The Complaints Committee of the Singapore Medical Council

It was stated in an article in the November 2005 issue of the Singapore Law Gazette that disciplinary proceedings in the Singapore Medical Council (‘SMC’) touching on the professional conduct of a medical practitioner involve a two-tier process: first, the cursory examination of the merits of the complaint by a Complaints Committee (‘CC’) of the SMC, followed, if necessary, by a formal investigation of the complaint by a Disciplinary Committee (‘DC’). This article provides an overview of some of the more important issues/matters that arise at the CC stage of a medical disciplinary inquiry. It starts by looking into the process of inquiry at the CC stage.

Inquiry and Its Process

Time limit and matters extraneous to the complaint

Where a CC inquires into a complaint, it must complete its inquiry within three months from the date the complaint was laid before it.¹ Extensions of time are possible but there are governing rules. An extension will be given if the matter investigated upon is complex or when the CC is faced with serious difficulties in conducting its inquiry.² The CC is also confined to investigating matters raised in a complaint – it has no power to inquire into matters not the subject of the complaint.

The three-month deadline and whether a CC can inquire into matters outside a complaint came for judicial consideration in the case of Tan Tiang Hin Jerry v SMC [2002] 2 SLR 274.

In that case, Dr Tan, an ophthalmologist, was a director and shareholder of a company called Specialist Eyecare, which itself owned an optical shop and an eye clinic. Both the shop and the clinic were located next to each other. Dr Tan was the holder of the licence for the clinic.

On 26 January 1998, the Business Times published an article on the shop, stating that the shop had a licensed clinic in the premises of the building where the shop was located.

The article was brought to the attention of the then President of the Singapore Medical Association (‘SMA’), who then lodged a complaint to the SMC specifically complaining about Dr Tan’s shareholding in the shop and the possibility of the existence of a conflict between Dr Tan’s financial interests and his role as a medical practitioner.

After completing its inquiry, the CC was of the view that a formal inquiry was necessary and it informed Dr Tan of its decision. Some time later, Dr Tan received a notice of when the formal inquiry by the DC would eventuate. In that notice, two charges were preferred against Dr Tan, one for the advertising of the clinic in the article and the other for the promoting of the shop in the 
same article.

Dr Tan argued that the CC had no power to inquire into matters extraneous to the complaint lodged by the President of the SMA. His argument was accepted by the Court of Appeal, which held that the power given to a CC is to be exercised only in respect of the matters raised in a complaint and not further, and the SMC cannot proceed against Dr Tan in respect of the charges of advertisement and promotion on the basis of the SMA’s President’s complaint which was strictly confined to financial interests and conflict.

Dr Tan also contended that the three-month time period had been infringed by the SMC on account of the fact that he was notified of the formal inquiry some five months after the CC had made its finding. He argued that a complete finding by the CC involves the notification to him of the finding, and hence the three-month period includes the time which a practitioner must be informed of the finding.

On this point, however, the Court of Appeal disagreed with Dr Tan, stating that the three-month period only involves the completion of an inquiry of a complaint – it did not extend to informing him of the outcome. The Court of Appeal went on to distinguish between the time prescribed for a complete inquiry and the time period in which a practitioner is required to be informed of the decision of the CC. The relevant provision³ only states that a practitioner must be notified of the determination – no time period is prescribed by the provision of when he should be informed. Recognising that in the absence of time periods the law will imply a reasonable time, the Court of Appeal found that the five months the SMC took to inform Dr Tan was not reasonable and the SMC had, therefore, been in breach of the provision in question.⁴ However, Dr Tan’s appeal was dismissed by the Court of Appeal which found that Dr Tan had suffered no substantial prejudice or disadvantage as a result of the breach.

Discovery

The CC is given wide powers to undertake its task in inquiring a complaint. It is permitted to:⁵

1   call upon or appoint any person whom it considers to be necessary to assist in its investigations and deliberations;

2   require the production of any book, document, or other record for its inspection, or for the inspection of the person it calls upon or appoints; and

3   require the practitioner concerned to disclose any information which is reasonably required by it or the person it calls upon or appoints.

A refusal to produce is a criminal offence with a maximum fine of $5,000 or punishment of 12 months’ imprisonment. The section states that a person may be sentenced to both, with continuing offences to be given an extra fine of $50 for each day during which the offence continues.

The information given enjoys confidential status⁶ and is not to be disclosed to any person including the practitioner concerned, unless the CC exercises its discretion to the contrary.

Legal advice

The CC is also permitted to seek legal advice before it makes a finding.⁷ Lawyers are not legal assessors and their role is to be distinguished from the role of legal assessors.⁸

Invitation to reply

Having examined the complaint, the CC may decide to hear from the practitioner concerned, in which case it will provide the practitioner with a copy of the complaint. That letter will normally also invite the practitioner to tender a written response, if he so wishes, within 21 days.⁹ More often than not, practitioners would not be able to comply with that time limit for a variety of reasons (time needed to obtain clinic cards and to refresh memory, the need to see solicitors, etc). A written or oral extension of time would then be sought and it would in almost all instances be given.

As the CC makes only a preliminary finding, there would be no need for it to hear the practitioner in person or through his counsel. In fact, the Medical Registration Act (‘the Act’) expressly prohibits practitioners being heard,¹⁰ but the relevant provision also states that the CC could, in its discretion, hear practitioners. In practice, practitioners are not heard.

The Practitioner’s Reply

Two of the orders a CC are empowered to make are an order that the complaint be dismissed or that a formal inquiry by a DC be undertaken. It would be trite to say that no practitioner would want to be involved before a DC and every practitioner would wish for the dismissal of the complaint. Two issues arise: the length of the practitioner’s response and the tenor of his ‘defence’.

Length of reply

It is really unfortunate that many practitioners take a terribly lax view of the complaint to be addressed. Many times, in practice, practitioners hoped for a dismissal with a short reply. Regrettably, short replies were given simply because practitioners were averse to putting sufficient effort to address the issues that arose in the complaint.

There is, of course, no law on the length of a reply. The length will be proportionate to the issues addressed. Often times, practitioners simply reproduce what are in their clinic notes, with no effort to explain or address, especially with reference to the Ethical Code and Ethical Guidelines (‘The Ethical Code’) issued by the SMC. They simply wish for the complaint to disappear, failing to appreciate the gravity of the ethical breach. A relatively short reply which does not specifically address the issues but makes general remarks skirting the issues is most likely to lead to a formal investigation by a DC.

Replies will depend on the facts of each case. Generally, issues with reference to possible breaches must be addressed. For example, if the CC invites a practitioner to respond to a complaint that he has been inappropriately prescribing hypnotics to a few patients, it does not assist the practitioner in his reply to simply state what is contained in the clinic notes; and general statements that the intention was to assist and not harm do little to avert a formal investigation by a DC.

The practitioner should look for the relevant provision, in this case, para 4.1.3 of The Ethical Code, which states that prescriptions must be: (a) on clear medical grounds; (b) in reasonable quantities; and (c) as appropriate to the patient’s needs. A response must deal with all five emphasised terms. The five items must be analysed with respect to each patient, and it would be preferable to set out separately an explanation for each patient, rather than lumping all five items together. A practitioner who does not deal with the five items or addresses some but not all items can expect the CC to order a formal inquiry by a DC.

Another reason why replies should be reasonably thorough is that apart from addressing the issues, they also act as a safeguard for consistency should a formal inquiry by a DC be ordered. In other words, when a practitioner’s explanation at the DC stage is consistent with his explanation at the CC stage, it draws positive inferences of credibility. A short reply at the CC stage followed by a lengthy reply at the DC stage is most likely to lead to nasty allegations and undesirable findings, such as that the response to the DC is tainted with afterthoughts. It would also evince the attitude of the practitioner in not treating the complaint with sufficient seriousness.

Tenor of defence

The second issue with regard to replies is the extent to which a practitioner is entitled to defend himself. Naturally, every practitioner would hope for a dismissal. However, in so hoping, a practitioner may become too robust, and instead of defending himself, he may actually proceed to the offence by attacking the complainant and even making libellous remarks, possibly inviting legal proceedings in defamation. To what extent does the law protect replies of this nature?

In the High Court case of D v Kong Sim Guan [2003] 3 SLR 146, Dr Kong, a psychiatrist, had assessed a child and concluded that there was possible sexual abuse of the child by her father. The father was temporarily denied access to the child pending custody proceedings in the relevant country. The irate father denied any sexual misconduct and hired another psychiatrist to examine the report given by Dr Kong and the interview techniques he had adopted. The psychiatrist for the father gave his own report, concluding that Dr Kong had negligently assessed the child and had further negligently rendered a written report. The father then used this report to complain to the SMC that Dr Kong was incompetent, negligent and partisan towards the child. A CC was appointed and Dr Kong was invited to reply.

Dr Kong gave a thorough reply, and the complaint was dismissed. The father then commenced legal proceedings claiming that Dr Kong’s reply to the CC contained statements defamatory of him. The High Court, however, held that it was satisfied with Dr Kong’s explanations and that it was quite proper for him to include the allegedly defamatory statements. The legal defence of qualified privilege applied, and it was not defeated by malice on the part of Dr Kong, or excessive or irrelevant words by Dr Kong.

Lawyers are well aware that in law, the defence of qualified privilege applies when a person making a communication has a duty or an interest in so making and the recipient has a reciprocal duty or interest in so receiving. The reply by Dr Kong was given out of a legal duty or interest, and the CC had a corresponding duty or interest in receiving it. Hence, the privilege applied. Lawyers also know that in law, the privilege is defeated if the publication was made with malice or if it contains irrelevant or excessive words. Malice, as we all know, in a nutshell means a dominant intention, motive or desire to injure or hurt. On the facts, the High Court held that Dr Kong had not given his reply out of malice, as he was merely defending his reputation. The High Court also found that his reply was relevant and not excessive.

What a practitioner should note is that his reply to a CC is protected by qualified privilege because in all instances of a reply, there would be a duty/interest in giving it and a corresponding duty/interest by the CC in receiving it. But that is not the end of the matter, for although a reply to a CC is privileged, a practitioner who is malicious in his reply or writes irrelevant matter or includes excessive matter would have defeated the privilege afforded to him in law. His response, then, could well become the subject of potential litigation.

One then asks how malicious, excessive and/or irrelevant publication ought to be excluded. This would depend on the facts, but is also a moot question in that this exercise will not even arise in view of the further findings of the High Court in Dr Kong’s case.

In that case, Dr Kong had also raised absolute privilege on top of qualified privilege. Absolute privilege, as lawyers know, means full immunity from suit, even if the publication was made out of malice, or contained irrelevant and/or excessive matter. This is a blanket privilege given by the law in a few defined situations. For example, statements made in the course of judicial proceedings are absolutely privileged.

However, could communications to a CC be regarded as absolutely privileged? Dr Kong had argued, and it was accepted, that CCs of the SMC, which are quasi-judicial in nature, perform a function akin to a court of law and hence, all statements to it are immune from suit, regardless of the quality of 
the statements.

The High Court held that a CC is akin to a court of law because: (a) it is appointed by statute;¹¹ (b) the questions which a CC looks into are much in common with judicial proceedings in a court of law; (c) the procedure adopted by a CC is sufficiently akin to the 
procedure adopted by a court of law; and (d) the decisions of a CC carry legally binding consequences.

The High Court went further to state that a reply by a medical practitioner to a CC is a necessary step in the administration of justice, in the sense that the step is necessary to the adjudication by the SMC of the complaint. Such steps have been known in law to enjoy absolute immunity from suit, and hence on this reasoning, a reply to the CC is also absolutely privileged.

It would be appropriate at this stage to quote a passage from the judgment of Dr Kong’s case for practitioners who have some reservation in taking a robust approach in defending their names:

When a practitioner is called upon by the Complaints Committee to give his explanation to a complaint that has been made against him, the practitioner gives that explanation in order to defend himself and in the knowledge that the complaint and his explanation may well be referred to a Disciplinary Committee where he will be cross-examined on that explanation. It would, in my view, be somewhat illogical if the practitioner had the benefit of absolute privilege in respect of that explanation at the Disciplinary Committee stage but denied that privilege in respect of the same explanation at the Complaints Committee stage. Taken in its entirety, the exercise by the SMC of its disciplinary functions are sufficiently similar to proceedings in a court of law for absolute privilege to attach to the explanation given by Dr Kong to the Complaints Committee. The defence of absolute privilege raised in this case is therefore a complete answer to the claims in defamation brought against Dr Kong … .¹²

Findings of a Complaints Committee

After inquiring into a complaint, the CC must decide whether a formal inquiry is necessary or not, and make appropriate orders. If a CC is of the view that a formal inquiry is not necessary, it must make one of the following orders:¹³

1   an order that the practitioner concerned be issued with a letter of advice;

2   an order that the registered medical practitioner be warned;

3   an order that the complaint or matter be dismissed; or

4   make such other order as it thinks fit.

If a CC is of the view that a formal inquiry by a DC is necessary, it must so order.¹⁴ A DC will then be appointed immediately by the SMC to hear and investigate the complaint.¹⁵

Although a DC must be appointed immediately to hear the complaint, in practice, the failure to do so will be treated as an irregularity if there is no substantial prejudice to the practitioner concerned. This was so held in Dr Tan’s case.

In that case, a DC was formed some nine months after the CC had completed its findings, and the Court of Appeal held that the delay was indeed inordinate. It also noted that the Act was silent as to the consequences of delay so that the common law position would apply. The common law position is that the highest consideration is to be given to the prejudice suffered by a person as a result of an inordinate delay.

On the facts, it was found that Dr Tan had not suffered any prejudice. For example, there was no delay in him having to tender evidence. The Court of Appeal then held that the breach was a mere irregularity which of itself was not sufficient to nullify or set aside the decision of the CC. This decision is correct because the term ‘immediate’ should be treated with some flexibility in any event.

Once an order is made by a CC, it must immediately inform the SMC of its order and the findings made.¹⁶ Both the practitioner concerned as well as the complainant must be notified of the CC’s decision.¹⁷ If the decision was that no formal inquiry was necessary, then the CC must give the practitioner and the complainant its reasons for making the appropriate order.

In Dr Tan’s case, it was argued that the charges framed against him were different from the concerns raised in the complaint by the President of the SMA. In his reply to the CC, Dr Tan had confined himself to the President’s complaint, although there was some tangential reference to advertisement and promotion. Dr Tan, therefore, argued that he was not given enough time to address the issues of advertisement and promotion in his reply to the CC, and further that when the SMC served on him the notice of inquiry containing the two extraneous charges, he was substantially prejudiced. The Court of Appeal accepted this argument, and held that the principle of audi alteram partem applied, that is, no person shall be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard.

Appeal Against the Orders of a Complaints Committee¹⁸

If the CC takes the view that a formal inquiry is not necessary and thus makes the appropriate order, then both the practitioner concerned and the complainant who is dissatisfied with the order may lodge an appeal. The appeal must be lodged within 30 days from the date of notification of the order. There is no right to appeal if the order by the CC was that a formal inquiry by a DC is necessary.

An appeal must be lodged with the Minister for Health. On appeal, the Minister for Health may either affirm the order by the CC or, if he disagrees with the CC, make an order directing the SMC to immediately appoint a DC to hear and investigate the matter. The Minister may also make any other order he thinks fit. The Minister’s decision is final.

The Act does not state how the Minister is to approach an appeal. As no statutory principles or guidance exist, it would appear that the Minister has unfettered discretion to consider the merits of an appeal in any manner he deems fit; but such unfettered discretion would still be subject to the Wednesbury’s principles (illegality, irrationality and procedural impropriety).

Appeals to the Minister for Health are rare, but have occurred. For example, in the case of Dr Kong, the unhappy father had appealed against the CC’s decision to dismiss his complaint. The Minister upheld the decision of the CC.

Recourse can be had to a court of law, as was done by Dr Tan; but such recourse is limited in that an application to the court can only be made for judicial review. Such applications are made before the High Court, which can only review the decision making process on the ground that there was a lack of compliance with the Wednesbury’s principles, and not the quality of the decision itself.

A breach of the Wednesbury’s principles was asserted in In the matter of an application under the Medical Registration Act [1993] SGHC 295. In that case, a father had complained about the conduct of certain doctors in Mount Elizabeth Hospital who had treated his son. Two doctors from the hospital were found guilty of the charges preferred. Charges against five other specialists were dropped in the course of the inquiry. Prior to the commencement of inquiry, and on the request of the father, the Quality Assurance Committee (‘QAC’) of the Medical Advisory Board of Mount Elizabeth Hospital tendered to the father their report which revealed only one critical shortcoming in the management of the son. The father then lodged a complaint to the Council, and the Preliminary Proceedings Committee (‘PPC’; the predecessor to the Complaints Committee) took the view that a full inquiry by the Council was in order.

The applicants, members of the QAC, applied to the High Court to quash the decision of the PPC on the ground that its decision to refer to the Council for a full inquiry was unreasonable and irregular because no body of men would have made that decision on the facts of the case, and because there was no attempt on their part to cover up any deficiencies in the management of the son. The High Court held that it was not unreasonable or irregular for the PPC to refer to the Council for a full inquiry when on the face of it, the complaint that deficiencies in the management were glossed over in the report was quite valid, notwithstanding that two doctors were already dealt with and the charges against five others were withdrawn, which in any event, would have been taken into account by the Council in its full inquiry.

It may be that reviewing the decision making process would also eventuate in a review of the decision itself, either wholly or partially as the case may be, on account of the factual nexus between the exercise of both such reviews. This is readily observable in Dr Tan’s case. There, the decision by the Court of Appeal that the CC went outside its scope in investigating matters extraneous to the complaint lodged ended up impacting the very decision of the CC itself.

Conclusion

It is hoped that this article sheds some light on the law and procedure involved in disciplinary proceedings before the Complaints Committee of the SMC.

Deepak Raja

KhattarWong

E-mail: [email protected]

Notes

1   Section 40(1) Medical Registration Act (‘the Act’).

2   Section 40(2) of the Act.

3   Section 41(5) of the Act.

4   Supra.

5   Section 40(3) of the Act.

6   Section 40(5) of the Act.

7   Section 40(6) of the Act.

8   See article in the November 2005 issue of the Singapore Law Gazette entitled ‘The Legal Assessor in a Medical Disciplinary Inquiry’.

9   Or more if the CC deems appropriate (as permitted by s 40(7) of the Act); in practice, 21 days are usually given, which is the minimum period prescribed by s 40(7) of the Act.

10  Section 40(8) of the Act.

11  The Act.

12   At para 111 of the judgment.

13   Section 41(1)(a) of the Act.

14   Section 41(1)(b) of the Act.

15   Section 41(3) of the Act.

16   Section 41(9) of the Act.

17   Section 41(5) of the Act.

18   Sections 41(6) to 41(8) of the Act deal with appeals.