Shorvon Simon v Singapore Medical Council

• Judge: Chao Hick Tin JA
• Judgment Date: 17 October 2005
• Neutral Citation: [2005] SGCA 49
• Citation: [2005] SGCA 49
• Defendant Counsel: Tan Chee Meng, Melanie Ho and Chang Man Phing (Harry Elias Partnership)
• Published date: 19 October 2005
• Plaintiff Counsel: Myint Soe, Daniel Atticus Xu and Jamilah bte Ibrahim (MyintSoe and Selvaraj)
• Date: 17 October 2005
• Docket Number: Civil Appeal No 48 of 2005
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether costs incurred for work done for proceedings before Complaints Committee incidental to proceedings before Disciplinary Committee,Civil Procedure,Section 45(4) Medical Registration Act (Cap 174, 2004 Rev Ed),Scope of Disciplinary Committee's power to order costs under Medical Registration Act,Principles to be applied,Particulars required to be furnished in bill of costs,Costs,Administrative Law,Taxation,Disciplinary proceedings

17 October 2005

V K Rajah J (delivering the judgment of the court):

1 This was an appeal against a judge’s decision on the quantum of costs allowable for work in the preparation and conduct of disciplinary proceedings against the appellant, Prof Simon Shorvon, a research scientist, by the respondent, the Singapore Medical Council (“SMC”).

2 Upon the conclusion of the disciplinary proceedings pursuant to the Medical Registration Act (Cap 174, 2004 Rev Ed) (“MRA”), the appellant had been found guilty by the Disciplinary Committee (“DC”) of professional misconduct. The DC then directed that the appellant pay the costs and expenses of and incidental to the proceedings, including the costs and expenses of counsel for the SMC and the Legal Assessor.

3 Section 45(4) of the MRA stipulates that:

A Disciplinary Committee may under subsection (2) order the registered medical practitioner concerned to pay to the Medical Council such sums as it thinks fit in respect of costs and expenses of and incidental to any proceedings before the Disciplinary Committee and, where applicable, an Interim Orders Committee. [emphasis added]

while s 45(5) of the MRA goes on to provide that:

The High Court shall have jurisdiction to tax such costs referred to in subsection (4) and any such order for costs made shall be enforceable as if it were ordered in connection with a civil action in the High Court.

4 An assistant registrar (“the AR”) quantified the sum of $250,000 as the appropriate quantum of costs for the “getting-up” section of the Bill of Costs. This amount was intended to cover the solicitors’ services during and prior to the sitting of the DC inclusive of work done in framing the charges. Some of the work was completed well before the formation of the DC. Both the appellant and SMC appealed against the AR’s decision. On 30 March 2005, the judge dismissed both appeals. Dissatisfied with this, the appellant lodged a further appeal to this court. We allowed the appeal and reduced the quantum of costs to $175,000. The reasons for such a reduction are now set out.

Factual matrix

The disciplinary proceedings

5 The appellant was the director of the National Neuroscience Institute (“NNI”), a wholly-owned subsidiary of the National Healthcare Group (“NHG”). During the relevant period, he was also the lead Principal Investigator of a research project named “A Study of Haplotype Structure and SNPs Frequencies in Candidate Genes Associated with Neurological Diseases and Drug Response” (“the project”). The project was funded by a $10m grant from the Biomedical Research Council over a five-year period.

6 At some point after the project was initiated, concerns were raised in relation to the research being conducted on patients afflicted with Parkinson’s disease (“PD”). The NNI appointed an inquiry panel (“the Panel”) on 24 January 2003. The Panel in turn appointed M/s Allen & Gledhill (“A&G”) as their legal counsel. The appellant appointed M/s Wong Partnership to represent him in the inquiry. The findings of the Panel were issued on 21 March 2003 in the form of a report (“the NNI Report”). The NNI Report dwelt on four concerns in relation to the inappropriate handling of the project by the appellant (“the four concerns”). These were that:

(a) patient confidentiality was breached;

(b) testing on human subjects was done without Ethics approval [sic];

(c) human subjects researched upon were exposed to risks. No competent medical assessment was made as to the suitability of the human subjects to be researched upon; and

(d) the human subjects did not give informed consent to the testing that was done on them.

as articulated in a letter by the NHG to the SMC dated 10 April 2003.

7 Relying on the findings of the Panel, the NHG preferred a complaint with the SMC against the appellant on 11 April 2003. The appellant was invited to respond. Although he declined to do so personally, his insurers, the Medical Protection Society (“MPS”) took up cudgels with the SMC, boldly asserting that it had no jurisdiction over the appellant as he had resigned from the register of medical practitioners in Singapore prior to the lodgment of the complaint.

8 The Complaints Committee (“CC”) of the SMC determined that there should be an inquiry by a DC in respect of only two of the four concerns raised in the complaint, thereby dismissing the rest of the complaint. The NHG then appealed against such a dismissal. After the Minister for Health allowed the NHG’s appeal, a total of 30 charges categorised into four groups (corresponding to the four concerns) were preferred against the appellant in the DC proceedings.

9 The charges of professional misconduct levelled against the appellant were as follows:

(a) Thirteen charges in relation to 13 PD patients for failing on various dates between September and December 2002 to safeguard their best interests and health by exposing them to unnecessary risks (“Best Interest Charges”). The PD patients’ medication had been omitted and/or modified for the purpose of “on-off” L-Dopa (or Levodopa, a drug used to treat patients with PD) testing without a proper assessment being made by the patients’ respective managing physicians or other clinically competent medical persons as to their suitability for the test. It was also alleged that proper safeguards were not put in place.

(b) Thirteen charges for failing to obtain the informed consent of each of these 13 PD patients prior to carrying out the “on-off” L-Dopa testing (“Informed Consent Charges”).

(c) Two charges for failing to obtain ethics approval from the Ethics Committees of the Tan Tock Seng Hospital (“TTSH”) and the Singapore General Hospital (“SGH”) respectively for the “on-off” L-Dopa testing that was carried on the PD patients. This included, inter alia, a failure to make, in his application letters, any request for ethics approval and to indicate that such testing would be implemented (“Ethics Approval Charges”).

(d) Two charges for breaching the PD patients’ right to medical confidentiality by obtaining their medical data and records from the TTSH and SGH pharmacies without their consent and using this information for the purposes of the project (“Confidentiality Charges”).

10 Despite the appellant’s refusal to participate in the DC proceedings, the MPS insisted that the SMC’s solicitors make known the appellant’s position on the jurisdictional and other issues to the DC. The MPS further requested that his previous statements made at the NNI and Ministry of Health inquiries be considered by the DC. The SMC’s solicitors acceded to this request.

11 The DC hearing took place over nine days. The jurisdictional issue alone occupied the first one and a half days, with the DC unequivocally concluding that it had jurisdiction over the appellant. In relation to the Best Interest Charges and the Informed Consent Charges, the DC censured the appellant, fining him $5,000 on each charge and ordering that his name be removed from the register of medical practitioners. Apropos the Ethics Approval Charges and Confidentiality Charges, the DC censured the appellant, fining him $5,000 on each charge. Subsequently, and in response to the High Court ruling in Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151, the SMC applied to court for the total sum of the fines imposed on the appellant to be limited to $10,000. The court duly allowed the application.

The taxation proceedings and the appeal to the judge

12 At the original taxation proceedings before the AR, the SMC claimed $450,000 as getting-up costs for work done prior to and during the DC proceedings. The AR reduced this amount to $250,000. Before the judge, the SMC continued to press for a higher sum, with the appellant submitting on the other hand that no more than $108,000 should be allowed. The judge felt the amount of $250,000 awarded by the AR was fair and reasonable and dismissed both applications for review while additionally directing that each party bear its own costs (see Singapore Medical Council v Shorvon Simon [2005] SGHC 93).

13 The judge took into account the novelty of the jurisdictional and ethical issues, the time expended in procuring the statements of the PD patients, the copious documents, the absence of the appellant at the proceedings, and finally the pressing need to take immediate and urgent action. The judge also rejected the appellant’s argument that the costs for work done at the CC stage prior to the formation of the DC were not costs of and incidental to the disciplinary proceedings within the meaning of s 45(4) of the MRA.

14 In response to the appellant’s main submission that the amount of $250,000 amounted to a princely $28,000 per day, in stark contrast to and at variance with both the $13,000 to $14,000 per trial day allowed for High Court Bill of Costs No 600176 of 2001 in the medical negligence suit of Tan Hun Hoe v Harte Denis Mathew [2001] 4 SLR 317 as well as the $10,000 per day guideline employed by the court in Tan Boon Hai v Lee Ah Fong [2002] 1 SLR 10, the judge opined (correctly in our view) that the length of the hearing was but one of many factors to be taken into account.

15 The judge emphasised that he was not attempting to re-write the criteria for taxation of costs in disciplinary proceedings. Awarding costs on a per-trial-day basis was a rough guide which, if adhered to rigidly, could operate unfairly. The appellant had submitted that the amount of costs awarded ought to be $12,000 per day, which would amount to $108,000 for nine days. The judge extrapolated that assuming the appellant had admitted to all the charges preferred against him on the eve of the proceedings and assuming further that the hearing was completed in just one day, the SMC would, based on such a hypothesis and such a proffered quantum, receive only about $12,000 in costs; such an outcome, he emphasised, would be most unjust. Even if that amount was supplemented by another two days’ worth of...