Singapore Medical Council v Lim Lian Arn

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 24 July 2019
• Neutral Citation: [2019] SGHC 172
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 3 of 2019
• Published date: 27 July 2019
• Year: 2019
• Hearing Date: 09 May 2019
• Plaintiff Counsel: Chia Voon Jiet, Koh Choon Min and Charlene Wong (Drew & Napier LLC)
• Defendant Counsel: Eric Tin Keng Seng and Cheryl Tsai (Donaldson & Burkinshaw LLP)
• Subject Matter: Professions,Medical profession and practice,Professional misconduct,Disciplinary threshold,Informed consent
• Citation: [2019] SGHC 172

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

The medical profession is an esteemed one. Its members are called to heal. And those of us who avail of their services must, to a large extent, entrust ourselves to their care. It is not surprising then that the medical profession is carefully regulated such that its members may face sanctions for professional misconduct when they conduct themselves improperly. But it is not the case that every instance of a misstep by a medical practitioner will necessarily attract disciplinary sanctions under the Medical Registration Act (Cap 174, 2014 Rev Ed) (“the MRA”). The law has developed such that where a doctor does depart from acceptable standards of conduct, it remains necessary to establish that the departure in question is so egregious that it warrants disciplinary action. Doctors are human after all, and, like the rest of us, are susceptible to lapses, errors of judgment, poor record-keeping and failures of memory. It would pose an intolerable burden for each medical practitioner, and, indeed, for society, which invests in and depends on the establishment of a vibrant medical profession, if each and every one of these failures were visited with sanctions. This is why the law seeks to strike a balance between, on the one hand, providing for the imposition of appropriate sanctions in those cases where there has been a grave failure on the part of the medical practitioner with possibly severe consequences for the patient, and, on the other hand, providing a rich range of options for the counselling, education and rapid rehabilitation of those practitioners who have departed from the expected standards but not in a persistent or sufficiently serious way. The law has always recognised the need to strike this balance, but it is sometimes overlooked in practice, as it was in this case. The result has been an ill-judged prosecution, an unwise decision to plead guilty and an unfounded conviction. In short, there has been a miscarriage of justice, with dire consequences for the medical practitioner concerned.

The medical practitioner in this case is Dr Lim Lian Arn (“Dr Lim”), who, before the Disciplinary Tribunal (“the DT”), pleaded guilty to one charge of professional misconduct under s 53(1)(d) of the MRA for failing to obtain informed consent from his patient before administering a steroid injection to her left wrist (see [1] of the DT’s grounds of decision in Singapore Medical Council v Dr Lim Lian Arn [2018] SMCDT 9 (“GD”)). Because Dr Lim chose to plead guilty, and because the DT accepted that plea, the DT was left to consider the question of sentence. On this, the Singapore Medical Council (“the SMC”), which prosecuted the matter, sought a suspension for a period of five months, while Dr Lim urged the DT to either impose the maximum fine of $100,000 or, if the DT were minded to impose a suspension, limit this to the minimum period of three months. Having considered the matter, the DT imposed a fine of $100,000 together with a number of other commonly-made disciplinary orders. There followed a major outcry from the medical profession, many of whom thought the penalty was unreasonably high. Those protesting appeared to be concerned that the decision would set an unacceptable benchmark for other cases, notwithstanding the fact that the DT had in fact imposed the lesser of the sanctions that Dr Lim himself had sought. The thrust of the dissatisfaction appeared to be directed at the SMC, which bears a responsibility for regulating the medical profession and which, in prosecuting Dr Lim in that capacity, had sought an even harsher sanction.

On 15 February 2019, following that outcry, the Ministry of Health requested the SMC to review the appropriateness of the sentence and to determine any subsequent steps that should be taken. The SMC accordingly brought the present appeal under s 55(1) of the MRA for a review of the DT’s decision by having the sentence reduced to a fine of not more than $20,000. In the course of the arguments, counsel for the SMC, Mr Chia Voon Jiet (“Mr Chia”), in response to a question that we posed to him, maintained that as far as the SMC was concerned, Dr Lim’s conviction was sound; it was only the sanction imposed on him that the SMC was taking issue with. When we asked Dr Lim’s counsel, Mr Eric Tin Keng Seng (“Mr Tin”), whether he had any view on the soundness of the conviction, he was of little assistance to us and seemed more concerned to explain why Dr Lim had been advised to plead guilty.

Having heard the parties, we are satisfied that there has been a miscarriage of justice and that Dr Lim’s conviction must be set aside. Simply put, the undisputed facts do not support the charge. Taking the SMC’s case at its highest, and even assuming that Dr Lim in fact did not obtain the patient’s informed consent, given the undisputed facts found by the DT, this was a case involving a departure from the applicable standards of conduct that did not warrant disciplinary sanction under the MRA. We explain this conclusion in this judgment, in the course of which we will also take the opportunity to canvass the following points: the threshold to be met before misconduct may be found to constitute professional misconduct under the MRA; the importance of expert evidence in assessing the liability of the medical practitioner and the sentence to be imposed; the nature and extent of a medical practitioner’s duty to obtain informed consent; and the question of defensive medicine.

Finally, we should add that much of the difficulty in this case stemmed from Dr Lim’s decision to plead guilty and then to seek a fine of $100,000. While those were matters for Dr Lim to decide on, what this case demonstrates is that medical practitioners may occasionally elect not to contest proceedings despite having strong merits on their side. In such situations, it remains incumbent on courts and tribunals to closely scrutinise the facts and the evidence, and satisfy themselves both that the conviction is well-founded and that the sentence to be imposed is appropriate to the facts that are before them. That is what we have done. It should be made clear that this is not a response to the outcry from the medical community in the wake of the DT’s decision. Courts are not susceptible to be moved by such extraneous opinions, however strongly and sincerely they may be held and expressed. We emphasise this point because it is the rule of law that we are subject to, not the rule of the crowd.

The facts

We begin by recounting the relevant facts. These are mostly found in the GD, although in the course of this judgment, we will make reference to the record of proceedings where necessary.

The charge

The charge as set out in the amended notice of inquiry dated 10 May 2018 reads in material part as follows:

That you, Dr Lim Lian Arn, a registered medical practitioner under the [MRA] are charged that on 27 October 2014, whilst practising at Alpha Joints & Orthopaedics Pte Ltd, Gleneagles Medical Centre, 6 Napier Road, #02-20, Singapore 258499, you had acted in breach of Guideline 4.2.2 of the Singapore Medical Council Ethical Code and Ethical Guidelines (2002 edition) (“ECEG 2002”) in that you failed to obtain informed consent from your patient … as would be expected from a reasonable and competent doctor in your position, in that you failed to advise the Patient of the risks and possible complications arising from the administration of 10mg of triamcinolone acetonide with 1% lignocaine in a total volume of 2ml (“H&L Injection”), before administering the H&L Injection into the Patient’s left wrist:

…

and that in relation to the facts alleged, your aforesaid conduct amounts to such serious negligence that it objectively portrays an abuse of the privileges which accompany registration as a medical practitioner, and that you are thereby guilty of professional misconduct under section 53(1)(d) of the [MRA].

[underlining, emphasis in bold and text in strikethrough in original omitted]

The facts relating to the charge

Dr Lim is a registered specialist in orthopaedic surgery. His practice is incorporated under the name Alpha Joints & Orthopaedics Pte Ltd (“the Clinic”) at Gleneagles Medical Centre (GD at [3]). On 27 October 2014, the patient consulted Dr Lim at the Clinic about some pain in her left wrist. Dr Lim conducted a physical examination of the wrist and advised the patient to undergo a scan using Magnetic Resonance Imaging (“MRI”). This was done on the same day (GD at [7]–[8]).

On the following day, Dr Lim informed the patient of the results of the scan and offered her two treatment options (GD at [8]): bracing and oral medication; or an injection of 10mg of triamcinolone acetonide with 1% lignocaine in a total volume of 2ml (“H&L Injection”) coupled with bracing and oral medication.

The only material difference between these two options appears to be the H&L Injection, which was part of the second option but not the first. The patient chose the latter option and Dr Lim administered the H&L Injection to her left wrist in the region of the Triangular Fibrocartilage Complex and Extensor Carpi Ulnaris (“the Injected Area”). The agreed statement of facts records that before administering the H&L Injection, Dr Lim did not advise the patient of the following matters (referred to at [9] of the GD as “the risks and possible complications that could arise from the H&L Injection”): post-injection flare, in particular, that: the patient might experience increased pain and inflammation in the Injected Area that could be worse than the pain and inflammation caused by the condition being treated; the onset of the post-injection flare was usually within two hours after the injection and would typically last for one to two days; the post-injection flare could be treated by rest, intermittent cold packs and...