Biomedical Law and Ethics

• Published date: 01 December 2015
• Date: 01 December 2015
• Author: Prem Raj PRABAKARAN BEng (Mechanical) (Hons) (National University of Singapore), LLB (Hons) (National University of Singapore), BCL (Oxon); Deputy Senior State Counsel, Deputy Public Prosecutor, Teaching and Research Fellow, Attorney-General's Chambers. [The views expressed in this article are those of the author. They do not represent the views of the Attorney-General's Chambers.]

Introduction

6.1 The year under review saw three significant decisions. In Ang Pek San Lawrence v Singapore Medical Council[2015] 2 SLR 1179 (‘Lawrence Ang (Costs)’), the Court of Three Judges explained its earlier decision in Ang Pek San Lawrence v Singapore Medical Council[2015] 1 SLR 436 (‘Lawrence Ang (Acquittal)’) to order costs – for the very first time – against the Singapore Medical Council (the ‘SMC’). The decision in Uwe Klima v Singapore Medical Council[2015] 3 SLR 854 (‘Uwe Klima’) underscored the need for the SMC to have a proper (or dominant) case theory in disciplinary proceedings. The lack of such a theory affected, in turn, two important procedural and evidential aspects of the proceedings: the charges were not properly drafted and insufficient evidence was adduced to prove these charges beyond a reasonable doubt. In Singapore Medical Council v Kwan Kah Yee[2015] 5 SLR 201 (‘Kwan Kah Yee’), the court laid down a number of sentencing principles/considerations that apply: (a) generally, to appeals against sentences imposed on medical practitioners in disciplinary proceedings; and (b) specifically, to cases involving medical practitioners who issue false death certifications.

Adverse costs order made against the Singapore Medical Council

6.2 Lawrence Ang (Acquittal) was reviewed last year (see (2014) 15 SAL Ann Rev 97 at 97–98, paras 6.2–6.6). There, a complaint was filed by a patient against one Dr Ang relating to his management of her labour and the delivery of her child. Pursuant to s 40 of the Medical Registration Act (Cap 174, 2004 Rev Ed) (the ‘MRA 2004’), the SMC constituted a Complaints Committee (the ‘CC’) to inquire into the complaint. After reviewing various materials (including contemporaneous medical records, an expert opinion, an independent medical report, and written submissions), the CC concluded that no formal inquiry was required as there was no professional misconduct. The CC therefore dismissed the complaint. The CC also furnished Dr Ang its reasons for doing so, stating, inter alia, that his actions were appropriate (Lawrence Ang (Costs) at [6]–[7]). Dissatisfied with the decision of the CC, the patient appealed to the Minister for Health (the ‘Minister’) pursuant to s 41(7) of the MRA 2004. The Minister acceded to the appeal, and a Disciplinary Committee (the ‘DC’) was constituted by the SMC. ‘[N]o explanation or reasons were given [by the Minister] for acceding to the appeal and for directing the continuation of the proceedings against the complaint despite the complaint having been considered and dismissed by the [CC]’ (Lawrence Ang (Costs) at [8]).

6.3 The DC subsequently convicted Dr Ang of professional misconduct under s 45 of the MRA 2004. This was for failing to ensure that a neonatologist would be present at or placed on standby for the delivery of the patient's baby despite certain clinical indicators which, in the DC's view, suggested this need. The DC also made an adverse costs order against Dr Ang – ordering him to pay 60% of the costs of the proceedings (including the costs of the SMC's counsel and the legal assessor) and 75% of the disbursements (Lawrence Ang (Costs) at [9]).

6.4 Allowing Dr Ang's appeal, the court set aside Dr Ang's conviction and all other orders made by the DC. This included the costs order. The court also ordered that Dr Ang was to have his costs and disbursements of the appeal and the proceedings before the DC (the ‘Inquiry’).

6.5 The SMC then wrote to the court and challenged the adverse costs order on the following bases (Lawrence Ang (Costs) at [3]):

(a) that such an order could not, in law, be made against it in relation to the Inquiry because the DC itself was not permitted to make such an order under the MRA 2004; and

(b) that such an order in relation to the Inquiry and appeal should not be made against it because its participation in the Inquiry and the appeal was necessitated by its fulfilment or carrying out of its public regulatory function.

6.6 The SMC did not dispute that the court could, in law, make an adverse costs order against it in relation to the appeal (cf above, para 6.4; Lawrence Ang (Costs) at [37]).

6.7 The three main issues identified by the court in Lawrence Ang (Costs) (at [15]) may be illustrated as follows:

First Issue: Can costs of the Inquiry and/or appeal be ordered against the Singapore Medical Council

6.8 The court considered the First Issue in three stages, and asked whether:

(a) the DC could order costs of the Inquiry against the SMC;

(b) the High Court could order costs of the Inquiry against the SMC; and

(c) the High Court could order costs of the appeal against the SMC.

6.9 These three sub-issues (above, para 6.8) stemmed from the argument by the SMC that the power of the High Court to order costs against the SMC was subject to the provisions of the MRA 2004. Relying on s 45 of the MRA 2004, the SMC had argued that the MRA 2004 expressly permitted the DC to only order costs against the medical practitioner upon a conviction. The MRA 2004 did not empower the DC to order costs against the SMC under any circumstances. Extrapolating from this, the SMC contended that if the DC has no power to order costs against the SMC, then neither does the High Court hearing an appeal from the DC (Lawrence Ang (Costs) at [17]).

Disciplinary Committee can order costs of the Inquiry against the Singapore Medical Council if charges it brings are dismissed

6.10 Section 45(1) of the MRA 2004 provides that a DC may exercise one or more of the powers referred to in s 45(2) where a registered medical practitioner is found or judged by a DC to have been guilty, inter alia, of professional misconduct. Section 45(2) of the MRA 2004 then sets out these powers.

6.11 Section 45(4) of the MRA 2004 then states that the DC may ‘under subsection (2) order the registered medical practitioner concerned to pay to the Medical Council such sums as it thinks fit in respect of costs and expenses of and incidental to any proceedings before the Disciplinary Committee and, where applicable, an Interim Orders Committee’–ie, the MRA 2004 expressly permitted the DC to order costs against the medical practitioner upon a conviction.

6.12 Against this backdrop, the court accepted, as correct, the following two propositions advanced by the SMC:

(a) While the MRA 2004 specifically empowers the DC to order costs against the medical practitioner (above, para 6.11), it is silent as to the costs orders the DC may make if it acquits the medical practitioner. Section 46(16) of the MRA 2004, the only provision dealing with the case where there is an acquittal, simply provides that the DC ‘shall dismiss the complaint or matter’ where a medical practitioner is not found or judged by it to have been convicted or guilty of any matter referred to in s 45(1) (Lawrence Ang (Costs) at [19]).

(b) That a DC can only order costs against a medical practitioner in the event of a conviction as provided for in s 45(2) of the MRA 2004 (Lawrence Ang (Costs) at [20]).

6.13 However, the court disagreed with the SMC which argued that a DC cannot order costs against any party in the event of an acquittal as the MRA 2004 is silent on this (Lawrence Ang (Costs) at [20]). The court held that a DC has an implied ancillary power under the MRA 2004 to order costs against the SMC if the DC dismisses the charges brought by the SMC (Lawrence Ang (Costs) at [30]). The court reasoned as follows:

(a) Section 45(1) of the MRA 2004 limits the powers exercisable by a DC against a medical practitioner in two ways (Lawrence Ang (Costs) at [21]). First, the DC can only exercise the powers contained in s 45(2) (and, by extension, s 45(4)) upon a finding of guilt against a medical practitioner. The DC therefore cannot, without such a finding of guilt, make an adverse costs order against a medical practitioner on account of, for instance, the manner in which the defence has been conducted even if this may have prolonged the proceedings unnecessarily. Second, upon a finding of guilt, the only powers exercisable by the DC are those listed in s 45(2). However, there is no similar constraint or prohibition in the MRA 2004 in relation to the making of other costs orders (Lawrence Ang (Costs) at [23]).

(b) Unlike the limits placed on the powers exercisable by a DC against a medical practitioner upon a finding of guilt (above, para 6.13(a)), no such express limits are placed in relation to the powers exercisable by a DC upon an acquittal.

(c) An adjudicative body such as the DC will have a number of implied ancillary powers, save to the extent where these are expressly limited or extended (Lawrence Ang (Costs) at [22]). The power to decide on matters relating to costs is an important ancillary power that would fairly and ordinarily be regarded as incidental to the power to conduct and determine an adjudicatory process (Lawrence Ang (Costs) at [23]).

(d) Although the SMC was exercising a public statutory function, it could not be that Parliament intended to allow such quasi-prosecutorial bodies to act with absolute immunity from adverse costs when even the Public Prosecutor – who exercises a public constitutional function – does not enjoy such absolute immunity (Lawrence Ang (Costs) at [24]–[25]).

(e) The power to order costs is an important salutary power for courts and tribunals, as it is a safeguard against unnecessary financial prejudice being inflicted on a party to the proceedings by the prosecution of unwarranted litigation. It is a power that should be exercised to discourage behaviour that impedes the administration of justice. Here, the Inquiry before the DC had proceeded although the CC had found that Dr Ang's conduct did not cross even a preliminary threshold of misconduct. The Inquiry had proceeded with the Minister giving no reasons for acceding to the patient's appeal despite the conclusions of the CC, and it was ‘not evident why or...