Lim Mey Lee Susan v Singapore Medical Council

• Jurisdiction: Singapore
• Judgment Date: 26 May 2011
• Date: 26 May 2011
• Docket Number: Originating Summons No 1252 of 2010
• Court: High Court (Singapore)

Lim Mey Lee Susan

Plaintiff

and

Singapore Medical Council

Defendant

[2011] SGHC 133

Philip Pillai J

Originating Summons No 1252 of 2010

High Court

Administrative Law—Judicial review—Ambit—Disciplinary committee recusing itself—Medical Council revoking appointment of disciplinary committee—Medical Council appointing new disciplinary committee to hear and investigate same complaint—Medical Council arguing that decision not susceptible to judicial review because Medical Council did not have any discretion—Whether administrative decision susceptible to judicial review even if there was no exercising of discretion

Administrative Law—Judicial review—Disciplinary committee recusing itself—Medical Council revoking appointment of disciplinary committee—Medical Council appointing new disciplinary committee to hear and investigate same complaint—Doctor alleging referring complaint to new disciplinary committee unfair due to delays in hearing and investigating complaint—Doctor arguing defence known to Prosecution—Doctor arguing that would have to bear costs of resumed disciplinary committee hearing—Whether prohibiting order should be granted due to unfairness prejudice and oppression

Administrative Law—Judicial review—Illegality—Disciplinary committee recusing itself—Medical Council revoking appointment of disciplinary committee—Medical Council appointing new disciplinary committee to hear and investigate same complaint—Medical Council appointing disciplinary committee pursuant to e-mail—Whether Medical Council empowered to make decisions pursuant to e-mails—Section 12 (5) Medical Registration Act (Cap 174, 2004 Rev Ed)

Administrative Law—Judicial review—Illegality—Disciplinary committee recusing itself—Medical Council revoking appointment of disciplinary committee—Medical Council appointing new disciplinary committee to hear and investigate same complaint—Medical Council having vacancies in membership at time of making of decision to appoint disciplinary committee—Whether Medical Council empowered to make decisions notwithstanding vacancies in membership—Section 33 Interpretation Act (Cap 1, 2002 Rev Ed)

Administrative Law—Judicial review—Illegality—Disciplinary committee recusing itself—Medical Council revoking appointment of disciplinary committee—Medical Council appointing new disciplinary committee to hear and investigate same complaint—Whether Medical Council empowered to directly appoint new disciplinary committee—Sections 41 (3) and 42 (5) Medical Registration Act (Cap 174, 2004 Rev Ed)

Administrative Law—Judicial review—Illegality—Disciplinary committee recusing itself—Medical Council revoking appointment of disciplinary committee—Medical Council appointing new disciplinary committee to hear and investigate same complaint—Whether statutory requirement to immediately appoint disciplinary committee after complaints committee order was directory or mandatory—Section 41 (3) Medical Registration Act (Cap 174, 2004 Rev Ed)

Administrative Law—Judicial review—Irrationality—Disciplinary committee recusing itself—Medical Council revoking appointment of disciplinary committee—Medical Council appointing new disciplinary committee to hear and investigate same complaint—Doctor alleging that no rule regulating quantum of fees that doctor might charge patient—Whether Medical Council decision to refer complaint to new disciplinary committee was Wednesbury irrational

Administrative Law—Judicial review—Subsidiary legislation governing disciplinary proceedings amended—Doctor alleging that amendment regulations contrary to natural justice—Attorney-General's counsel conceding that amendment regulations not applicable to doctor—Doctor alleging that amendment regulations targeted at her—Whether application for declaration was hypothetical—Whether amendment regulations were targeted at doctor—Regulation 42 Medical Registration Regulations (Cap 174, Rg 1, 2000 Rev Ed) as amended by Medical Registration (Amendment) Regulations (S 528/2010) —Section 16 (1) (c) Interpretation Act (Cap 1, 2002 Rev Ed) —Regulation 71 (c) Medical Registration Regulations 2010 (S 733/2010)

Administrative Law—Natural justice—Fair hearing—Disciplinary committee recusing itself—Medical Council revoking appointment of disciplinary committee—Medical Council appointing new disciplinary committee to hear and investigate same complaint—Director of Medical Services having multiple roles—First disciplinary committee members member of Medical Council—Expert witness in first disciplinary committee hearings member of Medical Council—First disciplinary committee members including public sector doctors—Medical Council not inquiring into recusal before appointing new disciplinary committee—Medical Council in-house counsel present in private hearing room of first disciplinary committee—Medical Council in-house counsel making remarks to Medical Council member—Medical Council e-mail to revoke first disciplinary committee appointment brief and characterising recusal as procedural—Whether there was a reasonable apprehension of bias

Administrative Law—Natural justice—Fair hearing—Disciplinary committee recusing itself—Medical Council revoking appointment of disciplinary committee—Medical Council appointing new disciplinary committee to hear and investigate same complaint—Doctor inferring actual bias from totality of circumstances—Whether Medical Council decision to appoint disciplinary committee tainted with actual bias

An official of the Ministry of Health, Singapore (‘MOHS’) filed a complaint (‘the Complaint’) against the Applicant, a medical doctor, with the Singapore Medical Council (‘SMC’) . A complaints committee (‘the Complaints Committee’) reviewed the Complaint and ordered that a formal inquiry should be held by a disciplinary committee (‘the 1 st DC’) . The 1 st DC commenced its hearings. On 29 July 2007, the 1 st DC had a hearing on the Applicant's submission of no case to answer. It appeared from the transcript of that hearing that the Applicant's counsel had applied to the 1 st DC for it to recuse itself. After some discussion, the 1 st DC decided to recuse itself.

On 3 September 2010, an official from the SMC sent an e-mail to all SMC members (‘the 3 September 2010 E-mail’) . The 3 September 2010 E-mail explained that the 1 st DC had recused itself and that it was necessary for the SMC to revoke the appointment of the 1 st DC and appoint a new disciplinary committee (‘the 2 nd DC’) . The 3 September 2010 E-mail concluded that the SMC members would be taken as having no objections if they were not heard from by 7 September 2010. No objections were raised by the due date and the SMC thus decided on 7 September 2010 to revoke the appointment of the 1 st DC.

On 13 September 2010, the SMC sent another e-mail to all SMC members (‘the 13 September 2010 E-mail’) on the proposed composition of the 2 nd DC. The 13 September 2010 E-mail provided the composition of the 2 nd DC and concluded that the SMC members would be assumed to have no objections if they were not heard from by 14 September 2010. No objections were raised by the due date and the SMC thus appointed the 2 nd DC on 14 September 2010.

The Applicant then applied to Court for the following judicial review remedies:

1. (i) a quashing order against the SMC's decision to appoint the 2 nd DC;

2. (ii) a prohibiting order to prohibit the SMC from taking steps to bring disciplinary proceedings against the Applicant on the same subject matter covered in the charges set out in the notice of inquiry issued by the 1 st DC; and

3. (iii) a declaration to declare that the Medical Registration (Amendment) Regulations 2010 (S 528/2010) (‘the S 528/2010 Amendment Regulations’) were void.

Held, dismissing the application:

(1) This hearing raised many important issues relating to the professional and ethical standards of the private sector medical profession. However, these issues were not to be determined by the court as Parliament had placed the responsibility on the medical profession itself. The SMC was to establish the appropriate standards of conduct and ethics. The Complaints Committees and Disciplinary Committees were to investigate, find and sanction breaches: at [4] and [5].

(2) The merits of the SMC's decision to refer the Complaint to a 2 nd DC were not before the court, save to the limited extent of an appeal to a court of three judges as provided in the MRA. The court in judicial review proceedings was to only determine the legality of the process leading to the SMC's decision to refer the Complaint to the 2 nd DC: at [6].

(3) Judicial review proceedings succeeded or failed entirely on the record. No evidence apart from the record was adduced in court save as a court might exceptionally permit in an appropriate case: at [7].

(4) The law relating to judicial review of administrative decisions was expressed in two overarching core common law principles. First, no legal power was beyond the reach of the supervisory jurisdiction of the court if it was exercised beyond its legal limits. Second, administrative decisions were subject to the procedural fairness or natural justice rule which comprised the rule against bias and the fair hearing rule: at [15].

(5) Administrative decisions were susceptible to judicial review for legality and for fairness, whether or not they involved a discretion. As for fairness, the content of the duty to act fairly would vary depending on the nature and statutory context of the relevant decision: at [24] and [25].

(6) The SMC's decision to appoint the 2 nd DC was not illegal under the MRA:

1. (a) The SMC's decision to appoint the 2 nd DC was made on the 13 September 2010 E-mail. Although this e-mail was silent on the statutory basis of the appointment of the 2 nd DC, the appointment must have necessarily been founded on s 41 (3) of the Medical Registration Act (Cap 174, 2004 Rev Ed) (‘the MRA’) , which was the only relevant provision...