Lim Mey Lee Susan v Singapore Medical Council

• Jurisdiction: Singapore
• Judge: Philip Pillai J
• Judgment Date: 26 May 2011
• Neutral Citation: [2011] SGHC 133
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 1252 of 2010
• Published date: 30 May 2011
• Year: 2011
• Hearing Date: 28 February 2011,14 February 2011,15 February 2011,23 February 2011,22 February 2011,21 February 2011,28 March 2011,01 March 2011
• Plaintiff Counsel: Lee Eng Beng SC, Tammy Low, Christine Huang and Elizabeth Wu (Rajah & Tann LLP) and Bernice Loo (Allen & Gledhill LLP)
• Defendant Counsel: Alvin Yeo SC, Melanie Ho, Lim Wei Lee, Sugene Ang and Jolyn de Koza (Wong Partnership LLP),Chong Chin Chin and Sharon Lim
• Subject Matter: Administrative law,Judicial review,Professions,Medical profession and practice,Professional conduct
• Citation: [2011] SGHC 133

Philip Pillai J:

The Applicant seeks judicial review of the decision of the Singapore Medical Council (“SMC”) to appoint a second disciplinary committee (“2nd DC”) to hear and investigate a complaint following the recusal of the entire disciplinary committee (“1st DC”) originally appointed to hear and investigate the same complaint.

The judicial remedies sought by the Applicant are that of a Quashing Order against the SMC’s decision to appoint the 2nd DC to hear and investigate the complaint and a Prohibiting Order against the SMC taking any steps to bring disciplinary proceedings against the Applicant on the same subject matter covered in the charges set out in the Notice of Inquiry by the 1st DC dated 20 July 2009. Finally, the Applicant seeks a Declaration that the Medical Registration (Amendment) Regulations 2010 (S 528/2010) (“the S 528/2010 Amendment Regulations”) are void.

Preliminary Observations (i) Professional medical ethics and the market

At this hearing, many important issues relating to the private sector medical profession were raised. Public and private sector medical services are provided through a variety of forms and practice models. Whilst the traditional paradigm has been the solo general practitioner, the provision of private medical services today reflects a variety of practice models. These private sector models include group general practices, stand-alone specialist consultancies and consultancies operating with private hospitals and non-medical service providers. Whatever the forms and practice models, is the private medical sector a free market, subject only to contract, or is it concurrently subject to an underlying bedrock of medical professional ethical standards? What are these ethical standards and how do they impact a one-stop-shop practice model, which provides medical and non-medical services, directly and indirectly, through outsourced third party service providers? Are the SMC’s Ethical Code and Ethical Guidelines an exhaustive statement of all operative medical ethical standards or are there, concurrently applicable underlying ethical principles and norms as well?

As important as these issues may be, these are not, however, issues properly to be determined by the court. Parliament has under s 5(f) of the Medical Registration Act (Cap 174 2004 Rev Ed) (“MRA”) placed the duty “to determine and regulate the conduct and ethics” of medical practitioners on the SMC. Parliament has prescribed a statutory process of professional ethical standards and disciplinary accountability for medical practitioners. The raison d’etre for such a regulatory approach is explained by a variety of factors including the total dependence and trust in life and death decisions, which a patient is obliged to repose in his physician. Other factors include the following (see Margaret Stacey, Regulating British Medicine: The General Medical Council (John Wiley & Sons, 1992) at p 246):

… The particular nature of the doctor-patient relationship, its intimacy and the associated potential for exploitation is one reason; the irremediable and serious nature of mistakes that can be made is another. ‘Buyer beware’ is little help to the irreparably damaged or dead person–the ultimate risk of falling into the wrong hands in the medical market. …

Because of the complex and special nature of medical services, Parliament has placed the responsibility upon the medical profession itself (not the courts and not other agencies including the Ministry of Health, Singapore (“MOHS”)) to establish the appropriate standards of conduct and ethics and to investigate, find and sanction breaches. The sanctions for breaches range from censure, restrictions, suspension, fines and the loss of a licence to practice. Because such sanctions may seriously affect the career and reputation of the medical practitioner, an elaborate structure of procedural safeguards has been inscribed in the MRA to strike a balance between the public interest and the protection of the medical practitioner. I note the principles in Christine Woods v The General Medical Council [2002] EWHC 1484 per Burton J at [9]:

The principles which underline these provisions [ie, the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988] have been explained (by reference to the pre-August 2000 Rules) in the three cases to which I have referred and can be summarised as follows: (i) They constitute a fine balance between three competing desirables: (a) The protection of the public from the risk of practice by practitioners who for any reason (whether competence, integrity or health) are incompetent or unfit to practice, and the maintenance of standards. (b) The maintenance of the reputation of, and public confidence in, the medical profession, and the legitimate expectation of the public, and of complainants in particular, that complaints of serious professional misconduct will be fully and fairly investigated. (c) The need for legitimate safeguards for the practitioner, who as a professional person may be considered particularly vulnerable to, and damaged by, unwarranted charges against him.

…

In short, Parliament has provided in the MRA that the SMC is to set the ethical standards. Parliament has also provided that the investigation findings and sanctions for breaches of these standards are to be made, not by the SMC, but by the relevant complaints committees and the disciplinary committees to be appointed by the Chairman of the Complaints Panel and the SMC respectively. (ii) The nature of judicial review court proceedings

It should be noted that these proceedings in court are not proceedings in the nature of an appeal to court. The key differences between an appeal and judicial review bear restating. It is worth noting the following observation by Andrew Ang J in ACC v CIT[2010] 1 SLR 273 at [21]:

It is well established that in judicial review, the court is concerned not with the merits of the decision but the process by which the decision has been made. ... This is because judicial review is not an appeal from a decision and the court cannot substitute its discretion for that of the public body nor can it quash a decision on the basis that the court would not have arrived at that decision or that some other decision would have been a better one.

The merits of the SMC’s decision, as indeed the merits of the decisions of the disciplinary committees, are not within the remit of the court save to the limited extent of appeals to a court of three judges provided by s 46(7) of the MRA. In this judicial review hearing, the court will review and determine only the legality of the process leading to the SMC’s decision to refer the complaint to the 2nd DC.

The second caveat about judicial review proceedings is that they succeed or fail entirely on the record. In other words, whether the legal grounds have been made out in court will be determined entirely on the record. No evidence apart from the record is adduced in court save as a court may exceptionally permit in an appropriate case. The Applicant in the middle of the hearing sought leave pursuant to O 53 r 3 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) to introduce five affidavits from independent doctors who wished to clarify their roles which had been referred to by the Respondent in court and extensively covered in the media. These affidavits have no relevance to this judicial review proceeding and I do not grant leave. For the purposes of this judicial review proceeding, the record comprises the statement filed by the Applicant in support of these applications, the Respondent’s affidavit in reply to that statement, affidavits filed by the Applicant in response, and all annexures thereto.

(iii) The version of the MRA applicable to these proceedings

A final preliminary point should be noted. The MRA relevant to these proceedings excludes, for the most part, the amendments made under the Medical Registration (Amendment) Act 2010 (Act No 1 of 2010) (“the Amendment Act”) in which amendments to the MRA were brought into effect on 10 August 2010 and 1 December 2010 (see s 41(3) of the Amendment Act and the relevant gazette notifications). Save as otherwise expressly stated, all references in this judgment to the MRA refers to the relevant version of the MRA excluding these amendments.

The Chronology of Events The Complaint of 3 December 2007

Dato Serbini Ali, the Permanent Secretary of the Ministry of Health, Brunei (“MOHB”) wrote to Ms Yong Ying-I, the Permanent Secretary of the MOHS on 27 August 2007 expressing concerns relating to the Applicant’s invoices for the treatment of a Brunei patient (“the Patient”) as being “unacceptable and extremely high” and seeking MOHS’s intervention. In October 2007, searches were conducted under s 12 of the Private Hospitals and Medical Clinics Act (Cap 248, 1999 Rev Ed) at the Applicant’s private clinics. The Applicant was required to produce papers and records relating first to the Patient and later for other patients.

On 3 December 2007, Dr Tan Chor Hiang, who signed off as the “Senior Director (Health Regulation Division), for Permanent Secretary, (Health)” filed a complaint against the Applicant (“the Complaint”). The Complaint recounted that MOHS had conducted an investigation after reviewing the information set out in the two letters enclosed with the MOHB’s letter and had become “concerned that [the Applicant] may have taken unfair advantage of her position as the principal physician to the Patient, and of the trust and confidence which had been reposed in her” and that “[o]vercharging on such a magnitude could also bring disrepute to the medical professional in Singapore.” Noting that what it had presented in the Complaint was necessarily based on a preliminary review of the documents it had obtained and seen, MOHS identified the...