Gobinathan Devathasan v Singapore Medical Council

• Jurisdiction: Singapore
• Judgment Date: 10 February 2010
• Date: 10 February 2010
• Docket Number: Originating Summons No 1027 of 2009
• Court: High Court (Singapore)

Gobinathan Devathasan

Plaintiff

and

Singapore Medical Council

Defendant

[2010] SGHC 51

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Originating Summons No 1027 of 2009

High Court

Civil Procedure–Costs–Principles–Unsuccessful prosecution of doctor–Whether Singapore Medical Council to pay costs for proceedings before Disciplinary Committee and appeal before court of three judges

Courts and Jurisdiction–Appeals–Role of appeal court in hearing appeals from disciplinary tribunals–Deference to original findings–Deference not tantamount to undue deference

Evidence–Proof of evidence–Onus of proof–Standard of proof–Whether burden on Singapore Medical Council or defending doctor to establish safety of treatment

Professions–Medical profession and practice–Professional conduct–Neurologist administering allegedly novel treatment–Whether doctor guilty of professional misconduct in administering inappropriate treatment–Section 45 (1) (d) Medical Registration Act (Cap 174, 2004 Rev Ed)

This was an appeal by Dr Gobinathan Devathasan ( Dr Devathasan ) against the decision of a Disciplinary Committee ( the DC ) of the Singapore Medical Council ( the SMC ), which found Dr Devathasan guilty of one charge of professional misconduct under s 45 (1) (d) of the Medical Registration Act (Cap 174, 2004 Rev Ed) ( the Act ). Before the DC, Dr Devathasan faced two charges of professional misconduct. He was acquitted of the first charge ( the First Charge ) which related to his use of Repetitive Transcranial Magnetic Stimulation ( rTMS ) but convicted of the second charge ( the Second Charge ) which related to Dr Devathasan's administration of Therapeutic Ultrasound on Madam Thio Tjoei Ing ( the Patient ). The charge was that Dr Devathasan knew or ought to have known that Therapeutic Ultrasound was inappropriate for the Patient's condition, viz, it was not indicated for the Patient's condition, not generally accepted by the medical profession as a form of clinical treatment or therapy for the same, and the appropriate treatment was medical therapy. Numerous grounds for the appeal were raised. These related, in the main, to the DC having gone beyond the ambit of the charge and having dealt erroneously with certain aspects of the evidence. In the event that his conviction was confirmed, Dr Devathasan sought, in the alternative, to limit the scope of the undertaking the DC had required him to give.

Held, allowing the appeal:

(1) A medical practitioner who was aggrieved by any decision of a Disciplinary Committee might appeal to the High Court against that decision, pursuant to s 46 (7) of the Act. The High Court's jurisdiction in such appeals was appellate in nature and it was fully entitled to substitute its own decision for that of the Disciplinary Committee. However, in considering an appeal, the court would only interfere with the findings of the Disciplinary Committee if those findings were unsafe, unreasonable or contrary to the evidence , pursuant to s 46 (8) of the Act. Be that as it might, the court would not defer to a decision of the Disciplinary Committee if it was not in accordance with law and/or the established facts: at [27] to [29].

(2) The DC went beyond the scope of the Second Charge in convicting Dr Devathasan. Dr Devathasan's alleged misconduct was in respect of his use of Therapeutic Ultrasound on the Patient, not rTMS (which was the subject of the First Charge), or the combined use of rTMS and Therapeutic Ultrasound. There was a possibility that the novel nature of the combined use of rTMS and Therapeutic Ultrasound could have influenced the DC's finding that Therapeutic Ultrasound itself was an inappropriate extension of its current accepted use. The DC also appeared to have glossed over evidence which Dr Devathasan produced to justify the novel manner in which he had used ultrasound on the Patient: at [32] to [34].

(3) The DC also exceeded the scope of the Second Charge in that the charge was specifically tied to Dr Devathasan's treatment of the Patient, but the DC hearing drifted continuously beyond treatment of the Patientusing Therapeutic Ultrasound, to use of Therapeutic Ultrasound as a modality per se without any reference to the Patient. The DC then held that it was for Dr Devathasan to prove that the application of Therapeutic Ultrasound was safe on patientsin general. Had the DC kept to the parameters of the Second Charge, it would not have been improbable for the DC to have concluded that Therapeutic Ultrasound was in fact safe for this Patient, given that it was prepared to accept that the Patient did derive some benefit from Therapeutic Ultrasound and it had not found any evidence that she had suffered any harm from Therapeutic Ultrasound. Further, requiring Dr Devathasan to prove that all patients generally would be better off would impose an impossible burden of proof for him to discharge: at [39].

(4) The scope of the Second Charge was also exceeded in that the charge as framed was not satisfactorily established factually to justify a conviction. The Second Charge concerned the appropriateness of Therapeutic Ultrasound for the Patient only. There was no reference either in the charge or its particulars to any allegation that Therapeutic Ultrasound was unsafe or might cause harm (whether to the Patient herself or to all patients in general). However, the DC convicted Dr Devathasan on the ground of safety. If the SMC had intended to rely on safety considerations to justify the allegation of misconduct, such a serious allegation ought to have expressly formed part of the charge and have been fully particularised. In any case, even if the Second Charge had included the element of safety to the Patient as the basis of an allegation of inappropriate treatment, it would not have been made out. On the evidence, Therapeutic Ultrasound would have had no effect on the Patient, beneficial or otherwise: at [40] and [41].

(5) The DC's conclusion that Therapeutic Ultrasound was neither indicated nor generally accepted by Dr Devathasan's peers because there was no evidence to show that it was safe was problematic. A particular treatment would become generally accepted if there was at least one good study involving a statistically significant sample size, followed by publication, discussions and peer review, and which could then be replicated. There was nothing to indicate that patient safety would be a crucial factor in determining whether a particular treatment was generally accepted by the medical profession. Instead, issues of patient safety appeared to be more relevant to establishing when an off-label use of a treatment (ie, use of a treatment for an indication for which approval had not been obtained) was allowed, and not whether the treatment was indicated and generally accepted for a medical condition to begin with. The DC hence appeared to have conflated two different tests in reaching its conclusion that Therapeutic Ultrasound was not generally accepted by Dr Devathasan's peers: at [46] to [49] and [60].

(6) The DC applied the standard of proof erroneously. Safety of a treatment was not a necessary facet of the inappropriateness of a treatment. Where safety of the patient was an element of the charge, the legal burden would be on the SMC to prove, beyond a reasonable doubt, that the treatment was unsafe for the patient. The defending doctor only had to show that there was a reasonable doubt that the treatment was unsafe for that patient. However, where safety of the patient was not an element of the charge and where the charge was for inappropriate treatment because that treatment was not indicated for that condition and not generally accepted by the profession, then theevidential burden was on the defending doctor to prove that safety of the patient was a reason to negative an assumption of inappropriate treatment on the analogy of off-label treatment. Placing this burden of proof on the defending doctor struck a correct balance between the promotion of innovation and progress on one hand, and the patient's well-being on the other. In the present matter, the DC meandered into the area of safety, without having first been satisfied that Therapeutic Ultrasound was inappropriate, as it could not make up its mind what the gist of the grievance against Dr Devathasan was. It also erred in failing to consider material evidence concerning the safety of Therapeutic Ultrasound for patients in general. Additionally, the DC's finding that the Patient benefitted from the treatments administered to her, and that there was no evidence that any harm had come to the Patient, suggested that the issue of safety was not against Dr Devathasan in so far as the Patient was concerned: at [61] to [65] and [68].

(7) The DC's opinion that Dr Devathasan had overstepped the line or turned a blind eye was contrary to evidence: at [69] and [70].

(8) The SMC was not ordered to pay costs for the proceedings before the DC and the present appeal. Instead, parties were to bear their own costs. The SMC was given the benefit of the doubt that it had acted in good faith and in the public interest in trying to stop what it believed to be an inappropriate treatment for a particular medical condition: at [76].

[Observation: While the DC's decision to convict Dr Devathasan was wrong in law, no finding was made as to whether Therapeutic Ultrasound was efficacious, safe or scientifically established: at [75].

In view of the fact that the proceedings against Dr Devathasan could have been better handled, it was just as well that the Act had been recently amended to allow the appointment of a legally trained person to sit as one of the DC's members. Unlike the external legal assessor who only advised on issues referred to him or her, having a legally trained member as part of the DC would ensure due process and a fuller appreciation of the nature of the proceedings against alleged...