin Peng”), made the following salient observations (at [34]–[35], [41]–[42] and [46]–[50]):

  123. Whilst the court in Ang Chin Peng was dealing with an express statutory provision, the general principles expressed therein buttress the conclusion which we have arrived at in the context of the present proceedings.

  124. [62] Most importantly, perhaps, there are decisions of this court which endorse this particular ethical obligation (to charge only a fair and reasonable fee for services rendered) in the context of the practice of medicine itself. In Low Chai Ling v Singapore Medical Council [2013] 1 SLR 83, for example, this court stated (at [66]) that “it can be confidently said that no professional should overcharge or be allowed to overcharge” [emphasis added]. And in Low Cze Hong, this court held (at [88]) as follows:

  125. [63] The Appellant’s argument that there is no ethical limit to the fees which a doctor can charge was also considered (albeit by way of obiter dicta) by the Court of Appeal in the context of the judicial review proceedings which the Appellant brought against the appointment of the DC (see above at [16]). Again, we would like to draw attention to the court’s observations in Susan Lim (CA) (at [55]) (quoted in the extract from Ang Chin Peng above at [61]), where the court emphasised that overcharging should not be viewed as a merely commercial matter and could amount to punishable professional misconduct in certain circumstances (as decided by the relevant professional body in the first instance and by a court of law in the event of an appeal).

  126. [64] Returning to considerations of general principle, it is clear that as a professional, a doctor cannot rely solely on the morals of the marketplace. As a member of an honourable profession which is rooted in the ideal of public service, a doctor has higher ethical obligations which are founded on a relationship of trust and confidence for the reasons set out in detail above (see, especially, above at [39]–[44]). Viewed in this light, such ethical obligations necessarily trump contractual or commercial obligations where there is a conflict between the two. However, as Mr Yeo correctly observed, this does not mean that contractual obligations are irrelevant. Indeed, depending on the particular factual matrix, there will often (but not always) be an overlap between ethical obligations and contractual obligations. But, one thing is clear: ethical obligations are fundamental and both characterise as well as justify the special status of a “profession” that is conferred on the medical profession. Hence, such ethical obligations must – in a situation where they are in conflict with contractual or commercial obligations – prevail over the latter.

  127. Issue 2

  128. [65] We turn now to the next issue, Issue 2, which is whether the Appellant should be bound by a doctor’s ethical obligation to charge a fair and reasonable fee for services rendered when such obligation had not been published in any legislation or ethical code at the material time. This particular issue has, in fact, already been dealt with during the course of our analysis of Issue 1. It will be recalled that we concluded that the ethical obligation to charge a fair and reasonable fee for services rendered is an inherent one in all professions, and that any express statutory provisions or regulations merely state in explicit terms an obligation which has existed all along. It follows, therefore, that Issue 2 must be resolved in the Respondent’s favour.

  129. [66] We would add that the Appellant’s arguments to the contrary are, in any event, not supported by the relevant legal material.

  130. [67] For example, professional misconduct pursuant to s 45(1)(d) of the MRA, by its very nature, can take a myriad of forms – of which overcharging is one. Indeed, in Low Cze Hong, where this court reviewed comprehensively (at [20]–[37]) the scope of “professional misconduct” in the context of s 45(1)(d), it was observed (at [27]) that:

  131. The court proceeded to state as follows (at [37]):

  132. The DC rightly noted that it was only the first limb of this quotation which was relevant to the disciplinary proceedings against the Appellant (see the DC decision at [4.1.3]).

  133. [68] In a related vein, the Singapore Medical Council Ethical Code and Ethical Guidelines (“the ECEG”) is also applicable to our inquiry. The ECEG represents the fundamental tenets of conduct and behaviour expected of doctors practising medicine in Singapore, although it expressly professes not to be an exhaustive code. Although there is no provision in the ECEG which refers precisely to an ethical obligation to charge a fair and reasonable fee for services rendered, the ECEG nevertheless contains relevant provisions which, on their terms, support the existence of such an obligation. In particular, it is important for the honour and integrity of the medical profession that doctors charge fairly and reasonably, lest the profession become or be seen as one that is motivated by mere personal gain or financial considerations. In this regard, para 3 of the ECEG provides as follows:

  134. [69] Reference may also be made to paras 4.2.5.2 and 4.6.1 of the ECEG, which read as follows:

  135. [70] We further emphasise that the ethical rule that a doctor must charge a fair and reasonable fee for his or her services is not only one that is rooted in logic, common sense, justice and fairness, but is also one that will not be enforced unreasonably. As the DC itself pertinently observed (see the DC decision at [4.5.5]):

  136. Issue 3

  137. Overview

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