First, a word from our sponsors. The ministerial decision to allow the complainant’s appeal in the celebrated Dr Lawrence Ang case did not arise from the current Minister for Health or DMS. It was probably from the previous administration. Hence, calls for the current Minister and/or DMS to commit hara kiri like “in the good old days” is without any basis, merit or even humour. It’s no longer the “good old days” but the “bad present days”, where people who muck up the whole show for 10 years just walk off into the sunset. Life isn’t fair, get used to it.
We now return to the regular programming of the SMC, which now is more gripping than House of Cards, Game of Thrones and Mr Bean all put together.
A recap of the story so far:
• Patient of Obstetrician & Gynaecologist Dr Lawrence Ang complains to SMC alleging that Dr Ang botched her delivery.
• The SMC Complaints Committee throws out the complaint
• Patient appeals to the Minister
• Minister allows the appeal
• A Disciplinary Committee is convened to hear the case and finds Dr Ang guilty of one of the 4 charges. Dr Ang is to be suspended for several months
• Dr Ang appeals to High Court
• High Court rules in Dr Ang’s favour and for the first time in the history of SMC, awards costs against SMC; i.e. SMC has to pay for Dr Ang’s legal costs
• SMC appeals against the High Court ruling
• High Court throws out the appeal on 5 March 2015
The Judgment issued by the Three Judges of the High Court is highly illuminating, but it’s 35 pages long of super-cerebral stuff. To save you the effort of reading through the entire document, this Hobbit has summarised the key comments and findings as listed below:
What The High Court Said
The attempt of SMC (i.e. the “respondent”) to say that the Courts do NOT have the power to award costs against SMC is wrong
“we (i.e. the judges) consider that the power to order costs is an important salutary power for courts and tribunals. The power should be exercised to incentivise appropriate conduct in litigation and, to that extent, to discourage behaviour that impedes the administration of justice. More importantly, it serves as a safeguard against unnecessary financial prejudice being inflicted on a party to the proceedings by the prosecution of unwarranted litigation. This is equally true in the context of disciplinary proceedings instituted pursuant to the MRA. Medical practitioners charged with misconduct already face the prospect of incurring substantial legal fees to defend themselves. If they are convicted, they may face an adverse costs order on the basis that the costs of having to bring such proceedings should be visited upon the practitioner in such circumstances. But there is no reason to assume that the respondent should enjoy absolute immunity from an adverse costs order”. (Para 27 of the Judgment)
This is especially so when the appeal was allowed without giving reasons. I.e. the decision to grant the appeal was not transparent.
“No reasons were given by the Minister for acceding to the complainant’s appeal despite the conclusions of the Complaints Committee. It is not evident why or how the decision of the Complaints Committee was considered to be unsatisfactory. For the respondent to press for immunity from an adverse costs order in such circumstances seems to us to be indefensible.” (para. 29)
It is questionable if the appeal was even allowed on reasonable grounds
“the determination of the Complaints Committee may be very pertinent in deciding whether to order costs against the respondent. If the Complaints Committee had, as was the case here, dismissed the complaint, and the disciplinary proceedings were instituted pursuant to an unreasoned and unexplained order made by the Minister upon an appeal by the complainant, then the respondent will often be hard pressed to demonstrate a reasonable basis for instituting the proceedings despite the Complaints Committee’s findings”. (para. 56)
The SMC (i.e. the respondent) contributed to some of the errors committed by the Disciplinary Committee by…
“The failure of the respondent to sufficiently particularise the charges and to specify which type of professional misconduct…it was alleging undermined the ability of the Disciplinary Committee to properly evaluate the evidence and safely convict the appellant. Furthermore the Disciplinary Committee’s consideration of extraneous facts presumably arose from the submissions of the respondent as to those facts” (para. 62)
It is time to revisit the law. To put it simply, there are good laws and bad laws. And then there are strange laws. Section 41 (Section 49 under the current version) of the MRA which allows for this appeal process to the Minister is an example of a strange piece of law. It was strangely conceived and drafted. Interestingly, this section was only put into the MRA very recently – in 2010.
Firstly, this process puts the Minister, a politician, in a very difficult, if not impossible position. Currently, if one disagrees with a Disciplinary Committee decision, one can appeal to the High Courts, where professional judges can examine the case with the help of expert witnesses. It is unclear how the Minister came to the conclusion that the appeal is allowed and a Disciplinary Committee should be formed to try this case. It is most unlikely that any Health Minister in his right mind will decide on his own what to do without consulting anyone. If so, who did he consult? What advice was he given? More importantly, who decided on who advises the Minister? Did the Minister just Google the names up? Or check the Yellow Pages? Or did he consult the ultimate professional advisor to the Government on public health and medical matters – the DMS? And if so, what did the then DMS advise?
The Act should be amended so that appeals go through an expert or technical panel and not to a politician. Indeed, this is exactly what the SMC Review Committee has recommended in 2013, that the appeals go to an independent Appeals Committee consisting of doctors and lawyers, rather than the Minister.
Secondly, the people who wanted this appeals process in 2010 probably don’t really trust the people who sit on the Complaints Committee to judge correctly. If not, why have this appeal process to the Minister? But these members of the Complaints Committee are as the High Court Judges have said, “highly qualified medical professionals”. (para. 28).
The current Appeals Process, when successful, is a fast-track route to the Disciplinary Committee stage. The Minister, or the Appeals Committee (If approved), should have the power to order a new and differently constituted Complaints Committee to re-examine the case instead of just going straight to the Disciplinary Committee stage. And because this “free” appeals process is a potential fast-track, many complainants and their lawyers will think it can used as a free or cheap shot to Round 2 (Disciplinary Committee). It undermines the hard work of the members who sit on the Complaints Committees.
It is one thing to argue that based on the circumstances of the case, costs should not be awarded against SMC. And it is an entirely different thing to argue that the Courts have no right to award costs against SMC. What was the SMC thinking? Or rather, what were their lawyers thinking? Such a strategy is at best breathtakingly audacious, at worst, explosively misplaced.
It is no wonder that the Judges devoted some one-third of the Judgment to defending the Courts’ inherent right to award costs. By the way, the word “salutary” implies wholesome; promoting or conducive to some beneficial purpose. I..e the judges are saying that the power to award costs is a wholesome power of the courts that contribute to a beneficial purpose or greater good. And SMC and their lawyers are claiming the Courts do not have any right to award costs against SMC. It is almost “legally embarrassing” all over again.
It is like you could have addressed a problem with a ray amputation (argue on the merits and local circumstances of the case) but instead chose to do an above knee amputation (i.e. argue the courts cannot award damages against SMC).
Humility, Sincerity and Transparency
It has come to this because for a period of time, from 2010 to 2014, no one really knew what happened behind the scenes in SMC in this ‘new’ Appeals Process (since 2010). It is not publicly known why an Appeal is allowed or on what grounds they are allowed. This veil of secrecy has to be lifted. It is against the defending doctor’s interests and now, it is clearly stated that it is against SMC”s interests as well that reasons are not given behind the successful appeal!
The hitherto and misplaced belief that SMC does not ever have to ever pay costs to the defendant has also been a subject of uncomfortable murmurings in many doctors’ tea rooms for a long time. Now the High Court Judgment indirectly acknowledges that this misplaced belief can lead to behavior that does not encourage “appropriate conduct in litigation” and potentially “impedes the administration of justice”.
It is not that these two discomfiting issues are unknown to the people in-charge previously. But such feedback had been brushed aside. Now they are laid bare in this Judgment for all to see.
The next thing is SMC’s lawyers. Clearly, some of them are not up to the mark. Their work had already been described to be “legally embarrassing” previously. Now this. How long must SMC continue to suffer this situation? No one even knows how much are being paid to these lawyers by SMC. They are not cheap, given by what was revealed in the Susan Lim case. Now this is worse, because the profession and the government have to foot not only their bill, but the other lawyer’s bills too (i.e. MPS’ lawyers).
After so many incidents in the last few years, confidence is not just shaken. It is down in the pits. It will take much effort and time to rebuild confidence. Having another Review Committee isn’t going to do much to rebuild or restore confidence. We also do not need another long clarification letter from the President of SMC like the ones dated 16 Dec 2014. So far, the long judgment from the High Court on 5 March 2015 clarifies a lot more than the long SMC letter. Make no mistake, when the SMC suffers on points of law repeatedly, the entire profession suffers; the patients suffer too. And the lawyers get paid (which is not a bad thing if the lawyers do a good job).
We need humility, sincerity and transparency. Only when you are humble can you be sincere. And only with sincerity can there be transparency. Hopefully, the new team in MOH and SMC can demonstrate them.