Ang Pek San Lawrence v Singapore Medical Council

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 05 March 2015
• Neutral Citation: [2015] SGHC 58
• Docket Number: Originating Summons No 1219 of 2013
• Date: 05 March 2015
• Year: 2015
• Published date: 09 March 2015
• Plaintiff Counsel: Lek Siang Pheng, Mar Seow Hwei, Lim Yew Kuan Calvin and Aw Jansen (Rodyk & Davidson LLP)
• Citation: [2015] SGHC 58
• Defendant Counsel: Ho Pei Shien Melanie, Chang Man Phing Jenny and Ng Shu Ping (WongPartnership LLP)
• Court: High Court (Singapore)
• Subject Matter: Principles,Civil Procedure,Costs

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

Originating Summons No 1219 of 2013 was an appeal brought by Dr Ang Pek San Lawrence (“the appellant”) against the decision of a Disciplinary Committee constituted by the Singapore Medical Council (“the respondent”) convicting him of professional misconduct under s 45 of the Medical Registration Act (Cap 174, 2004 Rev Ed) (“the MRA”). In its decision, the Disciplinary Committee also rendered an adverse costs order against the appellant.

On 19 November 2014, we gave judgment in favour of the appellant and allowed the appeal. In allowing the appeal, we set aside the appellant’s conviction and all other orders made by the Disciplinary Committee, including the costs order. Our reasons for allowing the appeal are detailed in Ang Pek San Lawrence v Singapore Medical Council [2015] 1 SLR 436 (“the main judgment”). In the main judgment, we also ordered that the appellant was to have his costs of the appeal as well as of the proceedings before the Disciplinary Committee (which, for ease of reference, we refer to as “the Inquiry”).

The respondent subsequently wrote to us stating that it should not be subjected to an adverse costs order in relation either to the appeal or the Inquiry. It submitted that an adverse costs order cannot, in law, be made against it in relation to the Inquiry because the Disciplinary Committee itself was not permitted to make such an order under the MRA. It further contended that an adverse costs order in relation both to the appeal and the Inquiry should not be made against it because its participation in the appeal and in the Inquiry was necessitated by its fulfilment or carrying out of its public regulatory function.

We invited both parties to tender further written submissions on these matters, which were received in due course. We also asked the parties if they wished to make oral submissions on these issues and both of them indicated that they did not. Having considered further the submissions made by the parties on these issues, we now deliver our judgment in respect of costs.

Background

The background to this judgment on costs has been set out in sufficient detail in the main judgment (at [2]–[30]) and this judgment should be read together with the main judgment. In the circumstances, we only set out here those facts and findings in the main judgment that are of particular importance to this judgment.

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

…

2. The Complaints Committee (CC) has carefully reviewed all the circumstances of the complaint and the Information submitted. 3. The CC noted and accepted the expert opinion from Prof S Arulkumaran … that the poor outcome of the baby’s birth was likely due to intrauterine pneumonia and intrauterine sepsis as suggested by the Apgar scores of 7 at both 1 min and 5 mins and that ruled out intrauterine hypoxia as a cause. The baby passing out light to moderate meconium did not warrant an emergency Caesarean Section (CS). The actions taken by you based on the obstetric clinical observations and the Cardiotocograph (CTG) were appropriate. 4. However, due to some discrepancies in the Newborn Infant record, the CC decided to obtain an Independent medical report to clarify the baby’s actual Apgar score at 1 min and 5 mins. The medical report had confirmed that the Apgar scores were 7 at 1 min and 7 at 5 mins and were consistent with the Thomson Medical Centre’s medical records. The CC felt that the Apgar scores of 7 were satisfactory, and you had delivered the baby in time but it was unfortunate that the baby deteriorated due to intrauterine infection and sepsis and had to be transferred to KKH Neonatal ICU. The CC also considered whether the Apgar scores could have been improved if the CS had been done earlier but no difference would be made if the poor outcome was due to an intrauterine pneumonia and sepsis. 5. The CC noted that you were next door attending to another patient and was [sic] readily contactable, however, the CC felt that the responsibility to call the doctor for review should not lie with the patient. Delivery would also be a stressful time for the mother and she might not have remembered or brought your number with her during the admission. The CC noted that you were eventually called but had thought that the CTG changes were due to maternal pyrexia from the epidural. 6. The CC also considered whether a neonatologist standby was necessary but neonatologist coverage was not routine unless there were indications prior to delivery to warrant so. 7. The CC decided that no formal Inquiry is necessary as there was no evidence of professional misconduct. The CC, however, noted that the actions taken based on the obstetric clinical observations and the CTG were appropriate. …

We make some brief observations on the principal findings of the Complaints Committee in coming to the decision that there was no basis for taking any further action against the appellant: the deterioration of the condition of the baby was due to an intrauterine infection and not because of intrauterine hypoxia, which was ruled out; in all the circumstances, having regard to the cardiotocograph and the indications, the appellant’s actions were appropriate; an earlier intervention by surgical delivery would not have made any difference; and the available indications did not suggest that it was necessary to have a neonatologist to be on standby during the delivery.

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

Four charges were subsequently brought by the respondent against the appellant for the purposes of the Inquiry. At the conclusion of the Inquiry, the Disciplinary Committee acquitted the appellant of all but the fourth charge. In respect of the fourth charge, the Disciplinary Committee ordered that the appellant’s registration as a medical practitioner be suspended for a period of three months. The Disciplinary Committee also ordered the appellant to pay 60% of the costs of the proceedings, including the cost of counsel for the respondent and the legal assessor, and 75% of the disbursements.

The appellant appealed against his conviction, the suspension order and the costs order. We allowed the appeal in full. As seen from the main judgment (at [34]), we concluded that the Disciplinary Committee had made a number of errors in finding the appellant guilty in relation to the fourth charge. Among them, we found that: the Disciplinary Committee had failed to determine the requisite standard of conduct which the appellant should be held to or to consider whether any alleged departure from such a standard by the appellant could be said to be sufficiently serious to amount to professional misconduct; and the Disciplinary Committee had taken into account facts that it should not have considered in convicting the appellant.

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

In light of this, we emphasised in the main judgment (at [40]) the need for the respondent...