Case Summaries

Ang Peng Tiam v Singapore Medical Council and another appeal

27 June 2017

 Media Summary

 Ang Peng Tiam v Singapore Medical Council and another appeal

[2017] SGHC 143

 Originating Summonses 8 & 9 of 2016

 Decision of the Court of Three Judges (delivered by Sundaresh Menon CJ)

1     Dr Ang Peng Tiam, a medical oncologist in private practice, was
convicted by a Disciplinary Tribunal (“DT”) appointed by the Singapore Medical Council (“SMC”) of two charges of professional misconduct under s 53(1)(d) of the Medical Registration Act (Cap 174, 2004 Rev Ed). The charges were first, that Dr Ang had made a false representation to his patient, one MT, who had been diagnosed with a variety of cancer, on the chances of her disease responding to his prescribed treatment of chemotherapy and targeted therapy (“the 1st Charge”); and second, that, at the same time, he failed to offer her an alternative treatment option of surgery (“the 2nd Charge”). The DT imposed on Dr Ang an aggregate fine of $25,000 for both charges. Dr Ang appealed against his conviction on both charges, while the SMC appealed for a substitution of the fine imposed with a suspension term of at least six months for each of the two charges.

Background to the appeal 

2     MT first consulted Dr Ang at his clinic on 30 March 2010, after investigations at a public hospital indicated that she might be suffering from lung cancer. Dr Ang had MT undergo blood tests and some scans, but he did not order a test to determine whether MT had a mutation for the epidermal growth factor receptor (“EGFR”).

3     MT attended a consultation with Dr Ang again on 31 March 2010 to review the test results. Dr Ang explained to MT that the scans suggested that she had a large and fast-growing tumour, and told her to undergo a biopsy to confirm whether or not the mass was cancerous. This was done later that day.

4     When MT saw Dr Ang for the third time on 1 April 2010, he informed her that she was suffering from cancer. He recommended that MT undergo chemotherapy using gemcitabine and cisplatin, together with targeted therapy using a tyrosine kinase inhibitor (“TKI”) named gefitinib. It was not disputed that Dr Ang told MT that “there was at least a ‘70% chance’ that [her] disease would respond to treatment and achieve control” with his prescribed therapy of “chemotherapy and/or targeted therapy” (“the Statement”), and that such assessment was premised on MT (a) being Chinese; (b) being female; (c) being a “never-smoker”; and (d) having her tumour diagnosed as adenocarcinoma (“the four phenotypes”).

5     MT underwent the treatment prescribed by Dr Ang but her disease progressed and she passed away in October 2010.

6     On 15 December 2010, MT’s daughters lodged a complaint (“the Complaint”) to the SMC in respect of Dr Ang’s treatment of MT. On 27 June 2011, the SMC’s Complaints Committee (“CC”) wrote to Dr Ang notifying him of the Complaint and requesting his written explanation. Dr Ang provided his explanation on 19 July 2011; but it was not till 2 May 2012 that he received a letter from the CC notifying him of its decision to refer the matter to a formal inquiry. Further delays ensued, and a Notice of Inquiry (“NOI”) specifying four charges of professional misconduct was served on Dr Ang only on 22 April 2015. The inquiry before the DT subsequently took place and on 12 July 2016, the DT acquitted Dr Ang on two of the charges but convicted him on the remaining two. It delivered its verdict on sentence on the same day.

The issues 

7     The SMC did not allege that Dr Ang had been negligent or that his treatment of MT was inappropriate, or that MT’s outcome would have been different had it not been for Dr Ang’s professional misconduct. Both charges were brought on the basis that by committing the acts alleged (namely, making a false representation to MT and failing to offer MT the treatment option of surgery), Dr Ang had intentionally and deliberately departed from standards observed or approved by members of the profession of good repute and competency. In considering Dr Ang’s appeal against conviction, the court thus had to determine whether the SMC had proved that Dr Ang had committed the acts alleged, and also that he had, by doing those acts, intentionally and deliberately departed from the applicable standards.

 
8     As for the SMC’s appeal against sentence, the court had to consider the SMC’s contention that the DT had accorded too much mitigating value to the alleged delay by SMC in instituting the proceedings against Dr Ang, and also to testimonials attesting to Dr Ang’s professionalism and his contributions to the community. The SMC also argued that Dr Ang’s seniority and eminence was an aggravating factor that the DT failed to take into sufficient consideration.

 

The court’s decision

 
9     With respect to the 1st Charge, the court held that whether the representation was false depended on whether there was a reasonable basis for it to have been made, based on the state of knowledge of the doctor in question, and also of scientific knowledge in general, at the time when the representation was made, which, in this case, is 1 April 2010.

 

10     The court found that Dr Ang did not have a reasonable basis for making the Statement and that it was, accordingly, false. There was no scientific evidence that a disease response rate of 70% was achievable in patients like MT on receiving the same treatment that Dr Ang prescribed for her. While counsel for Dr Ang cited some studies, they only reported general data that was not correlated either to the specific chemotherapy drugs that Dr Ang prescribed for MT, or to the four phenotypes that MT presented with. Some of the other studies cited had design limitations, while others simply did not bear out the 70% favourable response rate. At the same time, there was scientific literature that when patients presenting with the four phenotypes were treated with gefitinib, those who tested positive for EGFR mutation had a disease response rate of 71.2%, whereas those who did not have the mutation only had a disease response rate of 1.1%. Since Dr Ang did not order an EGFR mutation test for MT, her EGFR mutation status was unknown, and there was therefore no reasonable basis for him to have made the Statement.

 
11     
The court therefore concluded that Dr Ang had, in making the Statement, made a false representation. It also found that Dr Ang, by making a representation intentionally for which he either knew or ought to have known there was no basis, had intentionally and deliberately departed from the standards observed or approved by members of the profession of good repute and competency. Accordingly, the court upheld Dr Ang’s conviction on the 1st Charge.  

12     As for the 2nd Charge, Dr Ang did not challenge, on appeal, the DT’s finding that he had not mentioned the option of surgery to MT on 1 April 2010. He was also aware that the guidelines applicable at the relevant time prescribed surgery as the preferred initial treatment option for patients who were suffering from the same stage of cancer as MT. The thrust of his appeal was that he was not required to offer MT the option of surgery, because he had assessed that surgery was not a viable treatment option for her and the preferred course was for her to receive chemotherapy instead.

 

13     The court agreed that a doctor should evaluate the pros and cons of various treatment options for his patient having regard to the specific circumstances of each case and may and should depart from guidelines when there are good reasons. Nonetheless, while Dr Ang was entitled to exercise his clinical judgment in evaluating which treatment options were best for MT, the applicable standards required him to share with MT the various viable treatment options and the pros and cons that he thought were associated with each. He could and indeed ought to have advised MT as to which, of the various viable options, he thought was the best option for her. But it was not for him to decide for MT which option she must take, by omitting even to mention, for her consideration, other options including those he might have thought were inferior to his planned course of treatment. A doctor might believe that a particular treatment option is in his patient’s best interests, but ultimately, it is the patient who must make the decision on her treatment.

 
14     
The court also accepted that there would be no need for a doctor to mention to his patients treatment options that were, objectively, not viable options, since the provision of useless information to a patient is likely to confuse rather than assist and empower the patient. On the evidence, however, the court was satisfied that surgery was a viable option for MT as at 1 April 2010. Dr Ang had admitted before the DT that surgery was the only prospect of cure for MT’s cancer, and that MT might have up to a 20% chance of cure had she undergone initial surgery.

 
15     Dr Ang had therefore departed from the applicable standards by omitting to mention the viable treatment option of surgery to MT. The court further found that the omission was deliberate and intentional. Accordingly, the court upheld Dr Ang’s conviction on the 2nd Charge.

 

16     On sentence, the court took the view that Dr Ang’s misconduct in relation to both charges was serious. While he had made significant contributions to society in his various appointments, those had no mitigating value as they were not relevant to Dr Ang’s culpability or the harm that he had caused by his commission of the current offences. The court noted, however, that but for the current two charges, Dr Ang has had an otherwise unblemished tracked record through his more than 30 years of practice, with testimonials attesting to his dedication and professionalism as a doctor. It considered that Dr Ang’s conduct leading to the present charges may be seen as an aberration, and that he did not manifest a propensity to re-offend, as a result of which there would be less need to have regard to the interest of specific deterrence. That said, this had only limited mitigating value as the key sentencing objective in this case was general deterrence. Further, there was a need to protect public confidence and the reputation of the medical profession and, in this case, given Dr Ang’s seniority and eminence, the negative impact on public confidence in the integrity of the medical profession upon his conviction were likely amplified. On the whole, therefore, Dr Ang’s past record had limited relevance in mitigation.

 

 17     The court then considered the fact that the SMC had taken four and a half years to serve the notice of inquiry on Dr Ang following receipt of the Complaint. It held that there was inordinate delay on the part of the SMC in its institution and prosecution of the proceedings, and that the delay had caused Dr Ang prejudice in the form of the anxiety and distress of having the proceedings hanging over his head.

 

18     The court eventually decided that, in view of the seriousness of the offences, an appropriate sentence for Dr Ang would have been a term of suspension for an aggregate period of 16 months in respect of the two charges. However, taking into account the prejudice that Dr Ang suffered as a result of the SMC’s inordinate delay in the institution and prosecution of the proceedings, and balancing these considerations against the relevant interests of protecting public confidence and the reputation of the profession, the court decided that the aggregate sentence of suspension was to be halved to a period of eight months.

 

19     In the circumstances, the court dismissed Dr Ang’s appeal against his conviction of both charges, and allowed the SMC’s appeal to the extent that Dr Ang’s original sentence of an aggregate fine of $25,000 was substituted with an aggregate suspension term of eight months.

 

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court.

YOU MAY ALSO BE INTERESTED IN