Low Chai Ling v Singapore Medical Council

JurisdictionSingapore
CourtHigh Court (Singapore)
Judgment Date17 September 2012
Docket NumberOriginating Summons No18 of 2012
Date17 September 2012

[2012] SGHC 191

High Court

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Originating Summons No18 of 2012

Low Chai Ling
Plaintiff
and
Singapore Medical Council
Defendant

Myint Soe and Daniel Atticus Xu (Myint Soe & Selvaraj) for the applicant

Tan Chee Meng SC, Josephine Choo and Maxine Ung (Wong Partnership LLP) for the respondent.

Gobinathan Devathasan v Singapore Medical Council [2010] 2 SLR 926 (refd)

Law Society of Singapore v Ng Chee Sing [2000] 1 SLR (R) 466; [2000] 2 SLR 165 (refd)

Lim Beh v Opium Farmer (1842) 3 Ky 10 (refd)

Low Cze Hong v Singapore Medical Council [2008] 3 SLR (R) 612; [2008] 3 SLR 612 (refd)

Wong Kok Chin v Singapore Society of Accountants [1989] 2 SLR (R) 633; [1989] SLR 1129 (refd)

Legal Profession Act (Cap 161, 1997 Rev Ed) ss 83 (2) , 83 (2) (b) , 83 (2) (h)

Legal Profession Act (Cap 161, 2009 Rev Ed) ss 83 (2) (b) , 83 (2) (h)

Medical Registration Act (Cap 174, 1998 Rev Ed) ss 45 (1) (c) , 45 (1) (d) (consd) ;s 40 (7)

Medical Registration Act (Cap 174, 2004 Rev Ed) ss 53 (1) (c) , 53 (1) (d) (consd)

Courts and Jurisdiction—Appeals—Role of appeal court in hearing appeals from disciplinary tribunals—Deference to original findings—Where deference not tantamount to undue deference

Professions—Disciplinary proceedings—Charges not being sufficiently particularised

Professions—Medical profession and practice—Ethical guidelines being retrospectively applied—Whether punishment could be imposed in absence of clearly established regulations

Professions—Medical profession and practice—Professional conduct—Doctor's conduct bringing disrepute to profession—What amounted to bringing disrepute to profession—Section 45 (1) (c)Medical Registration Act (Cap 174, 1998 Rev Ed)

Professions—Medical profession and practice—Professional conduct—Whether doctor guilty of professional misconduct—What amounted to professional misconduct—Section 45 (1) (d)Medical Registration Act (Cap 174, 1998 Rev Ed)

Professions—Medical profession and practice—Whether standards of professional responsibilities in practice of conventional and aesthetic medicine were the same

Low Chai Ling (‘the Applicant’) was a general practitioner who practised at The Sloane Clinic, carrying out non-invasive aesthetic treatments. On 20 September 2007 she was sent a letter by the Ministry of Health (‘MOH’) referring to some advertisements on the clinic's website, asking for more information with regard to nine different treatments listed on the website. The letter highlighted the possibility that those treatments were in breach of Art 4.1.4 of the Singapore Medical Council's (‘SMC’) Ethical Code and Ethical Guidelines (‘ECEG’) which stipulated that doctors should only treat patients according to generally accepted methods and not offer treatments which were not generally accepted by the medical profession. This led to further correspondence between the Applicant and the MOH where the Applicant tried to show that the treatments were not in violation of the ECEG. However, the MOH was unconvinced and the Applicant was subsequently charged on seven counts (two treatments were dropped from the original nine) on 1 March 2010 for offering and carrying out aesthetic procedures which allegedly contravened Art 4.1.4 of the ECEG. On 12 December 2011, the SMC's Disciplinary Committee (‘DC’) convicted the Applicant for professional misconduct under s 45 (1) (d)of the Medical Registration Act (Cap 174, 1998 Rev Ed) on five out of seven of the charges largely on the basis that those treatments did not meet the threshold required by evidence-based medicine (‘EBM’). The Applicant appealed to the High Court against that decision.

Held, allowing the appeal:

(1) The charges against the applicant did not accord with the reason given for the initiation of the disciplinary proceedings during the hearing. While the charges related to the Applicant allegedly carrying out non-EBM aesthetic procedures prior to 20 September 2007, the SMC stated that the proceedings arose because the applicant failed to stop the procedures despite receiving the MOH's letter on 20 September 2007. However, there was no unequivocal directive contained in that letter (or subsequent ones) for the Applicant to stop those treatments immediately: at [31] to [37].

(2) The charges were in any event vague and did not have sufficient particulars. The Applicant was not given adequate notice of what she was being charged for: at [38] to [41].

(3) The charges contained alternative and distinct elements which were eventually considered by the DC as cumulative requirements. It appeared unclear if a cumulative approach was indeed being preferred as the charge had various limbs listed as possible alternatives. The charges were therefore legally embarrassing: at [40].

(4) Given the then prevailing circumstances in relation to the practice of aesthetic medicine, it was unsatisfactory for doctors to be punished for administering aesthetic procedures which were only clearly deemed by the SMC not to be evidence-based well after the alleged transgressions: at [42] and [43].

(5) The DC failed to granularly consider whether the Applicant had indeed flouted the specific guidelines for the administering of low EBM-treatments listed in the expert witness Dr Goh Chee Leok's report: at [44] to [50].

(6) The DC failed to show how the Applicant's conduct corresponded to its own understanding of what constituted professional misconduct, despite its reliance on a passage from Low Cze Hong v Singapore Medical Council[2008] 3 SLR (R) 612 at [37].The DC had taken an abstract approach. The focus instead ought to have been on the actual conduct of the Applicant apropos her patients: at [51] and [52].

(7) Prior to the issuance of the Guidelines on Aesthetic Treatments for Doctors released in 2008 (‘the 2008 Guidelines’), the SMC's stance on aesthetic treatments was unclear as to what was permissible. Aesthetic medicine was then rapidly evolving and there were no clear advisory cautions issued: at [53] to [56].

(8) The Applicant's conduct throughout the period of her correspondence with the MOH, even if seen to be defiant by the SMC, was not of sufficient gravity to constitute professional misconduct: at [57] and [58].

(9) Even if the 2008 Guidelines had applied to the Applicant's conduct, it was not clear that the Applicant would have been in breach of them. Moreover, the SMC's charges against her suggested an absolute prohibition on any non-EBM procedures - an approach much stricter than the 2008 Guidelines - and hence were unjust: at [59] to [63].

(10) The 2008 Guidelines were meant to target conduct disreputable to the medical profession, rather than professional misconduct. The former offence, being less serious than the latter, was usually committed in a non-professional capacity. There was no health or medical reason why a doctor might not provide beauty treatments; the only reason why he/she should not was that he/she might bring the medical profession into disrepute: at [67] to [75].

[Observation: It was a cardinal tenet of the rule of law that a person should only be punished for offending laws, regulations or professional practices that had been both known and clearly established at the time of offending; no person should be punished retrospectively: at [42].

Tolerance for errant doctors who visibly departed from the 2008 Guidelines by offering and performing dubious aesthetic treatments would first corrode and then erode the sterling reputation that the medical profession now enjoyed for competence and integrity. Patients were entitled to have an anticipatory confidence that all doctors were both competent and ethical: at [74].

The 2008 Guidelines raised an important but unsatisfactorily vague injunction against doctors not to charge ‘highly profitable fees’ for low evidence-based procedures. As an area of medical practice where the effectiveness of treatment could not be measured quantitatively, the field of aesthetic medicine could potentially be a trap for the unwary. The SMC should come up with better guidelines in relation to specific types of low evidence-based procedures: at [66].]

Judgment reserved.

V K Rajah JA

(delivering the judgment of the court):

Introduction

1 This is an appeal by Dr Low Chai Ling (‘the applicant’) against the decision of the disciplinary committee (‘the DC’) constituted by the Singapore Medical Council (‘the SMC’) in convicting her of five out of seven charges of offering and performing aesthetic procedures that were found not to be clinically justifiable. She was charged with professional misconduct under s 45 (1) (d) of the Medical Registration Act (Cap 174, 1998 Rev Ed) (‘the MRA (1998)’).

Background

Parties to the dispute

2 The applicant is a general practitioner (‘GP’) who obtained her MBBS from Guy's & St Thomas' Hospital in London in 1998, and completed a Diploma of Dermatology from the University of Wales in 2003. As a GP, she first started a GP clinic called Eastlife Medical Centre in 2000. Subsequently, she started The Sloane Clinic in 2003 and a second branch in 2005. To date, The Sloane Clinic has a total of six branches, including one in Kuala Lumpur, Malaysia. It has a website at the Internet address .

3 At the material time in 2007, the applicant was the director of The Sloane Clinic, which provided both non-invasive aesthetic treatments as well as invasive plastic surgery. The applicant only performed the former type of treatments and procedures such as lasers, filler and botox, whereas accredited plastic surgeons practised the latter type of cosmetic and reconstructive surgery. The Sloane Clinic was later acquired by Healthtrends Medical Group in 2008, and the applicant has been a salaried employee of the group ever since.

4 The SMC is a statutory board which, inter alia,governs and regulates the professional conduct and ethics of...

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