Lim Teng Ee Joyce v Singapore Medical Council

• Judge: Chao Hick Tin JA
• Judgment Date: 19 July 2005
• Neutral Citation: [2005] SGHC 129
• Citation: [2005] SGHC 129
• Defendant Counsel: Doris Chia and Peter Chean (Harry Elias Partnership)
• Published date: 20 July 2005
• Plaintiff Counsel: Edwin Tong and Tham Hsu Hsien (Allen and Gledhill)
• Date: 19 July 2005
• Docket Number: Originating Motion No 16 of 2005
• Court: High Court (Singapore)
• Subject Matter: Administrative discretion,Whether appellate tribunal entitled to interfere with costs order if manifestly wrong or exercised on wrong principles,Singapore Medical Council,Costs,Whether notion of completely subjective or unfettered discretion contrary to rule of law,Section 45 Medical Registration Act (Cap 174, 2004 Rev Ed),Disciplinary proceedings,Whether disciplinary committee having unfettered discretion to impose costs,Whether inconsistent with principle and contrary to notion of fairness for disciplinary committee to punish medical practitioner with costs if practitioner acquitted of charge,Whether principles on costs in normal civil proceedings applicable to disciplinary process,Administrative Law,Whether disciplinary committee's failure to explain order for appellant to pay costs in respect of unsubstantiated third charge was prima facie error,Disciplinary tribunals,Discretionary powers,Whether necessary for tribunal to make proper apportionment on costs in relation to disciplinary inquiry

19 July 2005

Chao Hick Tin JA (delivering the judgment of the court):

1 This was a motion in which the appellant, Dr Lim Teng Ee Joyce, appealed against an order on costs which was made against her by the Singapore Medical Council (“SMC”) pursuant to certain disciplinary proceedings instituted against her. We heard the appeal on 27 May 2005 and allowed it in part by reducing the amount of costs, which she was required to pay, to only one-third. We now explain why, in our opinion, the order on costs was erroneous.

The background

2 The appellant is a dermatologist in private practice. The disciplinary proceedings arose from a complaint from one of her patients, Wendy Lim Ai Beng (“the patient”), who consulted her for treatment of facial acne and other skin problems. The appellant saw the patient during the period 18 February 2003 to 31 May 2003.

3 There is no necessity for us to go into details regarding the skin problems or the precise treatment she applied. Suffice it to say that on 28 April 2003, the appellant prescribed laser treatment for the patient’s left cheek in order to stimulate the formation of collagen and reduce the redness. Her nurse, one Ms Evelyn Lee, was tasked to give the laser treatment.

4 On 29 May 2003, the patient returned to see the appellant for further treatment of her left cheek. She was given the same laser treatment by the nurse. On this occasion, while receiving treatment, the patient complained of pain and heat. She was assured that this was normal and was given a cold compress to cool her skin. Thereafter treatment resumed. Later, when the patient was at her hairdresser’s saloon, she noticed fluid dripping from her left cheek. She returned to the clinic at about 7.15pm. The appellant saw the patient and recorded in her notes that the area was well and that there was slight serum oozing, slight redness. There were no ulcers or breaks.

5 The next day, the swelling at the cheek became worse. The patient went back to the appellant who then dressed up the swollen part. The following day, not only did the swelling not get better, it got worse, prompting the patient to seek treatment from other dermatologists. A few days later the patient lodged a complaint with the SMC.

6 Investigations ensued. As a result, three charges of professional misconduct under s 45(1)(d) of the Medical Registration Act (Cap 174, 2004 Rev Ed) (“the MRA”) were preferred against her. The first two charges related to the appellant improperly delegating to her nurse the administration of the laser treatment to the patient on the two days, 28 April and 29 May 2003, in contravention of the licence issued to the appellant. The third charge was for:

Failing to properly manage the treatment of the patient by recommending the use of the Coolglide Vantage Laser on the patient’s facial skin on 29 May 2003 when the patient’s facial skin allegedly displayed certain symptoms that were allegedly adverse to the use of the laser.

7 The appellant was given notice of the charges on 23 August 2004. Nothing of significance occurred until 20 January 2005 when the appellant notified the SMC that she would be pleading guilty to the first two charges and would only be making a mitigation plea in relation thereto. However, she would be defending the third charge.

8 The appellant was given the deadline of 18 February 2005 to submit her mitigation. However, as the SMC intended to rely on certain documents (which included expert evidence and correspondence with the Health Sciences Authority) which it could not furnish to the appellant in time, the appellant was only able to submit her mitigation on 23 February 2005, the same day the documents were made available to her.

9 The hearing before the Disciplinary Committee (“DC”) commenced on 1 March 2005 and continued until 3 March 2005. We should add that the third charge was amended by the SMC on 18 February 2005, after the appellant had submitted her expert reports to the SMC’s solicitors the day before. The third charge was further amended on 28 February 2005.

10 At the conclusion of the hearing on 3 March 2005, the DC acquitted the appellant of the third charge. In respect of the first two charges for which the appellant had pleaded guilty, the DC, after hearing mitigation, imposed the following punishments, namely that:

(a) she be censured;

(b) she be suspended for a period of three months;

(c) she be fined the sum of $10,000;

(d) she give an undertaking that she would abstain in future from the conduct complained of or from similar conduct;

(e) that she pay all the costs of and incidental to these proceedings, including those of the solicitors to the SMC and the Legal Assessor (“the costs order”).

11 Following the decision of the DC, the SMC’s solicitors wrote to the appellant’s solicitors asking for the costs of the whole inquiry which the former had assessed at $60,000, plus disbursements and another $15,000 for the attendance of the Legal Assessor at the inquiry. Further correspondence ensued. The appellant’s solicitors asked for a breakdown of the sum of $60,000 and, in particular, enquired whether the quantum took into account the fact that she was acquitted of the third charge. No clarification was forthcoming on these queries from either the DC or the SMC’s solicitors.

12 This impasse prompted the appellant to file the present appeal to the court of three judges in respect only of the order on costs. Subsection (7) of s 46 of the MRA accords a right to a registered medical practitioner (“RMP”), who is aggrieved by an order of the DC, to appeal to the High Court. There is no restriction on the right of appeal even where the order that is being challenged relates only to costs.

Issue on appeal

13 On the face of the costs order it would appear that the DC had required the appellant to pay the full costs of the three-day hearing, including the costs of the Legal Assessor for the period. The question which this court had to address and answer was whether, bearing in mind that the appellant was successful in defending the third charge, it was correct in principle for the DC to have ordered her to bear the costs of the whole inquiry or should she only be required to bear the costs for the time spent or work done in relation to the first two charges.

Extent of discretion of disciplinary committee

14 Section 45(4) of the MRA provides that a DC may, in pursuance of its powers of punishment under s 45(2), “order the [RMP] concerned to pay to the [SMC] such sums as it thinks fit in respect of costs and expenses of and incidental to any [inquiry]”.

15 It seems to us clear that the power under s 45(4) should not be read in isolation but together with ss 45(1) and 45(2). Subsection (1) of s 45 provides that the DC may exercise one or more of the powers set out in sub-s (2) where, inter alia, the RMP has been found guilty of professional misconduct or other specified infractions. The premise of the DC exercising the powers of punishment under sub-s (2) is the fact that the RMP has been found guilty of professional wrongdoing or other misconduct. It is true that s 45(4) provides that the DC may order the RMP to pay to the SMC “such sums as it thinks fit in respect of costs and expenses” but that power should only be exercised within the framework of ss 45(1) and 45(2). In the scheme of things under s 45 of the MRA, an order requiring the RMP to pay costs of the proceedings is a form of punishment even though the provision conferring the power to order costs against the RMP is set out in sub-s (4) instead of sub-s (2) of s 45, as sub-s (4) merely expands the powers of the DC under sub-s (2). Section 45(4) does not confer an unfettered discretion. The notion of a completely subjective or unfettered discretion is contrary to the rule of law: see Chng Suan Tze v Minister...