Lim Mey Lee Susan v Singapore Medical Council

• Judgment Date: 28 June 2013
• Date: 28 June 2013
• Docket Number: Originating Summons No 780 of 2012
• Court: High Court (Singapore)

Lim Mey Lee Susan

Plaintiff

and

Singapore Medical Council

Defendant

[2013] SGHC 122

Andrew Phang Boon Leong JA

,

V K Rajah JA

and

Tan Lee Meng J

Originating Summons No 780 of 2012

High Court

Professions—Medical profession and practice—Professional conduct—Disciplinary proceedings—Medical Registration Act (Cap 174, 2004 Rev Ed) —Appeal of doctor against conviction by Disciplinary Committee of 94 charges of professional misconduct by overcharging—Whether doctors bound by ethical obligation to charge fair and reasonable fee for their services—Whether doctors bound by ethical obligation to limit fees when such obligation not published at material time—Whether sufficient evidence making out 94 charges of professional misconduct in the form of overcharging

Professions—Medical profession and practice—Professional conduct—Disciplinary proceedings—Medical Registration Act (Cap 174, 2004 Rev Ed) —Appeal of doctor against conviction by Disciplinary Committee of 11 charges further alleging that doctor falsely represented in invoices that fees charged therein were fees invoiced by third-party doctors when she in fact added significant and undisclosed markup—Whether sufficient evidence making out 11 charges relating to false representations

Professions—Medical profession and practice—Professional conduct—Disciplinary proceedings—Medical Registration Act (Cap 174, 2004 Rev Ed) —Sanction—Doctor suspended from practice for period of three years by Disciplinary Committee—Whether to interfere with sanction imposed by Disciplinary Committee

The appellant (‘the Appellant’), a registered medical practitioner, was convicted by a Disciplinary Committee (‘the DC’) appointed by the respondent (‘the Respondent’), the Singapore Medical Council, of 94 charges of professional misconduct under s 45 (1) (d) of the Medical Registration Act (Cap 174, 2004 Rev Ed) (‘the Medical Registration Act’). The charges were brought following a complaint by the Ministry of Health of Brunei (‘MOHB’) to the Ministry of Health of Singapore (‘MOHS’) regarding the Appellant's fees which the MOHB found to be excessive. The DC convicted the Appellant of all 94 charges, which related, in the main, to fees of approximately $24 m which the Appellant invoiced for services which she (and other doctors) provided to Pengiran Anak Hajah Damit Pg Pemancha Pg Anak Mohd Alam (‘the Patient’), a member of the royal family of Brunei, over 110 treatment days from January to June 2007. In convicting the Appellant, the DC ordered that the Appellant be suspended from practice for a period of three years, pay a financial penalty of $10,000 and be censured in writing. It further ordered the Appellant to undertake, on her return to practice, not to charge her patients more than a fair and reasonable fee for her services. The DC also ordered the Appellant to pay the costs of the disciplinary proceedings.

The Appellant appealed against the DC's finding of guilt in respect of 83 charges (‘the Category I charges’) alleging that she had invoiced the Patient medical fees that were far in excess of and disproportionate to the services rendered by the Appellant and her medical team. The Appellant also appealed against the DC's finding of guilt in respect of a further 11 charges (‘the Category II charges’) alleging that she had invoiced the Patient medical fees that were far in excess of and disproportionate to the services rendered and that she had falsely represented that such fees had been invoiced by and/or would be payable to certain named doctors, when she knew or ought to have known that such a representation was not true in so far as she had added a significant and undisclosed markup to the actual fees charged by those doctors. The Appellant also appealed against the sanction imposed by the DC.

Held, dismissing the appeal:

(1) The most important and fundamental issue in the context of the present proceedings was whether there existed an ethical obligation on the part of all doctors who practised medicine in Singapore - over and above contractual and market forces (for example, any existing agreement on fees between the doctor concerned and his or her patient) - to charge a fair and reasonable fee for their services: at [26] and [28].

(2) This issue had to be considered in the context of the practice of medicine as a profession.The main characteristics of a profession included the special professional knowledge and ability of a professional as well as the commitment by the professional concerned to conduct himself or herself in the spirit of truth and honesty - a commitment which was necessarily ethical in nature: at [35].

(3) In the context of the medical profession, every doctor in Singapore took an oath in the form of the Singapore Medical Council Physician's Pledge upon being admitted as a fully registered medical practitioner. This pledge embodied, inter alia, a calling that sought to be helpful to others in an important way and went beyond mere money-making and the advancement of self-serving interests. The proposition that the spirit of public service and the existence of ethical obligations underpinned all professional practice applied with arguably greater force to medical practitioners, whom we collectively entrusted with our health, our well-being and our lives. In this respect, the medical profession occupied a unique societal position of both great privilege and commensurate responsibility: at [39] to [42].

(4) The relationship between a doctor and his or her patient was founded on trust and confidence which had to be safeguarded to the fullest extent possible, given the particular vulnerability of those who sought out medical services and the high stakes involved in many medical decisions. The especial vulnerability of patients and their dependence on health care professionals were heightened by the reality that information was (in the nature of things) distributed unequally in the medical setting, with a doctor invariably possessing far more information than his or her patient regarding the medical options and services available, where they might be found and how they should be priced. Put simply, given a doctor's specialised knowledge and training (and his or her corresponding duty to utilise these skills with conscience and dignity in the patient's best interests), there arose an ethical obligation on the part of a doctor not to take advantage of his or her patient (whether monetarily or otherwise), which obligation operated over and above contractual and market forces. In the circumstances, excessive overcharging would be a breach of this ethical obligation. There was therefore an objective ethical limit on medical fees in both private and public health care that operated outside contractual and market forces. The corollary of this would be that overcharging would constitute an abuse of the trust and confidence placed by a patient in his or her doctor, and this would (in turn) constitute professional misconduct: at [44] and [52].

(5) What constituted a fair and reasonable fee for services rendered would depend not only on the relevant facts, but also on the views of experts in the particular field of practice concerned. Even given differences in factors such as the seniority and expertise of the doctor concerned as well as the location of his or her clinic, it had to at the very least be possible for the experts concerned to opine on the possible range of fees which would be considered fair and reasonable in a particular set of circumstances: at [53] and [72].

(6) A doctor's ethical obligation to charge a fair and reasonable fee for services rendered was not superseded by a valid agreement between the doctor and his or her patient. Unlike the present approach in the law of contract, in the context of disciplinary proceedings against a medical practitioner, ethical obligations were not only procedural but also substantive in nature, and it was therefore entirely permissible (and indeed appropriate) for the court or the relevant disciplinary body to examine the substantive fairness and reasonableness of the terms of an agreement between a doctor and his or her patient (here, of the fees invoiced). In any event, there was no fee agreement between the Appellant and the Patient on the facts: at [57] to [60] and [64].

(7) A doctor's ethical obligation to charge a fair and reasonable fee for services rendered was an inherent one which relevant express statutory provisions or regulations (should such be promulgated in future) merely restate in explicit terms. It therefore followed that the Appellant was bound by that obligation even though it had not been published at the material time. The Appellant's arguments to the contrary were not supported by the relevant legal material. For example, professional misconduct, by its very nature, could take a myriad of forms - of which overcharging is one. Moreover, the Singapore Medical Council Ethical Code and Ethical Guidelines contained relevant provisions which, on their terms, supported the existence of such an ethical obligation to charge a fair and reasonable fee for services rendered. Finally, the ethical rule was not only one rooted in logic, common sense, justice and fairness, but was also one that would not be enforced unreasonably: at [65], [67], [68] and [70].

(8) On the facts, there was clearly sufficient evidence making out all the 94 charges against the Appellant of professional misconduct in the form of overcharging. In particular, the DC examined all the charges and arrived at the correct decision in convicting the Appellant of every charge. It was clear (having regard, inter alia, to the relevant expert evidence) that the fees charged by the Appellant were, on any objective view, grossly excessive and unreasonable. This was especially clear having regard to the relevant context, namely, that the Appellant was providing palliative (as opposed to surgical) services...