Singapore: A Timely Reminder Of The Exercise Of The Singapore Medical Council's Independent Prosecutorial Discretion

Last Updated: 24 September 2019
Article by Melvin See and Siang Pheng Lek

A number of highly contentious Singapore Medical Council disciplinary cases has been reported since the start of this year. Can we learn anything from these cases?

Medical disciplinary proceedings begin life as a complaint lodged with the Singapore Medical Council, which is then inquired into by a Complaints Committee. If after due inquiry, the Complaints Committee determines that a formal inquiry is necessary, it shall order that an inquiry be held by the Disciplinary Tribunal. In some cases, although the Complaints Committee determines otherwise, the Disciplinary Tribunal is nevertheless ordered to be appointed to hear and investigate the complaint. This happens if the Minister for Health allows an appeal by the dissatisfied complainant against the order of the Complaints Committee, and directs that an inquiry be held.

It has long been assumed that once a complaint is referred for an inquiry by the Disciplinary Tribunal, it follows an inexorable trajectory. Charge(s) are preferred against the doctor by the Singapore Medical Council, the doctor either contests the charge(s) before the Disciplinary Tribunal or pleads guilty (sometimes, after entering into a plea bargain). Then, the Disciplinary Tribunal either convicts and sentences the doctor if the charge(s) are proven beyond a reasonable doubt, or acquits the doctor otherwise. This assumption is underpinned by the mandatory requirement that the doctor be sent a notice setting out the charge(s) against the doctor once a Disciplinary Tribunal is appointed.

The Singapore Medical Council is empowered to consider representations from the doctor to amend, withdraw, substitute, amalgamate or take into consideration charge(s) against the doctor. This is the plea bargain process mentioned above, one where the doctor agrees to plead guilty to fewer or less serious charge(s). 

The Disciplinary Tribunal itself is empowered to discontinue further proceedings on the charge(s) against the doctor if it determines that the evidence brought forward is insufficient or there is no evidence to substantiate any or all of the charges. To our knowledge, the Disciplinary Tribunal has very rarely of its own volition exercised this power. Instead, the inquiry proceedings tend to run their usual course and the Disciplinary Tribunal acquits if the charge(s) are not proven beyond a reasonable doubt.

The prevalent scenario is that once a complaint is referred to a Disciplinary Tribunal, the proceedings will run its course and eventually end with a conviction or an acquittal, as the case may be. 

Is the Singapore Medical Council compelled to prosecute a doctor to the end simply because a Complaints Committee or the Minister for Health (upon an appeal) has determined that a Disciplinary Tribunal inquiry be held? Is the Singapore Medical Council constrained from exercising its independent prosecutorial discretion?

The answer to this should be a "no". It is known that there have been cases where the Singapore Medical Council has withdrawn the charge(s) after representations are made on behalf of the doctor. But what if no representations are made by the doctor? Is the Singapore Medical Council obliged to review its case from time to time and determine whether it should continue with its prosecution of the inquiry case?

The recent Court of Three Judges' decision in Singapore Medical Council v BXR [2019] SGHC 205 (SMC v BXR) issued on 4 September 2019 gives some food for thought.

In an earlier landmark decision of Ang Pek San Lawrence v Singapore Medical Council [2015] 2 SLR 1179, the Court of Three Judges ordered the Singapore Medical Council to pay costs of the inquiry to a doctor following his acquittal before the Disciplinary Tribunal. In the Court of Three Judges' view, the ultimate objective is to render a cost order that is just and reasonable; while the fact that the Singapore Medical Council was performing a regulatory function was an important and sometimes overriding factor against an award of costs against it, the key question in determining the amount of weight to be placed on this factor was whether the decision to prosecute was made by the Singapore Medical Council honestly, reasonably and on grounds that reasonably appeared to be sound in the exercise of public duty. If the answer to this is "no", there would be a stronger case for an adverse cost order on the Singapore Medical Council. Implicit in the Court of Three Judges' reasoning is the legal authority of the Singapore Medical Council to decide whether or not to prosecute. If the Singapore Medical Council had no say in the decision to prosecute, it stands to reason that it would be unfair to impose cost consequences against it.

This was made explicit in SMC v BXR. This was an appeal solely on the issue of costs by the Singapore Medical Council against the decision of the Disciplinary Tribunal in Singapore Medical Council v Dr R [2018] SMCDT 7 (SMC v Dr R) issued on 27 August 2018.

In SMC v Dr R, the key complaints against the doctor, a plastic surgeon, were that he had failed to obtain the patient's consent to use her unanonymised photographs, related and unrelated medical information in medical / scientific publications and presentations and that if he did, such consent had not been properly documented. The Singapore Medical Council preferred 4 charges of failure to obtain informed consent and 1 charge of inadequate documentation against the doctor. At the end of the Inquiry, the Disciplinary Tribunal acquitted the doctor of all the 5 charges against him and also awarded costs to be paid by the Singapore Medical Council to the doctor. 

The evidence produced by the doctor in his defence included:

  1. a blanket written consent signed by the patient stating "I, [name of patient], hereby allow [name of doctor] to use my photos in medical/scientific publications & to describe my case"; and
  2. 4 e-mails from the doctor to the patient on the same day shortly after the written consent was signed attaching presentation slides containing the patient's unanonymised full face photographs.

The patient attempted to surmount the existence of the written consent by claiming that she and the doctor agreed to a contemporaneous oral "win-win" arrangement where she would receive treatment for her enlarged parotid glands at cost in exchange for the doctor featuring her case in only one medical paper without mention of her past cosmetic procedures with him. She claimed that the doctor also agreed to limit the scope of the consent by not showing her photographs without cropping her face above her eyes. It was on these bases, she claims, that she gave her consent.

However, there was no documentary evidence supporting the existence of such an alleged "win-win" arrangement. The treatment prices as recorded in the contemporaneous medical notes did not support the existence of such an arrangement. Instead, they showed the doctor had offered general discounts to the patient and the patient later asked for even more discounts on two occasions. This supported the doctor's account that he had offered a good rate for the treatment to the patient, but not "at cost". The Disciplinary Tribunal accepted the doctor's explanation that he would not have agreed to administer treatment "at cost" when the treatment had not yet begun and where it was unclear that the result of the treatment would even be sufficiently successful to be published.

The alleged "win-win" arrangement was also inconsistent with the patient and her husband's subsequent conduct. She continued to seek and pay for treatment for a period of over five years. This was inconceivable if the doctor had been overcharging them ever since the first treatment in breach of the alleged "win-win" arrangement.

Yet, in the face of the evidence of the documented consent and also the conduct of the patient, the Singapore Medical Council proceeded to prosecute the inquiry case to its conclusion, no doubt pursuant to the order of the Complaints Committee to hold an inquiry. 

At the end of the contested inquiry hearing (lasting 10 days), the Disciplinary Tribunal concluded that the alleged oral "win-win" arrangement and limitation of the scope of the consent was incongruous with the contemporaneous medical notes and with the patient and her husband's subsequent conduct. Their oral testimony alone was not sufficient to prove the existence of the "win-win" arrangement or the limitation of the scope of the consent.

However, the Disciplinary Tribunal found that the patient and her husband's account of events was utterly devoid of such compelling quality as to be provable beyond a reasonable doubt. Their account was inherently unbelievable. The patient claimed that the doctor voluntarily told her that he had presented her case at a medical conference in breach of the alleged oral assurances, causing her to tear up and he had to placate her. The doctor subsequently told her and showed her the textbook where he failed to anonymise her photographs and described her procedures to her consternation. The doctor even gave her a copy of the textbook chapter featuring the patient. Later, the doctor told her a third time that he had presented her case in another presentation in breach of his oral assurances. The Disciplinary Tribunal found it baffling that the doctor would have acted in such a manner if there was, as the patient had claimed, no consent given.

Further, this account by the patient was in stark contrast with the fact that there was no contemporaneous evidence of the patient's unhappiness with the doctor's alleged repeated breaches and how poorly it made her feel. The Tribunal found that her objective inaction despite the alleged breaches and the fact that she continued to seek treatment from the doctor even though she knew she had the option of ceasing treatment to be inconsistent with her account. The patient's behaviour was not consistent with someone who knew she had been tricked and played out by her doctor. The most plausible explanation is that she had willingly given her consent.

Quite apart from finding that the complaint by the patient had no factual basis, the Disciplinary Tribunal also found that the ethical yardstick used by the Singapore Medical Council for the Inquiry had no basis either. The Singapore Medical Council had relied solely on the opinion of an expert witness (a medical practitioner, with teaching experience in medical ethics). Unfortunately, the Disciplinary Tribunal found that this expert had no tangible basis or support for his opinion – which flew in the face of standard forms and published guidelines – and even questioned whether this "expert" had the relevant professional experience to give an opinion on issues relating to consent for the purposes of presentations or publications!

When completely acquitting the doctor of all the charges against him, the Disciplinary Tribunal ordered the Singapore Medical Council to pay the costs of the Inquiry to the doctor. As mentioned above, this power is exercised when the Disciplinary Tribunal is of the view that it would be just and reasonable to do so. The case of SMC v Dr R was the first time a Disciplinary Tribunal ordered the Singapore Medical Council to pay costs to a defendant doctor.

The Singapore Medical Council felt that costs ought not to have been ordered against it for the Inquiry. During the appeal in SMC v BXR, the Singapore Medical Council sought to argue that the Disciplinary Tribunal did not take into account that the complaint was referred by the Complaints Committee. 

The Court of Three Judges held that the mere fact that the proceedings were referred by the Complaints Committee did not necessarily lead to the conclusion that costs ought not to be awarded against the Singapore Medical Council. This was because the Singapore Medical Council still had an obligation to independently verify a complaint even if the matter is referred to it by the Complaints Committee. The Court of Three Judges did not think that the Singapore Medical Council had discharged this obligation in this case.

As the Court of Three Judges held that the decision by the Singapore Medical Council to prosecute the doctor was not made on grounds that reasonably appeared to be sound in the exercise of public duty, it dismissed the appeal against the costs order.

Therefore, the authors take the view that the Singapore Medical Council is not necessarily compelled to prosecute a doctor to the end and instead ought to exercise its independent prosecutorial discretion. If the Singapore Medical Council has a continuing obligation to ascertain whether a complaint has a proper factual basis with reference to objective contemporaneous evidence and whether the ethical yardstick has a proper basis and is supported by an expert with relevant expertise and proper qualification, it follows that the Singapore Medical Council must have the discretion to cease a prosecution and discontinue further proceedings. This, the Singapore Medical Council ought to do so whether or not the doctor makes representations or not. Both the recent widely reported case involving an orthopaedic surgeon (Singapore Medical Council v Lim Lian Arn [2019] SGHC 172) and the current case of SMC v BXR serve as a timely reminder of this obligation. 

The authors thank and acknowledge our senior associate Toh Cher Han for his contribution to this article. The authors and Cher Han represented the doctor in SMC v Dr R and SMC v BXR. (It is the same doctor despite the different acronyms used in the title of the case.)

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