Low Cze Hong v Singapore Medical Council

[1] This is an appeal against the decision of the respondent, the Singapore Medical Council (“SMC”), which found the appellant, Dr Low Cze Hong (“Dr Low”), guilty of two charges of professional misconduct, and ordered that he be, inter alia, fined $7,000. The charges arose from a complaint lodged by a 78-year-old patient, Toh Seng, in relation to Dr Low’s surgical procedure on his blind right eye performed just two days after an initial consultation with Dr Low. At the time of the consultation, Toh Seng had already been nearly totally blind for ten years. One can surmise that it was not mere disappointment but in fact severe dissatisfaction with the treatment he received that drove the patient to lodge a complaint against his doctor. At the conclusion of the hearing, we dismissed the appeal and now set out our reasons in full.

[2] Dr Low is a consultant ophthalmologist at C H Low Surgical Centre Pte Ltd situated at Mount Elizabeth Medical Centre. He has been practising as an ophthalmologist since 1972. Toh Seng, accompanied by his son, Mr Toh Tian Hock, and his daughter, Ms Toh Khek Cheng, first consulted Dr Low at his clinic on 26 June 2002.

[3] Prior to consulting Dr Low, Toh Seng had been treated for glaucoma in both eyes by Dr Peter Tseng (“Dr Tseng”), Senior Consultant Ophthalmic Surgeon at the Singapore National Eye Centre (“SNEC”), for almost ten years. Toh Seng had been blind in his right eye for many years and his left eye was nearly totally blind. Toh Seng had sought treatment from Dr Tseng on 4 June 2002 for high right intraocular pressure at 40mmHg and was prescribed Gutt Timpilo and Gutt Trusopt (eyedrops) and Diamox tablets. When Dr Tseng saw Toh Seng again on 5 June 2002 and 18 June 2002, Toh Seng’s intraocular pressure had dropped to 20mmHg. This was within the normal range.

[4] At his initial consultation with Dr Low, Toh Seng had informed Dr Low that for the previous ten years, he had been treated by Dr Tseng at SNEC for glaucoma. Immediately after Dr Low examined Toh Seng during this consultation, he recommended cataract surgery for Toh Seng’s left eye and a trabeculectomy (glaucoma drainage surgery) with a Molteno tube implant for the right eye. Although Toh Seng’s subsequent complaint to the SMC was about the treatment on both eyes, proceedings were ultimately instituted only for the treatment on the right eye.

[6] Unfortunately, Toh Seng suffered an extrusion of the Molteno tube in early August 2002. After consultations with Dr Low and seeking second opinions, Toh Seng underwent surgery at Tan Tock Seng Hospital to remove the Molteno tube on 10 September 2002. This surgery was performed by another ophthalmologist. Toh Seng subsequently filed a complaint against Dr Low with the SMC on 29 October 2003.

[7] Dr Low filed his reply to the complaints committee of the SMC (“the Complaints Committee”) on 8 January 2004. Thereafter, on 16 November 2004, the SMC sent a letter to both Toh Seng and Dr Low to clarify, inter alia, whether other treatment options were offered and whether the relative benefits and risks of these options were discussed. Toh Seng and Dr Low responded on 26 and 28 November 2004 respectively.

[8] The Complaints Committee thereafter wrote a letter to Dr Low dated 27 April 2005 notifying him that some aspects of the complaint would be referred to a disciplinary committee of the SMC. On 23 November 2006, Dr Low received a notice of inquiry from the SMC together with an expert report prepared by Assoc Prof Paul Chew (“AP Chew”). The notice of inquiry laid out the two charges of professional misconduct under s 45(1)(d) of the Medical Registration Act (Cap 174, 2004 Rev Ed) (“the Act”) levelled against Dr Low.

[9] The first charge read:

The particulars of this first charge, were, inter alia:

[10] The second charge read:

The particulars of the second charge were, inter alia:

[11] Dr Low claimed trial before the disciplinary committee chaired by Prof John Wong (“the DC”), and the inquiry was held on 30 July 2007, 31 July 2007 and 27 August 2007. The other members of the DC were Assoc Prof Ong Biauw Chi (who replaced Assoc Prof Gilbert Chiang on 5 January 2008), Prof Chacha Pesi Bejonji and Ms Wong Mui Peng (who was the lay member). The legal assessor advising it was Mr Giam Chin Toon SC. On 5 January 2008, the DC came to the following conclusions on the first charge (at para 13 of its verdict):

[12] For the second charge, the DC found (at para 20 of its verdict) that:

[13] It is worthy to note that Dr Low was not faulted for the failure of the trabeculectomy he had performed, but for the inappropriateness of the treatment. Before passing sentence on Dr Low, the DC made the following pertinent observations on Dr Low’s conduct (at para 22 of the verdict):

The DC then passed the following sentence:

[14] Before us, Dr Low appealed against his conviction on both charges. For the first charge, he disputed each of the three conclusions reached by the DC. With regards to the first conclusion (see [11] above), he contended that:

(a) Contrary to evidence, the DC failed to recognise that Toh Seng was suffering from an acute onset of neovascular glaucoma during his first consultation with Dr Low, and not the chronic angle-closure glaucoma treated by Toh Seng’s primary physician (Dr Tseng).

(b) The DC erred in law, as the allegation that Dr Low had failed to consult Toh Seng’s primary physician before undertaking invasive surgery was not pleaded in the charge, nor were any particulars thereof pleaded, in the amended notice of inquiry dated 16 July 2007. As such, the DC took into account extraneous matters.

(c) Contrary to evidence, the DC failed to recognise that neovascular glaucoma was intractable to medical therapy.

(d) Contrary to evidence and/or in error of law, the DC incorrectly drew a distinction between the treatment of a sighted and non-sighted glaucomatous eye.

[15] With regards to the second conclusion (see [11] above), Dr Low contended that:

(a) Contrary to evidence, the DC failed to recognise that neovascular glaucoma was intractable to medical therapy.

(b) Contrary to evidence, the DC failed to recognise that surgical intervention, in particular, trabeculectomy with a Molteno implant which was performed on Toh Seng, was an appropriate treatment for neovascular glaucoma.

(c) No evidence was provided at the inquiry on whether the risk of side effects of a limited trial of medication was acceptable.

(d) Contrary to evidence and/or in error of law, the DC incorrectly drew a distinction between the treatment of a sighted and non-sighted glaucomatous eye.

[16] With regards to the third conclusion (see [11] above), Dr Low contended that:

(a) The DC failed to recognise that surgical intervention, in particular, trabeculectomy with a Molteno implant, was an appropriate treatment for neovascular glaucoma, and, as such, there was no reason for Dr Low to refer Toh Seng to another institution for alternative treatments.

(b) The DC erred in law because the allegation that Dr Low had essentially failed to refer Toh Seng to another institution for alternative therapy was not pleaded in the charge, nor were any particulars thereof pleaded, in the amended notice of inquiry dated 16 July 2007. As such, the DC took into account extraneous matters.

[17] Furthermore, Dr Low contended that the DC had erred in law in taking into account the opinion evidence of Dr Tseng on the appropriateness of his treatment and management of Toh Seng, when Dr Tseng was not an expert witness, but a witness of fact. Moreover, the DC erred in law in failing to recognise that there was a responsible body of professional opinion, logically held, that supported his treatment and management of Toh Seng, ie, that surgical intervention via a trabeculectomy with a Molteno tube was an appropriate treatment for Toh Seng’s neovascular glaucoma.

[18] For the second charge, Dr Low asserted that Toh Seng and his family were aware of the nature of the surgery, and the risks of the procedure and the availability of other treatment options had been explained to him.

[19] Before analysing these grounds of appeal, it is perhaps appropriate to first outline the powers of this court in hearing appeals emanating from decisions of disciplinary committees of the SMC. This case also presents a timely opportunity for us to examine the scope of the term “professional misconduct” as employed in the Act.

[20] To recapitulate, Dr Low was charged under s 45(1)(d) of the Act for professional misconduct. Section 45(1) reads as follows:

[21] In examining whether the DC had erred in law in the present case, one has to first establish the standards demarcated by the term “professional misconduct”. Before the DC, counsel for Dr Low forcefully submitted that SMC’s Ethical Code and Ethical Guidelines (January 2002) (“the SMC Ethical Code”) defined “professional misconduct” as being akin to “infamous conduct” (at p 26). “Infamous conduct” had been judicially defined as involving “some moral turpitude, fraud or dishonesty or such persistent and reckless disregard of duty” in Dudley Ernest Lyncoln Wager Felix v General Dental Council [1960] AC 704 (“Felix”). Counsel for Dr Low relied on Felix for his submission that professional misconduct must involve conduct of moral turpitude or fraud or dishonesty.

[22] In our view, the definition of “professional misconduct” suggested by counsel for Dr Low should be categorically rejected. The relevant excerpt of the SMC Ethical Code (at p 26) reads:

[23] We note that while the SMC Ethical Code states that professional misconduct is akin, it does not equate it or deem it to be identical, to infamous conduct. That was why it specifically referred to the wide definition used in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 (“Allinson”) which did not contain any reference to moral turpitude, fraud or dishonesty. That said, this continuing reference to “professional misconduct” being somehow sired by the concept of “infamous conduct in a professional respect” is not altogether helpful and should perhaps now be dropped altogether.

[24] It also bears noting that in Felix, Lord Jenkins had understandably given a restrictive definition to the term “infamous conduct in a professional respect” because, as rightly pointed out in Tan Sek Ho v Singapore Dental Board [1999] 4 SLR 757 (“Tan Sek Ho”) at [13.5], at that time, a finding of infamous conduct necessarily resulted in the harsh penalty of removal from the medical or dental register of the UK. It will therefore be helpful to now examine how the term “infamous conduct” has been gradually jettisoned.

[25] In 1969, the Medical Act of that year in the UK (c 40) substituted the phrase “infamous conduct in a professional respect” to “serious professional misconduct” and this stipulation was re-enacted in the Medical Act 1983 (c 54) (UK). This was accompanied by alternative punishments such as suspensions.

[26] Likewise in Singapore, the Medical Registration Act (Cap 174, 1985 Rev Ed) was amended in 1998 (by Act 5 of 1997) where the phrase “infamous conduct in a professional respect” was substituted with the less flatulent phrase “professional misconduct”. During the second reading of the Medical Registration Bill (Bill 2 of 1997) on 25 August 1997, this amendment was explained thus (see Singapore Parliamentary Debates, Official Report (25 August 1997) vol 67 at col 1566 (Yeo Cheow Tong, Minister for Health)):

[27] In other words, the replacement of the old term “infamous conduct” with the new term “professional misconduct” by Parliament was not merely a change in linguistic semantics but rather one of real substance. The new term “professional misconduct” plainly embraces a wider scope of conduct for which disciplinary action can be taken by the SMC. It is thus apposite to understand how the term “professional misconduct” has been interpreted in other Commonwealth jurisdictions. In interpreting the term “professional misconduct”, this court is not constrained by the references in the SMC Ethical Code to the definition of the term being “akin to the expression ‘infamous conduct in a professional aspect’”. This is a legal issue in which the courts are better placed to ascertain Parliament’s intention. In any event, the interpretation of the phrase “professional misconduct” in the SMC Ethical Code cannot govern the meaning of the phrase as it appears in s 45(1)(d) of the Act. This would be akin to the tail wagging the dog. In our view, the SMC, in clarifying the scope of “professional misconduct”, may have taken an unduly restrictive view in seeking to maintain an umbilical cord to the concept of “infamous conduct”. This is no longer relevant today in fleshing out the meaning of “professional misconduct” for the reasons we now give.

[28] In the UK, the statutory language now used in the corresponding legislation is “serious professional misconduct”. Lord Clyde in John Roylance v General Medical Council (No 2) [2000] 1 AC 311 (“Roylance”) gave a thorough exposition of that term (at 331–333) which merits reproduction in full:

[29] In In re A Solicitor [1972] 1 WLR 869, Lord Denning MR observed (at 873), that negligence “may amount to a professional misconduct if it is inexcusable and is such as to be regarded as deplorable by his fellows in the profession”. Accordingly, what one can distil from the leading English authorities is that professional misconduct requires more than mere negligence, but need not go so far as to require moral turpitude, fraud or dishonesty.

[30] Further guidance can be usefully found in the High Court of New Zealand case of McKenzie v Medical Practitioners Disciplinary Tribunal [2004] NZAR 47 (“McKenzie”) which endorsed the following test for professional misconduct (from Ongley v Medical Council of New Zealand (1984) 4 NZAR 369 at 375):

Counsel in McKenzie (at [64]) also cited a passage from an earlier unreported New Zealand case (B v Medical Council of New Zealand Auckland High Court, 8 July 1996) which helpfully sets out the roles the court and the disciplinary committee play in the disciplinary process:

[31] The Australian courts have generally followed the test in Allinson ([23] supra). The Supreme Court of Victoria in Campbell v The Dental Board of Victoria [1999] VSC 113, after reviewing several Australian authorities, endorsed the following test used in Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 at 507):

[32] Counsel for the SMC relied on Pillai v Messiter (No 2) (1989) 16 NSWLR 197 (“Pillai”) where the New South Wales Court of Appeal considered the statutory test of “misconduct in a professional respect” under the Medical Practitioners Act 1938 (NSW). Kirby P said (at 200):

[33] Samuels JA said (at 208):

[34] As we have seen, the Commonwealth authorities we have outlined above are unequivocal in rejecting moral turpitude, fraud or dishonesty as a necessary element of professional misconduct. In providing content to the concept of professional misconduct, both Roylance ([28] supra) and Pillai gave examples of how departures from accepted standards could constitute professional misconduct. We agree with this approach. In this connection, a useful symmetry may perhaps be drawn with how the legal profession regulates professional misconduct under s 83(2)(b) of the Legal Profession Act (Cap 161, 2001 Rev Ed) (“LPA”).

[35] Pursuant to s 83(2)(b) of the LPA, an advocate and solicitor may be censured if he is guilty of:

This court in Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] 4 SLR 308 (“Ahmad Khalis”) at [77] cited Re Marshall David [1972-1974] SLR 132 at 138, [23] for the observation that “grossly improper conduct in the discharge of his professional duties” means that the conduct of the lawyer is “dishonourable to him as a man and dishonourable in his profession”. More importantly, the spirit of the LPA provision is to ensure that “the conduct of the [advocate and] solicitor concerned meets the high levels of professionalism expected of practising lawyers” (Ahmad Khalis at [80]) and it is “of the first importance that the focus be on the maintenance of the highest standards of professional and ethical conduct” (at [75]).

[36] In the same vein, this approach applies with equal force to the medical profession under the supervision of the SMC. The importance of maintaining the highest level of professionalism and ethical conduct has been duly acknowledged by the SMC in the Introduction section of the SMC Ethical Code (at p 1):

[37] This excerpt pithily highlights the concerns and objectives of the SMC in discharging its regulatory duties in relation to the medical profession. The SMC Ethical Code therefore serves a crucial role in providing an ethical “compass” to guide doctors on what the acceptable standards are from which a departure may constitute professional misconduct. In summary, we accept Kirby P’s suggestion in Pillai ([32] supra) that professional misconduct can be made out in at least two situations: first, where there is an intentional, deliberate departure from standards observed or approved by members of the profession of good repute and competency; and second, where there has been such serious negligence that it objectively portrays an abuse of the privileges which accompany registration as a medical practitioner see McKenzie ([30] supra) at [61]).

[38] Section 46(7) of the Act provides for an avenue of appeal for a medical practitioner aggrieved by the decision of a disciplinary committee of the SMC as follows:

[39] In considering an appeal, a court will be slow to interfere with the findings of the disciplinary committee unless the grounds in s 46(8) of the Act are satisfied. Section 46(8) provides:

[40] It is trite that s 46(8) of the Act mirrors the approach under the common law. This court in Tan Sek Ho ([24] supra) and Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151 has accepted the approach adopted by Lord Hailsham of St Marylebone LC in Julius Libman v General Medical Council [1972] AC 217. Lord Hailsham explained (at 221) that it would be difficult to displace a finding or an order of a disciplinary committee:

[41] More recently, the Privy Council in Ghosh v General Medical Council [2001] 1 WLR 1915 emphasised that whilst great deference would be paid to the views of the disciplinary committee, this must not lead to an effective abdication of the court’s appellate jurisdiction. Lord Millett held (at [34]):

[42] We respectfully endorse the view expressed by Lord Millett. This court will not give undue deference to the views of the disciplinary committee in a way which will effectively render nugatory the appellate powers granted by s 46(7) of the Act. Nevertheless, the courts will also have to heed the salutary reminder given by Lord Phillips of Worth Matravers MR in Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo [2005] 1 WLR 717 (at [78]):

[43] Bearing these considerations in mind, we now review the various grounds of appeal pursued by Dr Low.

[44] Dr Low’s case was that even though Toh Seng had been treated for chronic angle-closure glaucoma at the SNEC, he had diagnosed Toh Seng with acute neovascular glaucoma during the first consultation on 26 June 2002. According to Dr Low, neovascular glaucoma was intractable to medical therapy. Counsel for Dr Low contended that the DC’s usage of the phrase “patients with chronic medical conditions” to describe Toh Seng under the first conclusion (see [11] above) showed how the DC did not appreciate his diagnosis fully.

[45] A review of the relevant documentary evidence led us to reject this myopic assertion. The statement of facts[note: 1] had expressly acknowledged Dr Low’s diagnosis of neovascular glaucoma. The expert report tendered by AP Chew also recognised Dr Low’s diagnosis. The notes of evidence[note: 2] also attested to the fact that the chairman of the DC was very much alive to the diagnosis:

[46] In our view, the context of the first conclusion evidenced that the usage of the phrase “chronic medical conditions” was to signify that Toh Seng had had a ten-year history of being treated at SNEC by Dr Tseng and it was therefore incumbent on Dr Low to seek input from Dr Tseng since no emergency was involved. We therefore did not think that the DC had overlooked the fact that Dr Low had diagnosed Toh Seng to be suffering from neovascular glaucoma. Whether this diagnosis was correct is an altogether different issue.

[47] The crux of the matter before the DC really was whether Dr Low’s treatment, administered just two days after the first consultation, without reference to his previous history, was appropriate for the purpose of reducing the high intraocular pressure for an unsighted eye belonging to a 78-year-old patient who had had a ten-year history with SNEC.

[48] Dr Low asserted that nowhere in the charges or the particulars thereof did the following allegations appear:

(a) that his treatment was inappropriate for an unsighted eye;

(b) that he should have consulted Dr Tseng; and

(c) that he failed to refer Toh Seng to another institution.

[49] In relation to the failure to refer Toh Seng to another institution, the DC made no finding to the effect that Dr Low had failed to refer Toh Seng to another institution. The precise conclusion reached by the DC (see conclusion (c) set out at [11] above) was that Dr Low was wrong to have rejected other forms of therapy because he was not familiar with those other therapies, or because the alternative therapies were not available in his practice. There was thus no need to plead the allegation that Dr Low had failed to refer Toh Seng elsewhere since that was not an element of the conclusion reached.

[50] In relation to the remaining alleged imperfections to the charges, we were satisfied that Dr Low was not in any way “misled or prejudiced by the allegedly faulty charges” (see Ahmad Khalis ([35] supra) at [62] citing Chew Seow Leng v PP [2005] SGCA 11 at [24]).

[51] Dr Low had attempted to justify why he did not obtain Toh Seng’s medical records right from the outset in his letter dated 8 January 2004 to the Complaints Committee. Dr Low wrote:[note: 3]

and subsequently testified that:[note: 4]

[52] In so far as the distinction between a sighted and unsighted eye was concerned, AP Chew’s expert report that was furnished to Dr Low together with the notice of inquiry had drawn this very distinction. The particulars of the first charge also stated that Toh Seng had “no light perception in his right eye”. Dr Low, in the same letter to the Complaints Committee, also stated that Toh Seng was told “there could be relief of the pain [in his eye] either by removal of the blind and painful eye or alternatively in order to preserve cosmesis, to do a glaucoma drainage operation to help release the fluid trapped in the eye”. Accordingly, it cannot be said that any surprise or prejudice was occasioned to Dr Low by the failure to allege that Dr Low’s treatment was inappropriate for an unsighted, as opposed to a sighted, eye.

[53] Further, we were of the view that the allegation that Dr Low had failed to seek input from Dr Tseng quite clearly arose from the contents of the first charge. The relevant portion of the charge reads: “when you knew or ought to have known that it was not the appropriate treatment” [emphasis added] (see [9] above). This must be read together with guideline 4.1.1.1 of the SMC Ethical Code which states:

Put simply, the charge alleged that Dr Low ought to have known that the invasive procedure he recommended was inappropriate in the circumstances because, among other reasons, he ought to have done an adequate assessment of Toh Seng’s medical history. The first charge cannot be challenged on this account.

[54] Turning our focus now to whether this aspect of the charge has indeed been made out, it must be noted that the SMC Ethical Code does not require doctors to unearth the complete medical history of a patient in every conceivable situation. What is mandated is an adequate assessment having regard to all the circumstances of the treatment. Plainly the urgency and/or nature of the treatment will be crucial factors in assessing the amount of delving that may be required. In this connection, the first conclusion reached by the DC under the first charge (see conclusion (a) at [11] above) spoke volumes about what it would consider to be adequate in the present case. To recapitulate, the first conclusion reads:

Put in another way, the DC was of the view that before a doctor recommends invasive therapy to a patient with chronic medical conditions, it is essential to seek input from the patient’s primary doctor in the absence of an emergency.

[55] We have no doubt that this is a sensible application of guideline 4.1.1.1 of the SMC Ethical Code in the present circumstances. Dr Low knew Toh Seng had been receiving medical therapy at SNEC for the glaucoma afflicting his right eye. Toh Seng had come to see him for treatment of that eye, and not for an unrelated ailment. The medical records would be patently relevant to better understand the history, cause, treatment and management of the conditions afflicting Toh Seng’s eye so that a fully-informed, considered opinion could be reached by the doctor before recommending invasive therapy in the absence of an emergency. Further, it was the very first consultation by Toh Seng. After Toh Seng informed him that he had been seeing Dr Tseng at the SNEC for the past ten years, Dr Low made no attempt to investigate Toh Seng’s medical history in this regard. He appeared to have treated the consultation by Toh Seng as simply as would a general practitioner in seeing a patient with a common cold.

[56] It will be recalled that in his letter to the Complaints Committee dated 8 January 2004 (see [51] above), Dr Low did not deny that he made no attempt to seek input from Dr Tseng. In our view, this was a bold attempt to brush aside the need to inquire further on the pretext that he was satisfied of his own unshakeable diagnosis. Unfortunately for him, his subsequent testimony (see [51] above), that he did not need to have full details of how Dr Tseng had treated Toh Seng because neovascular glaucoma was intractable to medical therapy, only served to further underscore his failings in this regard. Dr Low himself had admitted that the aim of the treatment he administered was not to cure neovascular glaucoma, but to reduce intraocular pressure. What he therefore ought to have done was to assess the medical history of Toh Seng to evaluate the suitability of the various methods to reduce intraocular pressure – perhaps Dr Tseng himself had already evaluated the various possible treatment methods. If Dr Low had in fact checked with Dr Tseng, Dr Low would have discovered that just eight days before seeing Dr Low, Toh Seng’s high right intraocular pressure was successfully controlled by medical therapy. The mere fact that neovascular glaucoma is intractable to medical therapy therefore does not completely absolve Dr Low from his ethical duty under guideline 4.1.1.1 of the SMC Ethical Code.

[57] Counsel for Dr Low also attempted to draw a bright line between the angle-closure glaucoma which Dr Tseng was treating Toh Seng for, and the neovascular glaucoma which Dr Low had diagnosed Toh Seng with. He submitted that since both were different conditions, seeking input from Dr Tseng was unnecessary. This argument smacked of a vain attempt to cure a lack of foresight with hindsight: Dr Low would not have known Dr Tseng’s diagnosis of angle-closure glaucoma unless he had consulted Dr Tseng. Indeed, Dr Tseng might well have diagnosed Toh Seng with neovascular glaucoma. To put it bluntly, Dr Low was clearly proceeding blindly and with unjustified haste.

[58] It is of course arguable that Dr Low was seeking to use a relatively permanent method of reducing the intraocular pressure and therefore eschewed medical therapy; the good intentions of Dr Low, if this was true, ought not to be faulted. Nonetheless, what the DC faulted him for under its first conclusion (set out at [54] above) was the process he adopted in recommending the invasive therapy. The DC has now articulated what in its view ought to be the prevailing standard (see [13] above).

[59] To conclude, it was our view that the first charge contained the allegation that Dr Low ought to have known that his treatment was inappropriate in the circumstances outlined above (at [53]–[56]). We were satisfied from the evidence that the DC did not err in its first conclusion under the first charge.

[60] The next ground raised by Dr Low was that expert opinion was elicited from Dr Tseng even though Dr Tseng was called as a witness of fact. It was undisputed that Dr Tseng was called as a witness of fact by the SMC. We note from the notes of evidence that counsel for both parties had sought to elicit expert opinion from Dr Tseng during their respective cross-examinations. Whilst this was far from ideal, we were of the view that no prejudice was occasioned to Dr Low. This can be seen from how counsel for Dr Low even sought to rely on Dr Tseng’s expert opinion in his submissions. Moreover, the DC had relied mainly on the expert report provided by AP Chew. This will be evident from our discussion in the next section.

That the DC failed to recognise that Dr Low’s treatment was appropriate and therefore there was no reason to refer Toh Seng elsewhere

[61] The gravamen of the SMC’s first charge against Dr Low was that the treatment he recommended to Toh Seng was not the appropriate treatment. According to the SMC’s expert witness, AP Chew, the usual approach to a blind eye with neovascular glaucoma with raised intraocular pressure was to ensure that the intraocular pressure was optimally controlled with topical anti-glaucoma medication, failing which non-invasive methods, such as a laser to the ciliary body or laser cyclophotocoagulation, could be used and repeated once or twice where necessary; with a trabeculectomy being the least favoured option. The cheapest effective management was to remove the eye and replace the eye with an artificial cosmetic shell, but AP Chew clarified in his testimony that that was also not a preferred remedy. In giving evidence, he emphasised categorically that a trabeculectomy was not indicated for blind eyes since it was an invasive surgery with risks and without any real benefit to vision.

[62] In his testimony, AP Chew did not mince his words in explaining why he had characterised the treatment performed by Dr Low as being “hasty and aggressive” in his report:[note: 5]

The DC also sought to clarify what Dr Low meant by using the word “aggressive”[note: 6]:

[63] Conversely, Dr Low’s expert witness, Dr Cheah Way Mun (“Dr Cheah”), stated in his report that medical therapy was not effective for neovascular glaucoma and that was evident from how Toh Seng’s intraocular pressure had increased even after receiving medication from Dr Tseng. He stated that the Diamox tablets prescribed by Dr Tseng could only help to lower eye pressure in the short term but could cause damage to the kidneys and liver when taken in the long term. In relation to laser cyclophotocoagulation raised by AP Chew, Dr Cheah stated that that was a new form of treatment in 2002. It was used in the teaching centres at the National University of Singapore and at the SNEC but was not available at the Mount Elizabeth Medical Centre in June 2002. Further, he asserted that the glaucoma drainage surgery of the kind performed by Dr Low had a long track record of safety and efficacy and was common practice in New Zealand, Australia and the UK.

[64] Dr Low further relied on how AP Chew had testified that the complication rate for a trabeculectomy with a Molteno implant was only 2% to 3%. We therefore queried counsel whether there was any data on what the complication rate for a 78-year-old patient like Toh Seng would be but they were unable to assist this court. Interestingly, we noted that the Chairman of the DC had put the same question to AP Chew but AP Chew was unable to provide the relevant information. Bearing in mind that the patient in this case was 78 years old, we therefore did not think it was appropriate for Dr Low to rely on the general figure of 2% to 3% in the present case. He had no statistical studies to support such an assessment of the risk pattern for patients of an advanced age. As a matter of common sense, one would think, given the age of Toh Seng, an invasive procedure would be the very last resort to be employed only after all available alternative treatments were discussed, explored and considered inappropriate. It seems to us that Dr Low proceeded with the procedures with inappropriate haste.

[65] The SMC also called Dr Tseng to prove that when Dr Tseng prescribed medication to Toh Seng on 4 June 2002, Toh Seng’s intraocular pressure dropped to 20mmHg within a day and on 18 June 2002, it was still at that level. Dr Tseng testified that at that time, he saw no need to offer any further treatment since medical therapy had effectively reduced Toh Seng’s intraocular pressure.

[66] In relation to medical therapy, Dr Cheah warned that a long-term use of Diamox could produce severe side effects. AP Chew concurred with him. However, Dr Tseng confirmed in his testimony that 4 June 2002 was the first time Toh Seng was prescribed Diamox. The medical history of Toh Seng was not one where he had been on a regular course of Diamox. This considerably bolstered the SMC’s case that Dr Low ought not to have opted for an invasive procedure without first investigating the medical history of the patient and considering the feasibility of medical therapy.

[67] If medical therapy was ineffective or inappropriate for that particular patient, AP Chew stated that laser cyclophotocoagulation should have been the next treatment of choice. Dr Low, however, asserted that laser cyclophotocoagulation would have been difficult to perform given the presence of blood in Toh Seng’s eye. That would diffuse the power of the laser and obstruct the view of the ciliary body which was to be burnt. Dr Cheah also testified that laser cyclophotocoagulation would not have reduced intraocular pressure in the short run. In this connection, the DC had asked AP Chew whether laser cyclophotocoagulation could have been performed on Toh Seng:[note: 7]

[68] At the end of the day, it must be recognised that the DC, as a body made up of medical professionals, had scrupulously evaluated expert opinion from both parties and it was well entitled to prefer the expert evidence rendered by AP Chew over that of Dr Cheah. In Sakthivel Punithavathi v PP [2007] 2 SLR 983, the court outlined the approach which should be adopted by the courts in dealing with conflicting expert evidence (at [75]):

This approach would likewise apply to tribunals such as the DC in the present case. Dr Cheah’s speciality is in paediatric ophthalmology. He does not specialise in the treatment of glaucoma. He had not performed a single trabeculectomy with a Molteno implant or laser cyclophotocoagulation procedure in his 27 years of practice. On the other hand, AP Chew is the Chief of the Department of Ophthalmology at the National University Hospital, and he is an eminent glaucoma specialist who has published many papers in that field.

[69] Accordingly, there was no reason for us to disturb the DC’s considered preference for the expert opinion given by AP Chew in reaching its second conclusion under the first charge (see conclusion (b) set out at [11] above), viz, that it was not appropriate to reject a proper trial of medication in a patient with a non-functioning organ, especially when an invasive procedure was being considered, and especially when the risk of side-effects of a limited trial was acceptable.

[70] Further, it was made apparent through cross-examination that Dr Low did not have a good working knowledge of laser cyclophotocoagulation as a treatment method and, a fortiori, its effectiveness. That was precisely why he did not offer laser cyclophotocoagulation as a treatment. The following exchange bears this out:[note: 8]

[71] Pertinently, Dr Cheah admitted during cross-examination that laser cyclophotocoagulation had been available since the 1990s:[note: 9]

[72] Since Dr Low was a senior visiting consultant at SNEC at all material times, he ought to have been aware that laser cyclophotocoagulation treatment was available at the SNEC. By reason of the SMC Ethical Code (at pp 3–4) it rightly behoves a doctor to keep abreast of medical knowledge relevant to his practice and ensure that his clinical and technical skills are maintained. It is manifestly insufficient for Dr Low, as a specialist, to simply rely only on treatment methods with which he was familiar. His ignorance about laser cyclophotocoagulation as an available treatment underscored rather vividly his failure to discharge his duty in the best interests of his patient, and indeed, just as importantly, his quite apparent failure to keep abreast of relevant medical developments in his area of specialisation. We found this rather disturbing.

[73] The DC was hence also fully justified in reaching its third conclusion under the first charge (see conclusion (c) set out at [11] above), viz, that it was inappropriate to reject other forms of therapy because Dr Low was not familiar with those therapies, or because the alternative therapies were not available at Dr Low’s clinic. We would add that a doctor’s professional responsibility to keep abreast of medical knowledge is all the more vital as it will assist the doctor to better appreciate the limits of his own competency as mandated by guideline 4.1.1.6 of the SMC Ethical Code. The guideline reads:

The present case provides a classic illustration of how easily a doctor can fall into the false assumption that the management of a particular patient is within his competence when he fails to keep abreast of medical developments relevant to his practice. We are constrained to emphasise that all medical practitioners must uncompromisingly strive to remain updated through continuing education.

[74] For the above reasons, we were satisfied from the evidence that each of the three conclusions reached by the DC under the first charge had been fully made out.

[75] Under the second charge, the DC found on the evidence that Dr Low failed to: (a) inform Toh Seng of other treatment options; and (b) explain the risks, side-effects and nature of the trabeculectomy with a Molteno implant. A doctor’s ethical duty with regards to informed consent is encapsulated in guideline 4.2.2 of the SMC Ethical Code, which reads:

As a related observation, the importance of keeping proper medical records in accordance with guideline 4.1.2 of the SMC Ethical Code will become apparent later in these grounds. Guideline 4.1.2 states:

Bearing this in mind, we analyse seriatim the allegations that Dr Low failed to inform Toh Seng of: (a) alternative treatment options; and (b) the risks, side-effects and nature of the trabeculectomy with a Molteno implant.

[76] In this regard, the SMC relied primarily on the testimony of Mr Toh Tian Hock (“Toh TH”) and Ms Toh Khek Cheng (“Ms Toh”). Toh TH and Ms Toh had accompanied their father, Toh Seng, during his first consultation with Dr Low. Toh TH gave testimony to the effect that no options were offered by Dr Low:[note: 10]

[77] The second witness for the SMC, Ms Toh, admitted that her memory of the events were hazy. However she wrote a contemporaneous e-mail dated 26 June 2002[note: 11] to her siblings after the first consultation with Dr Low. Her e-mail, excerpted below, made no reference whatsoever to any options offered by Dr Low:

The overall impression we gathered from the testimonies of Toh TH and Ms Toh was that during the first consultation, Dr Low had couched the trabeculectomy with a Molteno implant as a safe, simple, straightforward procedure which would get rid of the headaches Toh Seng was suffering from. He did not provide options. Indeed, that was precisely how Dr Low had sought to characterise the procedure under cross-examination.

[78] On the other hand, Dr Low’s defence was canvassed in his letter to the Complaints Committee dated 28 November 2004. He wrote that he had offered four other options: (a) drainage tube surgery; (b) removal of the eye; (c) cyclocryotherapy; and (d) laser therapy (clarified as laser trabeculoplasty). On cross-examination, Dr Low qualified his position by conceding that all these options were mentioned only “generally”, in “rapid discussion”, “not in detail” and “in passing” because he did not believe that any of these options were effective. He further elaborated that: (a) removal of the eye was something he would do only if the eye was unsightly; (b) cyclocryotherapy was a blind procedure because the doctor would not know where exactly the ciliary body was and the procedure would destroy the ciliary body; and (c) laser therapy was generally futile, difficult and dangerous.

[79] When counsel for the SMC asked why he had put forward these options which he did not think were standard treatment options, Dr Low’s answer was starkly telling:[note: 12]

Instead of focusing on offering viable treatment options, Dr Low had to take this farcical position of claiming to have talked about “every possibility under the sun” in an attempt to justify why he said he had offered these options even though he thought that none of the options were workable. This inevitably invited a further assessment of the credibility of his entire testimony.

[80] More critically, his case notes made no mention of any of these options, other than “Opn. Rt relief of pain & headache” (which meant “operation on right eye for relief of pain and headache”) and “KIV: Rt Trabeculectomy/ ± Molteno Implant”.[note: 13] As we will see again later in these grounds, such bare documentation in flagrant breach of guideline 4.1.2 of the SMC Ethical Code exemplified Dr Low’s rather cavalier approach to record keeping. Whilst we were aware that the charge Dr Low faced was not that he had failed to keep proper records, the lack of documentation in his case notes certainly did not assist him in his assertion that he had discussed other treatment options. Having considered all the evidence, we unhesitatingly agreed with the DC that Dr Low had not discussed any options with Toh Seng and/or his family members.

[81] We next turn to the allegation that the risks, side-effects and nature of the trabeculectomy performed on Toh Seng were not fully explained. AP Chew expressed the view that in order to obtain informed consent in the present case, it was incumbent on the doctor to explain the following:

(a) why a trabeculectomy with a Molteno implant was necessary since the tube implant would remain in the patient’s eye for many years;

(b) the risks of extrusion of the tube;

(c) the risks of infection to the tube implant;

(d) the possibility that the tube could be blocked;

(e) that a breakdown of the wound could cause the tube to shift;

(f) that surgery would cause a lot of scarring;

(g) the need for extensive post-operation anti-inflammation medication; and

(h) that anti-glaucoma medication would still be needed.

[82] Toh Seng and Toh TH’s testimonies were that Dr Low proffered none of the above. On the other hand, Dr Low’s entire defence was predicated on the phrase “guarded prognosis” which he wrote in his case notes. During examination-in-chief, Dr Low explained that “guarded prognosis, it is my code word to say that I discuss all the problems with the patient. I know the chance is not good, there [are] some risks, there [are] some benefits, there is some possible complication … Now if it is very good, I won’t write anything about it”.[note: 14]

[83] Subsequently, under cross-examination about the discussion of treatment options, Dr Low asserted he had “put a summary”[note: 15] of the discussions in his case note. When quizzed further on this alleged “summary”, he again relied on the same phrase “guarded prognosis” and said that “Yeah, I’ve written guarded [prognosis], that implies I’ve discussed options available to him”.[note: 16] We saw this as a feeble attempt to impute from the words “guarded prognosis” various imaginative meanings going well beyond anything they could reasonably bear. In the light of how guideline 4.1.2 of the SMC Ethical Code (see [75] above) requires the documentation of, inter alia, treatment options and informed consents, we found the lone phrase “guarded prognosis” to be woefully inadequate. The egregiousness of Dr Low’s conduct in this regard was aptly captured in the DC’s verdict where, before passing sentence on Dr Low, it emphasised the significant weight it placed on a doctor’s ethical duty to obtain informed consent from a patient (at para 22):

[84] Additionally, Dr Low attempted to attack the credibility of the witnesses, by alleging, inter alia, that the focus of Toh TH and Ms Toh was on Toh Seng’s left eye, because the primary reason Toh Seng had consulted him was to restore vision in the left eye. Although the DC had the benefit of witnessing the demeanour of the witnesses, we had nevertheless carefully reviewed the evidence to satisfy ourselves that its findings were properly grounded. We saw no basis on which to differ from the DC’s conclusions on the credibility of the witnesses.

[85] Lastly, Dr Low produced on 12 July 2007 a consent form signed by Toh Seng which attested that “I … have been fully informed of the possible risks of operation or infection”. That consent form was only partially complete – save for his signature, Toh Seng did not fill up his name and National Registration Identity Card number. Counsel for SMC characterised the consent form as one merely of formality and not substance and submitted that even Dr Low had treated the consent form as insignificant since he had failed to produce it when queried by the Complaints Committee on 16 November 2004. Further, a nurse at Dr Low’s clinic, June, had attested to witnessing Toh Seng’s signing of the consent form, but she was not called to give evidence. An adverse inference could be drawn against Dr Low for failing to have done so.

[86] In our view, an analogy with the legal profession is again apposite to elucidate the proper attitude professionals should adopt in applying the relevant professional ethical rules to their daily work. In Law Society of Singapore v Tan Phuay Khiang [2007] 3 SLR 477, this court said (at [100]):

Notwithstanding that the SMC Ethical Code does not enjoy statutory force unlike the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2000 Rev Ed), the SMC is charged under the Act to regulate the conduct and ethics of the medical profession. To this end, the SMC Ethical Code is an embodiment of the ethical values the SMC strives to inculcate in each member of the medical profession, and, in so doing, raise the overall standards of professional practice and conduct. In this connection, it is imperative for doctors to internalise the ethical responsibilities under the SMC Ethical Code and to duly perform them not just in letter, but in accordance with its spirit and intent.

[87] In J K Mason, R A McCall Smith & G T Laurie, Law and Medical Ethics (Butterworths LexisNexis, 6th Ed, 2002), the writers comment (at para 1.36):

We take this opportunity to commend the SMC in sending a strong signal that the ethical duties of a doctor must be adhered to at a level that is commensurate with the high level of trust and esteem that society reposes in the medical profession. The DC has illuminated, through its verdict and observations, a clear vision of the standards it expects from members of the medical profession in order for them to uncompromisingly maintain the highest standards of professionalism and ethical behaviour.

[88] The medical profession is a historically venerated institution. Its hallowed status is founded upon a bedrock of unequivocal trust and a presumption of unremitting professional competence. The basic premise underpinning the doctor and patient relationship is that all medical practitioners will infallibly discharge their duties in the time-honoured and immaculate traditions of this singularly noble profession. Unfortunately, this is not always the reality. Regrettably, and indeed reprehensibly, a few doctors abuse what should be an inviolable relationship when they prescribe unnecessary treatment and/or overcharge. From time to time, professional lapses and incompetence surface. Needless to say, such errant conduct must be painstakingly policed and effectively deterred if the medical profession is to continue to rightfully occupy its unique position in society. All it needs is a few recalcitrant practitioners to diminish the stature and standing of a revered and respected institution. The SMC plays a pivotal role in ensuring it does not. It is heartening that the SMC has shown a determined and uncompromising attitude in this instance to maintain the highest standards so as to protect the public and to preserve the reputation of the profession. We hope that other disciplinary tribunals will be guided by this approach and continue to demand the highest professional standards from their colleagues. We further recommend that the SMC circulates to all its members the verdict of this disciplinary committee. This will assist in further sensitising the medical profession to the very important practical issues that have arisen in these proceedings.

[89] Prior to the conclusion of the hearing, we observed that three years had elapsed between the time Toh Seng first lodged his complaint with the SMC and the time Dr Low was served with a notice of inquiry. To facilitate a better understanding of the events, we requested that the SMC tender a chronology of events leading up to the inquiry. In these grounds, we wish to highlight one point from our review of the chronology tendered by counsel for the SMC: Although they were instructed in May 2005, counsel for the SMC took one entire year to simply review the file and to liaise with the various witnesses. Whilst that did not affect our decision in this case, we must remind counsel that any unjustified delay will not only unnecessarily prolong the anxiety of the doctor being investigated, but may also be detrimental to the witnesses’ recollection of relevant events. The SMC ought to approach the prosecution of disciplinary cases with greater swiftness and vigour. Justice must not only be done but must be seen to be done promptly. Otherwise, the process will itself become the punishment.

[note: 1]At para 6.

[note: 2]At p 462 of Dr Low’s affidavit

[note: 3]See letter exhibited at p 85 of Dr Low’s affidavit.

[note: 4]See transcript exhibited at p 401 of Dr Low’s affidavit.

[note: 5]See transcript exhibited at p 368 of Dr Low’s affidavit.

[note: 6]See transcript exhibited at pp 392–393 of Dr Low’s affidavit.

[note: 7]See transcript exhibited at pp 390–391 of Dr Low’s affidavit.

[note: 8]See transcript exhibited at pp 439, 440–445 of Dr Low’s affidavit.

[note: 9]See transcript exhibited at p 480 of Dr Low’s affidavit.

[note: 10]See transcript exhibited at pp 352–353 of Dr Low’s affidavit.

[note: 11]See exhibit at p 82 of Dr Low’s affidavit.

[note: 12]See transcript exhibited at p 431 of Dr Low’s affidavit.

[note: 13]See exhibit at p 102 of Dr Low’s affidavit.

[note: 14]See transcript exhibited at p 409 of Dr Low’s affidavit.

[note: 15]See transcript exhibited at p 422 of Dr Low’s affidavit.

[note: 16]See transcript exhibited at p 423 of Dr Low’s affidavit.