Case Details
- Citation: [2019] SGHC 205
- Title: Singapore Medical Council v BXR
- Court: High Court of the Republic of Singapore
- Date of Decision: 04 September 2019
- Case Number: Originating Summons No 14 of 2018
- Judges: Andrew Phang Leong JA; Steven Chong JA; Belinda Ang Saw Ean J
- Coram: Andrew Phang Leong JA; Steven Chong JA; Belinda Ang Saw Ean J
- Plaintiff/Applicant: Singapore Medical Council
- Defendant/Respondent: BXR
- Legal Area: Professions — Medical profession and practice (professional conduct); Civil Procedure — Costs
- Procedural History: Appeal by the SMC solely against the Disciplinary Tribunal’s costs order following the acquittal of the respondent on all charges
- Tribunal/Court Below: Disciplinary Tribunal (SMC disciplinary proceedings)
- Underlying Disciplinary Decision: Singapore Medical Council v Dr R [2018] SMCDT 7 (“GD”)
- Decision on Appeal: Appeal dismissed; costs order against the SMC upheld
- Counsel for Applicant: Chia Voon Jiet, Koh Choon Min and Sim Bing Wen (Drew & Napier LLC)
- Counsel for Respondent: Lek Siang Pheng, Melvin See Hsien Huei and Toh Cher Han (Dentons Rodyk & Davidson LLP)
- Statutes Referenced: Medical Registration Act (Cap 174, 2014 Rev Ed); Singapore Medical Council Ethical Code and Ethical Guidelines (2002 edition); Supreme Court of Judicature Act
- Key Issue on Appeal: Whether the Disciplinary Tribunal erred in ordering costs against the SMC after acquitting the respondent
- Length of Judgment: 14 pages; 8,376 words
Summary
Singapore Medical Council v BXR [2019] SGHC 205 concerned an appeal by the Singapore Medical Council (“SMC”) against a Disciplinary Tribunal (“DT”) costs order made after the respondent, Dr BXR, was acquitted of all charges brought by the SMC. The High Court held that, on the facts, the DT was correct to order costs against the SMC in favour of the respondent, despite the general principle that costs in civil proceedings follow the event.
The decision is best understood as a costs-focused application of the High Court’s earlier guidance in Ang Pek San Lawrence v Singapore Medical Council [2015] 2 SLR 1179 (“Lawrence Ang”). While the SMC performs a public and regulatory function in disciplinary proceedings, that factor does not automatically immunise it from adverse costs. The weight to be given to the SMC’s regulatory role depends on other considerations, including whether the SMC’s decision to bring charges was made honestly, reasonably, and on grounds that reasonably appeared to be sound in the exercise of its public duty.
What Were the Facts of This Case?
The respondent, Dr BXR, was a specialist in plastic surgery who practised at his own clinic. Between 5 January 2008 and 24 August 2013, he treated a patient (“the Patient”) for enlarged parotid glands using botulinum toxin injections (commonly known as “botox”). The treatment was successful in reducing the Patient’s parotid glands substantially.
On 7 April 2014, the Patient lodged a complaint alleging that the respondent had used her confidential medical information and unanonymised photographs without her consent. The complaint extended to the respondent’s publication activities: the Patient alleged that her information and photographs were used in a chapter of his book and in at least two medical presentations. The SMC’s Complaints Committee invited the respondent to provide an explanation by letter dated 9 October 2014, and the respondent responded on 11 December 2014.
A central factual feature was the respondent’s position that he had obtained the Patient’s consent for the use of her photographs and for describing her case in medical publications and presentations. At the time relevant to the charges, the SMC was aware that during a consultation on 4 August 2008, the Patient had signed a written statement authorising the respondent to use her photos in medical/scientific publications and to describe her case. This “Written Statement” was recorded in the respondent’s case notes and formed the basis of the respondent’s case that consent existed and was not withdrawn.
Despite this, the SMC issued a Notice of Inquiry on 25 May 2017, almost two and a half years after the respondent’s written explanation. The Notice of Inquiry set out five charges under s 53(1)(d) of the Medical Registration Act (“MRA”), largely framed around alleged failures to maintain clear and accurate medical records and alleged failures to obtain informed consent for the use of the Patient’s photographs and medical information in publications and presentations. The charges included alternative formulations (such as serious negligence amounting to an abuse of the privileges accompanying registration) and multiple time periods and categories of information (related and unrelated to the enlarged parotid glands condition).
What Were the Key Legal Issues?
The appeal was not a re-trial of the merits of the disciplinary charges. The High Court was concerned solely with whether the DT erred in ordering costs against the SMC after acquitting the respondent. In other words, the legal issue was the proper approach to costs in medical disciplinary proceedings, particularly where the SMC’s public regulatory function is in play.
More specifically, the SMC argued that the DT wrongly treated “costs follow the event” as the starting point, and that the burden should instead be on the respondent to justify why costs should be ordered against the SMC. The SMC also contended that the DT failed to afford parties an opportunity to make submissions on costs, and that the DT did not properly account for the fact that the matter had been referred by the Complaints Committee—an alleged reason against ordering the SMC to pay costs. Finally, the SMC argued that it had acted honestly, reasonably, and in good faith in instituting proceedings.
On the respondent’s side, the argument was that the DT had the implied ancillary power under the MRA to order costs against the SMC if it dismissed the charges, and that the DT correctly applied the relevant principles. The respondent’s position also relied on the evidential and factual context: the DT’s findings on consent and on the evidential weaknesses in the SMC’s case were said to justify an adverse costs order.
How Did the Court Analyse the Issues?
The High Court began by situating the case within the framework established in Lawrence Ang. In Lawrence Ang, the court recognised that while costs typically follow the event in ordinary civil proceedings, that principle must be balanced against the distinctive nature of medical disciplinary proceedings. The SMC is not merely a private litigant; it performs a public and regulatory function. Therefore, an adverse costs order should not automatically follow an acquittal simply because the SMC’s disciplinary case did not succeed.
However, the High Court emphasised that the regulatory function does not operate as an absolute shield. The degree of weight to be placed on the SMC’s public role depends on other factors, including whether the decision to bring charges was made honestly, reasonably, and on grounds that reasonably appeared to be sound in the exercise of its public duty. This approach ensures that the SMC remains able to discharge its regulatory mandate without undue fear of costs consequences, while also preventing the disciplinary process from being used in a manner that undermines fairness to practitioners.
Applying these principles, the High Court noted that the DT had acquitted the respondent on all charges and had found that the Patient’s consent had been obtained and recorded in writing. The DT’s factual findings were significant for the costs analysis. The DT found that on 4 August 2008, the respondent had obtained the Patient’s informed consent to use her unanonymised photographs and medical information in medical and/or scientific publications and presentations. The DT further found that the consent was recorded in writing in the respondent’s case notes in a manner that satisfied the standard observed or approved by members of the medical profession of good repute and competency. Critically, the DT found that the Patient had neither revoked nor modified her consent until an email dated 22 September 2013.
Beyond the consent finding, the DT identified evidential gaps that were relevant to whether the SMC’s charges were reasonably grounded. First, the DT observed that there was no objective evidence supporting the Patient’s claims about additional oral assurances allegedly given by the respondent—such as assurances that the respondent would blank out her eyes or use only photographs showing her face from the nose downwards, that he would only use information describing her enlarged parotid glands condition, and that he would only use photographs and information in a single medical paper. The SMC’s reliance on testimony alone, without objective corroboration, contributed to the DT’s doubts.
Secondly, the DT found a lack of documentary evidence supporting the existence and details of the alleged presentations. The SMC could not pinpoint with specificity when or where the alleged presentations took place. The DT therefore expressed serious doubts as to whether those presentations existed at all. Even at its highest, the SMC’s case on the presentations depended on the respondent’s recollection of conferences where he allegedly presented the Patient’s case. These findings mattered because they suggested that the SMC’s disciplinary case may not have been anchored in sufficiently concrete evidence, at least on the aspects that were central to the charges.
In addressing the DT’s costs reasoning, the High Court accepted that the DT had correctly identified the implied ancillary power to order costs in disciplinary proceedings. The DT had cited Lawrence Ang for the proposition that costs orders serve an important function: incentivising appropriate conduct in litigation and discouraging behaviour that impedes the administration of justice. The DT also relied on the principle that costs ought to follow the event, and it applied that principle to the circumstances of the case.
On the SMC’s specific complaints, the High Court agreed with the DT that, on these facts, costs were rightly ordered against the SMC. While the SMC argued that it had acted honestly and reasonably, the High Court’s acceptance of the DT’s approach indicates that the evidential weaknesses and the DT’s findings on consent and the absence of objective support for key allegations were sufficient to justify an adverse costs order. The decision therefore reflects a pragmatic balance: the SMC’s regulatory role is important, but it does not override the need for fairness where the disciplinary case is not supported by adequate evidence or where the charges fail on core factual issues.
What Was the Outcome?
The High Court dismissed the SMC’s appeal. As a result, the DT’s order that the SMC pay costs to the respondent remained in place. Practically, the decision confirms that adverse costs orders can be made against the SMC even in medical disciplinary proceedings, particularly where the charges are not supported by objective evidence and where the practitioner is acquitted on the substance.
The outcome also underscores that appeals against costs orders in disciplinary contexts will turn on whether the DT correctly applied the Lawrence Ang framework and whether the factual matrix justifies departing from any perceived presumption of protection for the SMC.
Why Does This Case Matter?
Singapore Medical Council v BXR is significant for practitioners because it clarifies how the “public regulatory function” of the SMC interacts with the general costs principle. The case reinforces that Lawrence Ang does not create a categorical rule that the SMC should never face adverse costs. Instead, the SMC’s regulatory role is a factor to be weighed, and the weight given to it depends on the reasonableness and evidential foundation of the SMC’s decision to bring charges.
For medical practitioners and their counsel, the decision highlights the importance of evidential record-keeping and consent documentation. The DT’s findings that the Patient’s consent was recorded in writing and not revoked until later were central to the acquittal and, indirectly, to the costs outcome. Practitioners should therefore treat consent forms, contemporaneous case notes, and documentation of publication/presentation permissions as critical not only for substantive liability but also for defending disciplinary proceedings.
For the SMC and for lawyers advising it, the case serves as a caution that disciplinary charges must be grounded in sufficiently concrete evidence, particularly where allegations concern specific publications or presentations. Where the SMC cannot identify dates, venues, or documentary support for key allegations, the risk of an adverse costs order increases. The decision also signals that costs orders may be used to incentivise litigation discipline and discourage proceedings that do not adequately respect the fairness of the process.
Legislation Referenced
- Medical Registration Act (Cap 174, 2014 Rev Ed), in particular s 53(1)(d)
- Singapore Medical Council Ethical Code and Ethical Guidelines (2002 edition), including Guideline 4.1.2
- Supreme Court of Judicature Act
Cases Cited
- Ang Pek San Lawrence v Singapore Medical Council [2015] 2 SLR 1179
- Singapore Medical Council v Dr R [2018] SMCDT 7
- Singapore Medical Council v BXR [2019] SGHC 205
Source Documents
This article analyses [2019] SGHC 205 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.