Case Details
- Citation: [2017] SGHC 294
- Title: JEN SHEK WEI v SINGAPORE MEDICAL COUNCIL
- Court: High Court of the Republic of Singapore
- Date: 13 November 2017
- Originating Summons: Originating Summons No 3 of 2017
- Judges: Andrew Phang Boon Leong JA, Judith Prakash JA and Steven Chong JA
- Applicant/Appellant: Jen Shek Wei (Dr Jen), registered medical practitioner (gynaecologist)
- Respondent: Singapore Medical Council (SMC)
- Legislative Provision in Issue: Section 55(1) of the Medical Registration Act (Cap 174)
- Charges: Two charges of professional misconduct under s 53(1)(d) of the Medical Registration Act (Cap 174, 2014 Rev Ed)
- Charge 1 (substance): Advising surgery to remove a pelvic mass without conducting further evaluation and investigation when further assessment was warranted; characterised as serious negligence
- Charge 2 (substance): Performing a left oophorectomy without obtaining informed consent; characterised as an intentional, deliberate departure from standards observed or approved by members of the profession of good repute and competence
- Ethical Guidelines Referenced: 2002 edition of the SMC Ethical Code and Ethical Guidelines (ECEG), including Guideline 4.2.2
- Disciplinary Tribunal (DT): DT constituted by the SMC
- DT’s Sentence: Suspension for 8 months; fine of $10,000; censure; written undertaking to SMC; costs and expenses of disciplinary proceedings including SMC’s solicitors’ costs
- Appeal Type: Appeal against conviction, and in the alternative, against sentence
- Judgment Length: 76 pages; 23,412 words
- Cases Cited (as provided): Low Cze Hong v Singapore Medical Council [2008] 3 SLR(R) 612; and the case itself [2017] SGHC 294
Summary
In Jen Shek Wei v Singapore Medical Council ([2017] SGHC 294), the High Court considered an appeal by a gynaecologist against convictions by a Disciplinary Tribunal (DT) for professional misconduct under s 53(1)(d) of the Medical Registration Act (Cap 174). The convictions related to two distinct aspects of the doctor’s management of a patient: first, the advice to proceed with surgery to remove a pelvic mass without conducting further evaluation and investigation; and second, the performance of a left oophorectomy without obtaining the patient’s informed consent.
The court approached the case through the analytical framework established in Low Cze Hong v Singapore Medical Council, which recognises two “limbs” for professional misconduct under s 53(1)(d): (i) serious negligence that objectively portrays an abuse of the privileges accompanying registration; and (ii) an intentional, deliberate departure from standards observed or approved by members of the profession of good repute and competence. Applying that framework, the High Court upheld the DT’s findings on both charges and dismissed the appeal against conviction. It also affirmed the sentence imposed by the DT.
What Were the Facts of This Case?
The patient first consulted Dr Jen in June 2010 about difficulties conceiving. She was 34 years old and attended follow-up consultations on 19 June, 29 June and 27 July 2010. Dr Jen commenced fertility treatment involving Clomid. The disciplinary proceedings, however, concerned events that began after the patient was referred to Dr Jen by an orthopaedic surgeon, Dr Tay, in late August 2010.
On 27 August 2010, the patient reported “very bad backache” to Dr Tay. X-rays and an MRI scan were taken of her spine. The radiologist, Dr Esther Tan, reported on 28 August 2010 that the X-ray suggested a “lobulated soft tissue density in the pelvis” raising suspicion of a mass, and that the MRI suggested a “septated cystic mass in the pelvis anterior to the sacrum” which might be ovarian in origin. Dr Tay advised further evaluation of the pelvic mass and referred the patient to a gynaecologist. On 30 August 2010, Dr Tay provided a handwritten referral letter requesting that Dr Jen “see and manage” the patient, noting the backache and right sciatica and the MRI findings.
On 30 August 2010, the patient consulted Dr Jen accompanied by her husband. Dr Jen reviewed the referral letter and radiology report and performed a transvaginal ultrasound scan. The DT accepted that the scan revealed lumps in both ovaries. It was undisputed that Dr Jen performed a right cystectomy and a left oophorectomy during the operation. The disciplinary charges, and the appeal, focused on the left oophorectomy.
What transpired during the consultation was disputed. The DT accepted the patient’s account over Dr Jen’s. According to the patient, Dr Jen advised that the lumps should be removed as soon as possible because the mass was “quite huge” and there “may be a cancer.” Dr Jen’s account was broadly similar in diagnosis: he said the mass was a suspicious complex mass, probably arising from the ovary, with uneven walls and irregular septa indicating a higher risk of malignancy, particularly in light of the patient’s history of severe back pain. Dr Jen also said it was best to remove the mass for histological examination to confirm the diagnosis.
Dr Jen offered procedural options. He discussed keyhole surgery (laparoscopy) versus open surgery (laparotomy). He explained that keyhole surgery involved removing the mass through a small incision but carried a risk that if the mass were cancerous, cancer cells could spread. Open surgery involved a larger incision to remove the mass. The patient and her husband chose open surgery, expressing concern about the risk of spreading cancerous cells.
Dr Jen also discussed the possibility of having a pathologist present in the operating theatre to perform a “frozen section” during the operation. The purpose was to allow immediate assessment of whether the mass was cancerous, enabling further surgical steps if needed. The patient’s understanding, as reflected in the DT’s findings, was that the frozen section test would be highly accurate (described as 99.9% accurate). If the pathologist were not present, the mass would be sent for laboratory testing with results expected in two to three days, after which the patient could decide on further treatment. The patient and her husband opted not to have the pathologist present, preferring post-operative laboratory testing.
The operation was scheduled for 31 August 2010 at Mount Alvernia Hospital (MAH). The patient later discovered that her left ovary had been removed. She filed a complaint with the Singapore Medical Council, which led to the disciplinary proceedings and the DT’s eventual convictions on two charges.
What Were the Key Legal Issues?
The appeal raised several legal questions, but they can be grouped into two main issues corresponding to the two charges. First, for the “serious negligence” charge, the court had to determine whether the DT was correct to find that Dr Jen advised surgery without conducting further evaluation and investigation when further assessment was warranted, and whether that failure amounted to serious negligence objectively portraying an abuse of the privileges of registration.
Second, for the “informed consent” charge, the court had to decide whether Dr Jen obtained the patient’s informed consent before performing the left oophorectomy. This required an assessment of the sufficiency of the patient’s signature on a consent form, whether other evidence demonstrated informed consent, and whether Dr Jen’s conduct amounted to an intentional, deliberate departure from professional standards.
In addition, the appeal involved specific factual and evidential disputes. Dr Jen argued, among other things, that the DT erred in finding that he did not offer any treatment option apart from surgery, that the DT failed to recognise that he carried out evaluation through a transvaginal ultrasound, and that the DT incorrectly rejected his defence based on sciatica. The court also had to consider whether Dr Jen’s conduct, taken as a whole, met the threshold for “serious negligence” under the professional misconduct framework.
How Did the Court Analyse the Issues?
The High Court began by setting out the legal framework for professional misconduct under s 53(1)(d) of the Medical Registration Act, drawing on Low Cze Hong. The court emphasised that professional misconduct could be made out under two limbs. The first limb concerns serious negligence: the negligence must be serious and must objectively portray an abuse of the privileges accompanying registration. The second limb concerns intentional departure: the conduct must involve an intentional, deliberate departure from standards observed or approved by members of the profession of good repute and competence.
On the first charge, the court examined whether Dr Jen’s advice to proceed with surgery was supported by adequate evaluation and investigation. The DT had found that Dr Jen did not conduct further evaluation and investigation of the patient’s condition, even though further assessment was warranted. Dr Jen’s appeal challenged this characterisation. He argued that he did conduct evaluation, including by performing a transvaginal ultrasound, and that the DT erred in concluding that he offered no treatment option other than surgery.
The court’s analysis focused on whether the steps taken by Dr Jen were sufficient in the circumstances, and whether the omission identified by the DT amounted to serious negligence. The court accepted that the patient had a pelvic mass suggested by imaging and that Dr Jen performed a transvaginal ultrasound. However, the court upheld the DT’s conclusion that further evaluation and investigation were warranted before advising surgery to remove the mass. The court treated the failure to carry out such further assessment as falling within the “serious negligence” limb, noting that the standard is objective and linked to the abuse of professional privileges.
In addressing Dr Jen’s arguments, the court also dealt with the evidential disputes about what was discussed and what options were offered. The DT had accepted the patient’s version of events. The High Court, while not simply deferring to the DT, reviewed the reasoning and found no error in the DT’s approach. The court also considered Dr Jen’s defence based on sciatica, but it did not accept that this undermined the DT’s findings on the adequacy of evaluation and investigation. The court’s reasoning indicates that even where symptoms might have alternative explanations, the presence of imaging findings suggesting a pelvic mass required appropriate clinical assessment before proceeding.
On the second charge, the court turned to informed consent. The DT had found that Dr Jen performed the left oophorectomy without obtaining the patient’s informed consent, in breach of Guideline 4.2.2 of the 2002 ECEG. The High Court therefore had to evaluate whether the patient’s signature on the consent form was sufficient to demonstrate informed consent, and whether other evidence showed that the patient understood the nature and risks of the procedure, including the possibility of removal of the ovary.
The court analysed the evidence relied upon by the parties. The record included, among other things, a radiologic report by Dr Esther Tan, case notes, an admission letter to MAH and oral testimony from MAH staff, MAH documentation, and Dr Jen’s own oral testimony contrasted with the patient’s account. The court also considered the patient’s understanding of the surgical plan and the frozen section option. The DT had concluded that the patient did not give informed consent for the left oophorectomy, and that Dr Jen’s conduct amounted to an intentional, deliberate departure from professional standards.
Informed consent in medical practice is not merely a matter of obtaining a signature. The High Court’s reasoning reflects that the consent must be informed in the sense that the patient must be adequately apprised of what is proposed and the material risks and implications. Where the evidence shows that the patient’s understanding differs from what was actually done, and where the consent process does not align with the ethical guideline requirements, the court may uphold a finding of professional misconduct.
Finally, the court addressed whether there was an intentional departure from the applicable standard of conduct. This required the court to consider whether Dr Jen’s conduct was deliberate and whether it fell below the standards expected of competent and reputable practitioners. The court upheld the DT’s conclusion that the breach was not inadvertent and that it satisfied the second limb under Low Cze Hong.
What Was the Outcome?
The High Court dismissed Dr Jen’s appeal against conviction. It upheld the DT’s findings on both charges: (i) serious negligence in advising surgery without adequate further evaluation and investigation; and (ii) performing the left oophorectomy without informed consent, amounting to an intentional, deliberate departure from professional standards.
In the alternative, the court also affirmed the sentence imposed by the DT. The practical effect was that Dr Jen remained subject to the DT’s disciplinary orders: suspension for eight months, a fine of $10,000, censure, a written undertaking to the SMC not to engage in similar conduct, and liability for the costs and expenses of the disciplinary proceedings, including the SMC’s solicitors’ costs.
Why Does This Case Matter?
This decision is significant for practitioners because it reinforces two core themes in Singapore medical disciplinary law. First, it illustrates that the “serious negligence” limb under s 53(1)(d) is assessed objectively and is not satisfied merely by the performance of some diagnostic step. Where imaging suggests a potentially serious condition, the court expects clinicians to undertake appropriate evaluation and investigation before advising invasive treatment. The case therefore serves as a caution against proceeding to surgery without a defensible clinical pathway for assessment.
Second, the case underscores that informed consent is a substantive ethical and legal requirement. A signed consent form will not automatically insulate a practitioner if the consent process does not demonstrate that the patient understood the material aspects of the procedure and its implications. The court’s approach to evidence—contrasting patient understanding, clinical documentation, and oral testimony—highlights that consent disputes are often fact-intensive and will be resolved by careful scrutiny of the overall record.
For law students and legal practitioners, Jen Shek Wei is also useful as an example of how the High Court applies the Low Cze Hong framework to medical disciplinary findings. It demonstrates the court’s method of mapping the DT’s factual findings onto the statutory limbs of professional misconduct, and it shows that appeals against conviction will face a high threshold where the DT’s reasoning is coherent and supported by the evidence.
Legislation Referenced
- Medical Registration Act (Cap 174), s 53(1)(d) [CDN] [SSO]
- Medical Registration Act (Cap 174), s 55(1) [CDN] [SSO]
- Medical Registration Act (Cap 174, 2014 Rev Ed) (as referenced in the judgment)
Cases Cited
- Low Cze Hong v Singapore Medical Council [2008] 3 SLR(R) 612
- Jen Shek Wei v Singapore Medical Council [2017] SGHC 294
Source Documents
This article analyses [2017] SGHC 294 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.