Lim Mey Lee Susan v Singapore Medical Council

• Jurisdiction: Singapore
• Judgment Date: 30 November 2011
• Date: 30 November 2011
• Docket Number: Civil Appeal No 80 of 2011
• Court: Court of Appeal (Singapore)

Lim Mey Lee Susan

Plaintiff

and

Singapore Medical Council

Defendant

[2011] SGCA 66

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

VKRajah JA

Civil Appeal No 80 of 2011

Court of Appeal

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 referral of complaint to new disciplinary committee unfair due to delays in hearing and investigating complaint

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 revoking appointment of earlier disciplinary committee and appointing new disciplinary committee via e-mail—Whether Medical Council empowered to make decisions via e-mail—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—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—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 doctors might charge patients—Whether decision of Medical Council to refer complaint to new disciplinary committee irrational

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 decision of Medical Council to appoint disciplinary committee tainted with bias

This appeal arose from a complaint dated 27 August 2007 (‘the Complaint’) made by the Permanent Secretary of the Ministry of Health, Brunei (‘MOHB’) to the Permanent Secretary of the Ministry of Health, Singapore (‘MOHS’) about the ‘unacceptable and extremely high’ fees charged by the appellant doctor (‘the Appellant’) for treating a member of the Bruneian royal family(‘the Patient’). Upon receipt of the Complaint, MOHS conducted a preliminary investigation, and thereafter referred the matter to the chairman of the Complaints Panel (‘the CP’) of the respondent, the Singapore Medical Council (‘the SMC’). The chairman of the CP in turn laid the Complaint before a Complaints Committee (‘the CC’). The CC subsequently made an order on 17 November 2008 that a formal inquiry into the Complaint be held by a Disciplinary Committee (‘the CC's Order’). Accordingly, the SMC appointed a Disciplinary Committee (‘the First DC’) for this purpose.

Before the First DC, 94 disciplinary charges were brought against the Appellant for overcharging the Patient and for making false representations in invoices rendered to the Patient. The proceedings before the First DC were aborted midway in July 2010 when the First DC recused itself following the Appellant's contention that it had prejudged her submission of no case to answer. By way of two e-mails dated 3 September 2010 and 13 September 2010 respectively (‘the Two E-mails’), which were sent to all members of the SMC (‘the SMC members’), the SMC sought the SMC members' approval to: (a)revoke the appointment of the First DC, and (b)appoint a new Disciplinary Committee (‘the Second DC’) to continue the disciplinary proceedings against the Appellant. Both e-mails stated that the SMC members would be deemed to have agreed to the SMC's proposed measures if they did not respond by the stipulated deadline. On 16 September 2010, the SMC informed the Appellant that the Second DC had been appointed.

The Appellant applied to the High Court for leave to apply for: (a)a quashing order to quash the SMC's decision to appoint the Second DC, and (b)aprohibiting order to prohibit the SMC from taking any steps to bring further disciplinary proceedings against her with respect to the aforesaid 94 disciplinary charges. The High Court dismissed the Appellant's application, whereupon the Appellant brought the present appeal.

Held, dismissing the appeal:

(1) The First DC's recusal did not automatically discharge the CC's Order. That order remained in force under the Medical Registration Act (Cap 174, 2004 Rev Ed) (‘the MRA’) and had to be acted upon by the SMC. Consequently, the SMC had a statutory duty to take steps to complete the disciplinary proceedings against the Appellant by appointing a new Disciplinary Committee (viz, the Second DC) to continue those proceedings: at [24] and [25].

(2) Although the SMC had a statutory duty to appoint a new Disciplinary Committee after the First DC recused itself, it had to discharge that duty in accordance with the law. Procedurally, this meant that the SMC had to secure the approval of at least a majority of the SMC members to the revocation of the First DC's appointment and the appointment of the Second DC. How such approval was to be obtained was entirely a matter for the SMC to decide. The sending of the Two E-mails was thus a proper way for the SMC to obtain the requisite approval: at [29].

(3) The only material point in connection with the Appellant's submissions on the Two E-mails was whether the SMC members received them. The evidence showed that the SMC members did receive those e-mails. Hence, their omission to respond by the deadline stipulated in each e-mail was sufficient in law to constitute their assent to - and, thus, a valid decision on - the revocation of the First DC's appointment and the appointment of the Second DC: at [32] and [33].

(4) There was no merit in the Appellant's argument that the immediacy requirement in s 41 (3) of the MRA was not satisfied vis-à-vis the appointment of the Second DC. The SMC had complied with this requirement when it appointed the First DC, and this sufficed for the purposes of s 41 (3) since the Second DC was appointed for the sole purpose of continuing the disciplinary proceedings which the First DC had left uncompleted. In any case, s 41 (3) was no more than a direction to the SMC to carry out its duties expeditiously. Parliament could not have intended that an untimely appointment of a Disciplinary Committee to hear a complaint against a registered medical practitioner would render the appointment null and void: at [38] and [40].

(5) The appointment of the Second DC was not tainted with bias on the SMC's part. Contrary to what the Appellant alleged, the Director of Medical Services at the material time, who was involved in both MOHS's preliminary investigation into the Complaint and the subsequent appointment of the Second DC, did not instigate the Permanent Secretary of MOHB to lodge the Complaint against the Appellant and also did not divert MOHB's complaint about the Appellant's fees away from civil resolution of the dispute to resolution by the disciplinary process. The other elements of apparent bias alleged by the Appellant were concerned more with her perception of certain irregularities which occurred during the proceedings before the First DC, and did not support her allegation that the SMC had created an unfair disciplinary process in her case: at [43] and [44].

(6) The Appellant's argument that it was irrational (within the meaning laid down in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223) of the SMC to bring charges of overcharging against her when there was prima facie evidence that she had a fee agreement with the Patient was a premature argument. Whether there was indeed such a fee agreement was an issue of fact for the Second DC to decide. Similarly, whether or not there was any overcharging by the Appellant and, if so, whether it amounted to professional misconduct were matters to be resolved by the Second DC. The court's role in the present proceedings was limited to deciding whether, as a matter of law, the SMC had the power to appoint the Second DC to continue the disciplinary proceedings against the Appellant and, if so, whether the SMC exercised that power in accordance with the law: at [54].

[Observation: The dichotomy between the mandatory effect and the direct effect of words (used in statutory provisions) which are ex facie mandatory (eg, the word ‘shall’) should be abandoned in favour of the practical approach of determining Parliament's intention in each case so as to ascertain whether a failure to comply with a ‘shall’ requirement would result in a nullity: at [39].

The SMC was not responsible for establishing the statutory framework for disciplinary proceedings against registered medical practitioners. That framework had instead been established by Parliament via ss 38-43 of the MRA. The SMC's duties under those provisions were all ‘ministerial’ or administrative in nature. The SMC had no discretion once it received a complaint against a registered medical practitioner, and, thus, no issue of bias could arise with respect to the SMC discharging its statutory duties: at [46].

The decision in Law Society of Singapore v Andre Ravindran Saravanapavan Arul [2011] SGHC 224 did not entail that overcharging for professional services should, in law, be viewed as a commercial dispute and not as a matter of professional ethics. Whether or not overcharging in a particular profession crossed the threshold of acceptable professional conduct into the realm of punishable...