Mediation, Disciplinary Procedures and Legal Procedures

I heard repeatedly people talking about mediation as the solution to the long waiting time for the Medical Council to handle a complaint.  I would like to point out that without drastic changes made to the disciplinary procedures, mediation would not work.  In particular, the definition of professional misconduct needs to be readdressed.

Mediation is a useful means of dispute resolution.  The special nature of being non-adversarial and non-fault-finding allows mediation to be flexible and to address the needs of both parties.  There can be a win-win outcome as decision of fault is not necessary.  Either party does not need to fight claws-and-nails to defend themselves.  It is therefore most useful in settling contractual disputes and matrimonial disputes.

However, it is also the nature of mediation that makes it not suitable for disciplinary purposes.  The aim of disciplinary procedures is to uphold professional standards, and thus ultimately to protect the public.  Clear rules are set to tell members of the profession what conducts are not acceptable.  Members falling below such standards result in disciplinary actions.  Such actions are not just for punishment.  They serve to deter undesirable behavior.  The criminal arm of legal procedures shares the same objectives with disciplinary procedures.  There is no room for mediation and settlement between parties in such respect.

In actual practice, disciplinary procedures are between the Secretary of the Medical Council and the defendant doctors.  They are not between complainants and defendant doctors.  Once the Medical Council proceeds with a complaint, even the complainant cannot withdraw it and stop the action.  They cannot settle among themselves.  This is because the Medical Council is not just answerable to the complainant.  The Medical Council has to investigate the case and decide on it so as to uphold the standard of the profession.  It is answerable to the public.

Therefore mediation cannot be incorporated into the current disciplinary procedures simply as an alternative to inquiries.  It needs to run parallel to the current procedures and with a different objective.  Mediation cannot uphold standards.  Rather, it provides redress to dissatisfied patients.  They serve different purposes and cannot replace each other.  There are 2 major difficulties in adding mediation to our disciplinary procedures.  First, talking about redress, apart from apologies, compensation in terms of money is involved.  The Medical Council needs to consider whether it wants to open another channel for compensation in addition to claiming personal injury in the area of tort.  Second, if the aim is to expedite disciplinary procedures, complaints need to be channeled to either inquiry or mediation, but not both.  To do so, a clear distinction between professional misconduct and non-professional misconduct cases is needed.   

However, the scope of misconduct now is exceedingly wide.  Anything fallen short of expected standards would be regarded misconduct, no matter how slight or trivial it is.  This resulted from a judgment from the Court of Appeal which ruled that the fallen short of standards needed not be serious.  It would be very difficult, if not impossible, to find cases not within such wide scope of misconduct.  Thus, mediation would not be helpful to lessen the case load of inquiry or shorten the waiting time.  Rather, mediation deals with some other new categories of complaints.

To further illustrate the interplay among legal procedures, disciplinary procedures and mediation, I use the case of the 7 police officers as an example.  7 police officers were charged with causing grievous bodily harm with intent, contrary to section 17(a) of the Offences against the Person Ordinance.  They were found guilty of a substitute offence of assault occasioning actual bodily harm, which was of lesser degree than the original charge.  All of them were sentenced to imprisonment for 2 years.  The verdict caused dissatisfaction among the police and some citizens.  There were criticisms against the judge and there were assemblies to support the defendants.

In this case, it was the Hong Kong Government that prosecuted the 7 police officers.  It was not a case between the victim who was beaten up and the 7 police officers.  In criminal procedures, it is the role of the government to uphold law and order.  During the trial, lawyers representing the defendants argued on every fine detail of the case.  They challenged the authenticity of each and every video and photograph, the admissibility of each and every video and photograph, the identification of all the defendants, the credibility of every witness, and when and how the wounds on the victim were caused.  Much time was spent on issues such as the carrying of batons and the use of protective knee caps by the police officers.  However, not one of the lawyers argued that it was lawful to beat up someone after tying him up.  No one challenged the Offences against the Person Ordinance.

It was alarming to see members of the police who were law-enforcing personnel to opine otherwise.  The court had to act according to provisions and case laws.  There was no room to address requests for preferential treatment.  A clear message had to be sent against behavior that was sanctioned by the society.  The same applied for disciplinary procedures.  Once found guilty, the services of the 7 police officers had to be terminated without pensions.  Otherwise, a wrong message of endorsement of illegal acts might be conveyed.

Mediation does not focus on right and wrong.  It is not relied upon to send important messages to the public.  It aims at resolving dispute and addressing the needs of both parties.  Allowing all shades of gray, the conduct of the 7 police officers was not real evil.  At least some of their colleagues took it as if it was their norm.  The crime was out of rage and I did not think they meant to cause serious harm to the victim.

Mediation is also about being down to earth.  It distinguishes between wants and needs.  The defendants might unrealistically want to maintain that they were innocent.  Some people might want the charges quashed.  However, did they really have no remorse at all?  Given another chance, would they do it again?  What they really need was rehabilitation.  Donations would be helpful.  But was it necessary to bundle donations with all sorts of wants from other parties?  During the trial, because of the adversarial nature, there was no chance for the parties to communicate, or to offer apologies to each other.  It would be of much benefit to the defendants, to the image of the police, and to the public if the 7 police officers and their colleagues could see their needs and moved on.

It is time to understand more on mediation, legal procedures and disciplinary procedures.  It is time to use them accordingly and appropriately.   

(Source: HKMA News March 2017)

Montgomery and Medical Council Reform

Doctors and lawyers are still talking about the Montgomery case.  On March 11, 2015 the UK Supreme Court decided that the Bolam test no longer applied to the consent for medical treatment.  Doctors could not rely on common practice or support from responsible medical opinion to omit rare but significant risks when getting consent from their patients.  Instead, we now have to take “reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.”

If you have studied law after 1997, or if you have read a bit about Bolam, you would not be shocked by the Montgomery case.  Bolam was decided in 1957. Since then, and especially in the recent 30 years, the Bolam test has been said to be “out” and no longer applied in various areas of medical negligence cases too frequently.  After reading Montgomery, I am happy that Bolam test is still treated as the rule with more than a few exceptions.  I foresee that soon Bolam test will become the exception in the decision of the standard of care in medical negligence.

Tracing back to 1985, in Sidaway, Lord Scarman, though as minority in dissent, had said that the Bolam principle should not apply to the issue of informed consent.  A doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed.  To me, the most important limitation set on Bolam was by Bolitho in 1997.  In Bolitho, medical opinions were divided on whether the claimant, a child in respiratory failure, should have been intubated.  If Bolam was followed, the defendant doctor should automatically be deemed not fallen below standard as she was supported by respectable medical opinion.  However, the House of Lords took the chance to announce that it was the Courts that set the law and not the medical profession.  Even if the medical practice was supported by a body of respectable medical opinion, it needed to be logically defensible.  Whether that particular medical practice stood on logic would be decided by the Courts. The decision would include the weighing of risks against benefits.

Embraced in the Bolitho decision is the insurance principle.  If the consequence of a risk is grave when materialized, it should be insured against especially when the cost of insurance is low.  Thus, in Montgomery, shoulder dystocia was considered a grave consequence of vaginal delivery of big baby that should have been communicated to the patient.  This 10% risk should have been insured against by letting the patient choose whether to adopt other modes of delivery or to take the risk.  In Sidaway, Lord Scarman insisted that a less than 1% risk of paraplegia should have been told as the consequence was grave.  For the patient to make a real and informed choice, the doctor needed to make sure that the patient understood what the risk was and how avoidable it would be.

Note that the risk here is the inherent risk of an intervention.  Although human factors do count, we are talking about unavoidable risk even in the best hands.  Stressing on the character or the skill of the doctor cannot dispense of the requirement of informed consent.

Interestingly, or sadly, I see from discussion on the recent Medical Council reform proposal that some doctors do not understand the concept of intrinsic risks and the insurance principle stressed in the above mentioned string of court cases.  To put it frankly, the reform proposal is to change the composition of the Medical Council.  The purpose of doing so is to facilitate the passing of policies in-line with the government.  This has been openly announced by a lawmaker and it is not denied by the government.  By adding 4 lay members, the composition of the Medical Council is changed in 2 aspects.  First, the number of lay members is increased while doctors are still in majority.  Second, the number of appointed members will be in majority by 4 to elected members.  It is the change to appointed member majority that would serve the purpose of railroading government policies.

Those “for” the proposal put forward arguments mainly on 2 fronts.  First, some appointed members do go through some process of selection.  Second, appointed members have their integrity and would not rubber-stamp proposals by the government.  These arguments stand no chance if Montgomery applies.  The intrinsic “risk” of appointed members is that they are pro-government.  It is nothing about right or wrong.  The government will naturally select those expected to behave in-line with it.  It will also keep them for another term and discontinue to appoint those who have “misbehaved”.  Any selection or election process will not be of much help so long as the members needed to be appointed.  To insist that appointing is mere formality is to ignore the facts in the cases of HKTV and Johannes Chan in the HKU pro-vice-chancellor selection.

On the other side of the same coin, elected members are no saints.  Voters would have a natural tendency to elect those behaving in ways beneficial to them.  Elected members would have a natural “risk” of appeasing, or at least not upsetting, their voters especially when the system allows re-election after members serve their terms.

I am not talking about which kinds of members are better, nor which forms of election better serve the society.  I am looking at changing a balanced council to one with appointed member majority.  There exists a material risk that decision making by the Medical Council will be dominated by government policies.  Of course this might not happen.  But this is the intrinsic risk of the system once the composition is changed according to the present proposal.

I am not sure whether Dr. KO Wing Man needs to explain to the medical profession about this intrinsic risk.  I am not sure whether he needs to make sure lawmakers understand the consequence before they vote to support the proposal.  I wonder if the lawmakers who are minority in the Legco and are busy filibustering will agree to a change in composition of the Medical Council to give the government a majority vote.  I envy Alvin YEUNG Ngok Kiu who is elected to Legco to prevent a foreseeable change to the Rules of Procedure in case there is a minority created.  

Again, it is not about vaginal delivery or not. It is all about informed consent.

(Source: HKMA News March 2016)

Medical Council Deformed

The first shocking news of the medical profession in 2016 was the announcement, interestingly via news media, of proposed reform of the Medical Council by the government through introduction of an Amendment Bill to the Medical Registration Ordinance (MRO).  In this issue of the News, you must read the page from Lai Eve.  She had nicely summarized the content of the reform proposal and divided them into “controversial” and “straight-forward” categories.  The most ingenious was the title she coined this reform proposal:  The Medical Council Deform.

You might say that it was exaggeration to describe the proposal as deforming the Medical Council.  Or some might argue that it is necessary to deform the Medical Council if there is a need to do so, so as to serve the public better.  I shall high-light a few points before going into discussion.  

1. It was stated that this proposed Amendment Bill was only an interim action.  More thorough reform might be introduced after the review from the Steering Committee on Strategic Review on Healthcare Manpower Planning and Profession Development in Hong Kong.
2. This interim action was called for because there was a recent High Court case in which the judge severely criticized the delay by the Medical Council in handling complaints, and there had been mounting public pressure for urgent improvements.  
3. Another immediate concern was that the Medical Council needed more flexibility in approving a longer period of up to 3 years for application for limited registration of non-locally trained doctors to practice in Hong Kong.  
4. In the proposed Amendment Bill, the most controversial item is to increase the number of appointed lay members in the Medical Council from 4 to 8.

I am not going to argue whether there are urgent needs to introduce reform while the report of the Steering Committee is due to complete.  I have to point out that the increase in appointed lay members from 4 to 8 vastly disturbed the balance in the composition of the Medical Council, while serving no actual purpose in addressing the 2 stated objectives.  

Complaint handling is but one important function of the Medical Council.  Complaints are first screened by the Preliminary Investigation Committee (PIC).  The PIC would refer the case for an inquiry if a decision on whether the doctor is guilty is needed.  It is statutory requirement for a lay member to form the quorum both in a PIC meeting and in an inquiry.  Therefore, there seems a need to increase the number of lay members in the Medical Council if more PIC meetings and inquiries are to be held.  However, this complaint handling function is purposely segregated from the other functions of the Medical Council for fairness and for the guarantee of independent decision making by individual members.  PIC cases and inquiry details are never discussed in policy meetings or among members.  Therefore the issue of needing more lay members to meet PIC and inquiry quorums can be addressed by adjusting the role of assessors.  

Assessors are persons who can take part in an inquiry.  They will not take part in any other meetings or decision making of the Medical Council.  One of the purposes of such design is to relieve the workload of members of the Medical Council.  In the proposed reform, there are important modifications to the numbers and roles of assessors.  A lay assessor can replace the lay member in a PIC meeting or an inquiry to form the quorum.  The number of lay assessors appointed would be raised from 4 to 14.  All these changes can in fact address the issue of lay persons in complaint handling without disturbing the composition of the Medical Council.

Another often proclaimed problem about complaint handling not mentioned in the reasons for reform is “doctors protecting doctors”.  It is argued and propagandized that increasing the number of lay members is important and useful to address this issue.  However, the proposed reform keeps the majority of doctors in both PIC meetings and inquiries.  Therefore, increasing the number of lay members is irrelevant in this respect.

Increasing the number of lay members from 4 to 8 changes the ratio of lay members to doctor members from 4:24 to 8:24 (1/6 to 1/3).  Lay members are still the minority.  However, one should not overlook the fact that all lay members are appointed by the government.  Within the Medical Council, there exists a delicate balance of appointed member to elected member of 14:14.  When the number of lay members is increased by 4, the ratio of appointed members to elected members would be 18:14, with clear majority votes by appointed members.  

It has been hinted by some, and overtly expressed by many, that elected members in the Medical Council tend to protect the interest of doctors rather than the public.  A too often quoted example is that non-locally trained doctors are not allowed to practice in Hong Kong without sitting for an examination because of oppositions from doctors in the Medical Council.  This is frankly inaccurate and the example is inappropriate.  The power of the Medical Council originates from the MRO.  The Medical Council simply does not have the power to allow non-locally trained doctors to practice in Hong Kong without sitting for an examination and fulfilling certain requirements.  In certain situations, such as the applications for limited registration, the Medical Council can approve non-locally trained doctors to practice in the 2 Universities and Hospital Authority (HA) without sitting for an examination.  In the past few years, the HA has used this mechanism (with objections from a significant number of Hong Kong doctors) to  employ non-locally trained doctors to work in various departments.  So far, the Medical Council has posted practically no resistance to the applications.  The non-locally trained doctors are also able to successfully renew their limited registrations yearly.

While it certainly undermines the wisdom of doctor voters, it is to a certain extend true to say that elected members have an inclination to take interests of the profession more seriously.  However, by the same token, members appointed by the government will incline to support government proposals.  It is this delicate balance in power of difference stake-holders that decisions acceptable to all parties can be negotiated.  Having a clear majority of appointed members will distort the Medical Council to the extent that professional autonomy is affected.

Adding lay members to the Medical Council does not address the “urgent” needs stated in the proposal.  However, the HKMA is not against adding more lay members.  We have a deeper understanding of the proposal.  To safe-guard professional autonomy, we insist that the ratio of appointed members to elected members be maintained.  One simple method is to add 4 elected doctor members together with the addition of 4 appointed lay members. 

(Source: HKMA News January 2016) 

In Vitro versus In Vivo

What works in theory does not necessarily work in practice.  It is common knowledge that a drug that works in vitro (literally meaning “in glass”, which is in experiment settings) might not work in vivo (literally meaning “in life, or in human”).  Among other factors, the absorption, distribution, metabolism and elimination of the drug affect the concentration of it at its target site.  You might never reach the effective in vivo concentration in vivo without causing toxic effects to other organs.  However, another hard-to-believe but disturbingly true explanation for a drug not working in vivo is that, for one reason or another, the patient does not take the drug.

That also happened to my suggestion made to the Medical Council about not to criminalize doctors who had forgotten to renew their Annual Practicing Certificates.  In the Editorial of the September issue, I identified a situation where an apparently harmless mistake (forgotten to renew the Annual Practicing Certificate) might end in criminal conviction of the doctor and inability to practice for a long period of time.  This was because the doctor’s honest declaration that he had been practicing during that “window period” was taken to the strictest sense.  He was reported to the police for practicing while his name was not on the General Register.  I pointed out that in a similar case (Fong Ngai Chiu), the judge dismissed the criminal charge because he accepted the defense that the doctor believed for good and sufficient reason, although erroneously, that his name were on the General Register.  I pleaded the Medical Council Members to consider adopting the reasoning of such defense to exempt the absent-minded doctors from police investigations and criminal charges.

The suggestion was not going to work because Members did not take it.  There was legal advice stating that judgment from a district court had no binding effect on others.  Also, it was difficult for a doctor to say that he reasonably believed (erroneously) his name to be on the General Register because the Medical Council had sent out repeatedly registered letters to remind him.  That in itself was a reckless act.

Obviously this was not true.  It was hard to believe hundreds of doctors behaved recklessly every year.  The defense was not from the point of view of the Medical Council.  It should be from the point of view of the doctor.  A simple reason to explain how an absent-minded doctor could believe his name to be on the General Register was just that he had forgotten to update his address.  He was wrong to do so.  He had made a careless mistake.  But this should not be criminal.

Some members had different opinions.  Some insisted that such act was criminal and the Secretariat should report to the police whenever she encountered such declarations.  Some believed that the Medical Council was not in a position to give legal advice to doctors, especially those who had erred.  Some shared no sympathy with the absent-minded doctors and believed that harsh punishment was deserved.  Some found no problem with the current situation.

In conclusion, my suggestion did not work in vivo.  What I can do is to remind readers here to check whether you have renewed your Annual Practicing Certificate.  And I shall remind you later repeatedly.  However, I hope such act would not make the absent-minded doctors deemed more reckless.

Another sad outcome was from the Student Movement.  It was the situation where what worked in vivo did not work in vitro.  All along, scientists have been making various observations on things that happen in certain patterns, or something that work in certain ways.  The real challenges are how to elucidate the reasons behind such observations.  Why and how do things work?  Without knowing the true reasons behind, it would be difficult to reproduce the effects in artificial conditions with certainty.

For the Student Movement, it was planned to be the Occupy Central action which involved an estimated 1000 people to occupy Central for a day or so during a public holiday.  The aim was to arouse attention of Hong Kong citizens and international media on the issue of Chief Executive Election.  As you all know, it turned out to be near 10,000 people occupying different sites including major roads for more than 70 days.  No one knew exactly how these were sparked off.

In late November, while the Movement seemed to be caught in a dead end, student leaders tried to reproduce what happened in September 28.  Occupiers were asked to march against thousands of pre-informed police.  Sadly, what worked in vivo before did not work in such artificial conditions.  Many occupiers were injured, and so was the image of the Movement.

But I am not blaming any of the students.  Right from the start, no one would have expected them to achieve a political reform overnight.  Neither does Hong Kong need any revolution.  No matter how the Movement ends, their aim of sending a clear message to Hong Kong people has been achieved.  All of us will remember the yellow umbrella, the giant banner at Lion Rock, and various art works.

The Student Movement reminds me of Buddhist teachings.  The Buddha is not bringing you to the moon.  His teachings serve as a finger that points the way to the moon.  The right direction has been shown.  Everyone of us should work hard accordingly towards that direction.

(Source: HKMA News December 2014)

Self-incrimination

This is very important.  A common minor mistake can turn into a criminal offence and prevent you from practicing for years.  Such mistakes are made every year by hundreds of doctors.  You might be one of them.

In 2013, a doctor was arrested in his clinic because of “practice of medicine without registration”.  He was then found guilty and fined $20000.  That was not the end of the story.  Since he had committed an offence punishable with imprisonment, he was caught by another section [s21(1)(a)] of the Medical Registration Ordinance (MRO) and he would need to go through investigations by the Preliminary Investigation Committee (PIC) of the Medical Council, and then might need to face an inquiry.  By the time, his name was still not on the General Register (GR).  He would need to wait for procedures such as a restoration hearing before he could start to practice again.

What had this poor colleague of us done?  Actually he had forgotten to renew his Annual Practicing Certificate.  After repeated reminders from the Medical Council, his name was removed from the GR.  He was caught not because he ignored the removal notice from the Medical Council and continued to practice after he knew of the removal.  He was caught because he incriminated himself when he filed the application form for restoration.  I have to tell you that there is a serious problem with the application form for restoration.  The applicant will end up either incriminating himself or making a false declaration.

To understand this typical “Catch-22” situation, I have to first get straight some facts:

1. A doctor has to renew his Annual Practicing Certificate before the end of each year.  If he fails to do so, after a grace period of 6 months, his name would be removed from the GR.
2. According to section 28 of the MRO, it is a criminal offence to call himself a doctor if his name is not on the GR.  He will be liable to a fine and imprisonment up to 3 years.  It is another offence if he practices medicine when his name is not on the GR.  He will be liable to a fine and imprisonment up to 7 years.  Moreover, he has to get rid of most of his medication stocks as he is no longer entitled to possess them.  Otherwise he would be liable to other fines and sentences of imprisonment according to the Pharmacy and Poisons Ordinance, the Antibiotics Ordinance and the Dangerous Drugs Ordinance.
3. When he is (finally) notified by the Medical Council that his name is removed from the GR, as a good and sensible citizen (as he is no longer a doctor), he will stop his practice and immediately file for restoration.  In the application form for restoration, he needs to make a declaration.  He needs to declare whether he has practiced medicine during the period when his named is removed from the GR.  It is this part of the form that makes him liable no matter what he declares.
4. Obviously, if he is not aware of the fact that he has forgotten to renew his Annual Practicing Certificate, there ought to exist a period that he is still practicing before he is notified of his removal.  Our afore-mentioned colleague was honest enough to answer “Yes” to this question.  The result was that it amounted to self-incrimination and the police was notified.
5. What about answering “No” to that question?  In the notification of removal, the date of removal is given.  That means the doctor should be fully aware that he has been practicing between the date of removal and the date of being noticed.  He will be making a false declaration.  This, again, is a criminal offence.

Do readers feel akin to the ice-bucket challenge after reading the above facts?  Starting with a relatively minor mistake with no malice or fraudulent intent, a doctor can end up with criminal charges and be unable to practice for a long period.  This situation was brought to attention to the Medical Council.  However there had been to no avail.  The legal advice was that the applicant for restoration could choose not to answer that particular question.  Such advice was obviously nothing but absurd, if not an affront to common sense.

But don’t worry!  I have some important observations here for our members.  Every year, there are hundreds of doctors being removed from the GR in July due to failure to apply for the Annual Practicing Certificate.  They have to apply for restoration.  In all these years, I am not aware of any doctor being caught and found guilty of making false declaration.  You might draw an inference that the Medical Council is more tolerable to false declarations than self-incrimination.  I must point out firmly that I am not hinting such inference.  My advice is: try not to forget to renew your Annual Practicing Certificate.

As a member of the Medical Council, I think it is prudent to work out something more concrete to solve this problem than to provide facts for colleagues to draw inference.  I go through relevant sections of the MRO, procedures for restoration and cases on this matter.  There was a similar case in 2009 (Tong Ngai Chiu) and the judge dismissed the criminal charges.  The defense counsel brilliantly relied on the important defense developed from the case Fong Chin Yue.  I summarize as follows:

1. Section 28 of the MRO should not be interpreted in a way that there would be a “gap through which the innocent might fall to their harm”.  Criminalizing absent-minded-mistakes should not be the intention of the Ordinance.
2. Thus, there existed a defense to the charge.  “If the accused could prove on a balance of probabilities that he believed for good and sufficient reason, although erroneously, that the provisions of the Ordinance had been complied with”, he would not be guilty of the charge.
3. “A magistrate should approach such defence with fairness, common-sense, relevant consideration should be… whether the accused gained or stood to gain by offending the extent of any such gain, and how it compared with what he could earn by honest means.”

Following the decision from Tong Ngai Chiu, I suggest adding the following items to the restoration application forms:

1. Date of knowledge of being removed from the GR
2. Period the applicant has been practicing after his name was removed from the GR, if any
3. A declaration by the applicant that he believes for good and sufficient reason, although erroneously, that his name were on the GR during the period mentioned above

I believe (hopefully not erroneously) that such approach, with some refinement, can solve the Catch-22 situation for good.  I shall write to the Chairman of the Medical Council and introduce this approach for discussion.  In the meantime, please make sure you pay and apply for the Annual Practicing Certificate before the end of this year.  Since those absent-minded colleagues are removed from the GR in July each year, I don’t think anyone needs to draw any inference now.

(Source: HKMA News September 2014)

The judges got it wrong?

The disciplinary power of the Medical Council of Hong Kong rests solely on its disciplinary procedures.  After due inquiry by an inquiry panel, a registered medical practitioner can be sanctioned ranging from being issued a warning letter, to the removal from the General Register.  Removal from the General Register is considered a very heavy penalty as the candidate ceases to have the right to practice medicine until and unless he is included in the General Register again.

How did members of the inquiry panel make such an important decision on whether a doctor is guilty of profession misconduct?  Members need to apply a “test”.  A test is a legal term.  We can see a test as a question resulting in either a “Yes” or a “No” answer.  If the answer to the question is “Yes”, the doctor concerned is guilty of professional misconduct.  In 1988, in a case heard in the Court of Appeal, the judge decided that the test to be: “whether the doctor's conduct has fallen short of the standard expected amongst doctors?”  Unfortunately, and with due respect, this decision was wrong and it paved the way to the dysfunction of the disciplinary procedures of the Medical Council.

In 1988, Dr. Koo Kwok Ho was found profession misconduct because his nurse was caught selling a dangerous drug to a patient.  He claimed that it was a single incident and the nurse had done it without his knowledge.  He lodged an appeal.  In the Court of Appeal, the judge referred to a case heard in the Privy Council in 1987: Doughty v General Dental Council.  In Doughty, the dentist was found guilty of “serious professional misconduct”.  Such term was introduced a few years back to replace the old charge of “infamous or disgraceful conduct”.  In his ruling, the Lord interpreted the statue and decided that the conduct did not need to be infamous or disgraceful to constitute professional misconduct.  He further explained that "what is now required is that the General Dental Council should establish conduct connected with his profession in which the dentist concerned has fallen short, by omission or commission, of the standards of conduct expected among dentists and that such falling short as is established should be serious."

It was perfectly appropriate for the judge in Koo Kwok Ho to rely on Doughty, particularly to follow that a single incident could constitute misconduct; omission could be misconduct; and that the conduct needed not be proved to be infamous or disgraceful to the profession.  However, the judge further distinguished from Doughty that in Hong Kong the charge was a bit different.  Thus, the judgment stated: “Save to observe that the Hong Kong ordinance does not require the element of seriousness, the relevant words being ‘misconduct in any professional respect’, we would respectfully adopt their Lordships' comments with respect to inquiries under Section 21 of Cap. 161.  It is unnecessary then to consider the application of emotive adjectives.  The test is simply whether the doctor's conduct has fallen short of the standard expected amongst doctors.”  This ratio decidendi was problematic.  It was understood that the disciplinary procedures of the General Dental Council in UK was similar to that of the Medical Council of Hong Kong.  The purpose was also similar in protecting the public by sanctioning undesirable behavior of doctors.  It was irrational to conclude that in Hong Kong the scope of the charge was totally different from that in UK and the fallen short of standard needed not be serious.  

Concerning statute interpretation, a recent decision from the High Court (Hong Kong Medical Association v Medical Council of Hong Kong HCAL 70/2012) gave a good summary on it: “It is a fundamental point in statutory interpretation to look at the relevant words or provisions having regard to their context and purpose.  This was made clear by sir Anthony Mason NPJ in his judgment in HKSAR v Lam Kwong Wai (2006) 9HKCFAR 574 at paragraph 63 where he explained that the modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise.  This was reinforced in subsequent decisions of the Court of Final Appeal in HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR at paragraphs 12 and 13 and Vallejos and Domingo v Commissioner of Registration [2013] 2 HKLRD 533 at paragraph 76 and 77.  Statutory interpretation therefore requires considering and understanding the relevant statutory wording or provisions in light of their context and statutory purpose.”

Taken out of context to decide that “professional misconduct in Hong Kong” was equivalent to “serious profession misconduct in UK that needed not be serious” was bound to result in absurdity.  Any fallen short of standard, no matter how trivial, could then be professional misconduct.  Unfortunately, the decision in Koo Kwok Ho was followed in Too Chun Fung v Medical Council of Hong Kong CACV 206/2000.  In Too Chun Fung, the appellant argued that there needed to be something more than just fallen short of standard to constitute professional misconduct.  The judge did not agree.  Similar decision was come to in Ip Wing Kin v Medical Council of Hong Kong CACV 627/2001.

Next month, I shall further write on the undesirable effects of the Koo Kwok Ho decision on the Medical Council, on doctors and on patients. 

(Source: HKMA News July 2014)

Disciplinary procedures

 

I have studied law, but of course I am not a lawyer.  I am a family doctor.  All my limited experience on legal proceedings comes from voluntary public services.  The one most closely related to my profession is the Medical Council.  I have been a General Member of the Medical Council for 9 years.  I even obtained a Master degree in Medical Laws to better equip myself.  I am also a member of the Barrister Disciplinary Tribunal and the Licensing Appeals Board of the Food and Health Bureau.

Although it is called an appeal board, the Licensing Appeals Board does not usually deal with complicated adjudication problems.  Cases go through the Board to buy time and as a standard procedure before lodging appeals to the Municipal Services Appeals Board.  Hearings are held in the Conference Room of the Central Government Offices with the Chairman and 4 Members.  Several cases are heard in a morning session.  It is more like counseling than judging.  I usually encounter restaurant owners who talked angrily, or cried sadly, but with no legitimate reason for the appeal.

Inquiries of the Barrister Disciplinary Tribunal are more formal.  It is quite an experience to sit at the judges’ bench of a court room in the High Court.  Obviously both parties are represented by counsels, who are instructed by representing solicitors.  Together with juniors, paralegals, interpreters and transcript writers, they quite make a scene.  Hearings are carried out after court hours, from 5:30pm till 8:30pm usually.  There are 3 members, 2 barristers and 1 lay member, acting as judges.  The Tribunal is very efficient.  I remember hearing a case which was quite complicated, involving ICAC and intermingled commercial issues.  It took only 7 hours, in 3 days, to reach a verdict.  In between, 5 witnesses were called and cross-examined.  Time management was strict.  Irrelevant issues were stopped and delayed tactics were frowned upon.

Inquires of the Medical Council are most demanding.  It needs 5 Members of the Council, or 3 Members and 2 Assessors, to form a quorum.  At least 1 of the 5 Panel Members should be a lay member.  Hearings are held at the conference room of the Medical Council at the Academy of Medicine Building at Wong Chuk Hang.  Hearings usually take 1 full day, from 9:30am till 6:30pm.  It is more and more common to have hearings which span more than 1 full day.  2 to 3 days seem to be the norm.  Recently, there was a case, which involved an obstetrician, that required nearly 11 full days for the whole process.  I did not take part in that inquiry.  It was also this case that led the public to criticize the Medical Council for delay in handling complaints.  Because of a strange comment that some Panel Members needed to leave on time so as “to celebrate Mother’s Day as scheduled”, the Inquiry Panel Members seemed to take the blame from the public more than the defendant doctor.  This is not fair.  In these 9 years, I have sat in around 50 inquires and acted as chairman in 2.  I remember once I was real exhausted after a 3-whole-day hearing.  I got a terrible headache.  Together with the oily and probably bad food for lunch from the canteen, I vomited twice and nearly ended up in A&E that night. 

Medical Council hearings are quite formal.  Strict procedures are set out in Part IV of the Medical Practitioner (Registration and Disciplinary Procedure) Regulation.  In short, the Secretary of the Medical Council, usually represented by the Legal Officer from the Department of Justice, reads out the notice of inquiry and the charges against the defendant doctor.  The Legal Officer then presents the case against the defendant, adducing evidence in support of it.  He may call expert witnesses and witnesses to testify.  Witnesses will testify under oath and are examined and cross-examined.  At the close of the case, the defendant, usually legally represented, can make a no case submission in the point of law.  The Inquiry Panel Members have to make a decision on it.  If it is rejected, the defendant is required to state his case.  At the conclusion of the case for the defendant, both parties may make closing submissions.  The Legal Advisor will then tender legal advices on the case.  The Inquiry Panel will then deliberate and make a decision on whether the defendant is guilty of the offence charged.  If the defendant doctor is found guilty, he will be invited to address the Panel by way of mitigation.  He may adduce evidence as to the charge or personal background of the defendant.  The Panel then decides on sentencing.

The procedures are quit complicated.  I have heard repeatedly from Members that justice takes time.  I do not fully agree on that.  Lengthy procedures are unfair to both parties, the complainant and the defendant doctor alike.  Lengthy inquires will also slow down the complaint handling procedure as a whole and is thus unjust to the long waiting queue of complainants.  This is one of the focuses of criticism of the obstetrician case.  There are some areas for improvement.

Written submissions should be encouraged and better prepared.  I seldom receive agreed facts or even the defense’s bundle well before an inquiry.  Lengthy reading out words by words from such documents can be dispended of.

“He who decides must hear.” is the principle for nature justice.  However, it does not mean that the defense can drag on irrelevant issues or elaborate indefinitely on well taken points.  Case management is deemed the norm rather than jeopardizing the rights of the defendant.

Deliberation and decision on whether the defendant doctor is guilty of the charges take time.  And I agree that it should take as much time as it is feasible.  However, experience tells us that it seldom takes hours for decision making.  There is also a mechanism of majority votes for reaching a decision when there is no chance of reaching a consensus.  It is the writing of the judgment by the Legal Advisor that takes time.  The previous Legal Advisor usually took several hours to write several pages of judgment.  I am not going to comment on the practice of another professional.  But the Inquiry Panel can always announce the decision of guilty or not while the full judgment be handed down later.  Mitigation factors can then be heard from the defendant.  The Panel can deliberate and decide on sentencing, which is again to be announced later.

The above are some of my experience and thoughts on disciplinary procedures.  In response to the call for reform of the Medical Council, I would then present some other thoughts on this topic in the following issues of the News. 

(Source: HKMA News June 2014)

Credibility

I came across a judgment handed down from the Court of Appeal on December 16, 2013.  It was heard on November 19, 2013 on appeal by two appellant doctors from the order of the Medical Council of Hong Kong made on November 21, 2011.  The Medical Council lost this appeal and had to pay the costs of the appellants.

It is no big news that the Medical Council lost an appeal.  In an adversarial system of litigation, either the appellant or the respondent will be ruled in favor of.  Doctors found guilty of professional misconduct tend to appeal.  This is especially the case when the sentence involves removal of the name of the guilty doctor from the General Register.  The reason is that when there is an appeal in progress, the removal will not take effect.  Such arrangement is considered to be fair to the doctor found guilty as the waiting time for an appeal to conclude usually takes years.  As in the aforementioned case, it took two years.  If the doctors had been removed immediately after the Medical Council inquiry, the majority of them would probably have spent their sentences before the appeals were heard.  They would be punished even if they succeed in the appeal, which means they are actually not guilty.  This to-be-fair practice is not limited to the Court of Appeal.  Therefore it is not uncommon to find doctors lodging appeal to the Court of Final Appeal after they lose in the Court of Appeal.  It would then take three to five years for a removal sentence to materialize.  Well, I am not going to discuss or comment on this practice, as this is part of the game of litigation.

Among these so-commonly-happen appeals, the Medical Council seldom loses.  If you are to bet on it, don’t put your money on the appellant doctors.  The reason is given in each and every judgment in a copy-and-paste manner.  In the aforementioned judgment, it was said that “this Court would be very slow to interfere with findings of fact and credibility by an experienced body such as the Council.”  “…. This Court is at the double disadvantage of not having heard the witness but of also being ill-equipped to gainsay a determination by the Council as to what are or are not acceptable standards amongst medical practitioners.”  Thus, when there is a case in which the Court of Appeal rules in favor of the appellant doctors, it appears more interesting and invites more thorough reading of the judgment.

I am going into details of the case.  If readers are interested, you can go to the following link: http://www.hklii.hk/eng/hk/cases/hkca/2013/637.html.  I just want to highlight some of my observations and gut feelings as a family doctor who knows a little bit about evidence law and medical law.  The Court of Appeal had rightly and concisely summarized the allegation into one sentence: “the failure of the appellants to care for their patient post-operatively by not referring him to an oncologist when they knew the tumour had not been successfully and completely excised: and instead, leading the patient and his family to believe that it had been.”  And the issue of the case was conveniently described by one word: “credibility”.

Reduced to the simplest, the complainants alleged that the defendant doctors omitted to do something, or did something in a negligent manner.  The defendant doctors denied such allegations, and told another story.  It was the evidence of the complainants against that of the defendants.  Apparently, the inquiry panel whole-heartedly preferred that of the complainants.  The inquiry panel found the complainants “honest and reliable witnesses”.  On the other hand, the inquiry panel showed strong feelings against the defendants, particularly the family doctor.  The Court of Appeal shared my observations.  The judges described the inquiry panel as “adopting some very strong language in its assessment of the conduct and evidence of the two appellants”.  They then gave nine excerpts from the findings of the inquiry panel “to give a flavor of that assessment”.  They described such criticisms as “damning” and supplied emphasis on the excerpts as follows: “dishonest and unreliable”; “he tried to cover up”; “both lied to the patient and the daughters”; “deliberately misled the patient and the daughters”; “hiding the facts”; “deliberately designed to dissuade the patient and the daughters from pursuing post surgical treatments which would expose his lie”; “was the mastermind of the whole arrangement”; “pursued his self-interest to cover up his lie”; “dishonest motive to hide the fact”.  The judges went on and summarize that: “The Council effectively found, and said so in emphatic terms, that D1 had for personal gain masterminded a plan to induce the patient and his family to have the operation done privately rather than in a public hospital, conspired with D2 to conceal from the patient and his family that removal of the tumour had not been successfully achieved, and then pursued a deliberate course of conduct designed to dissuade the patient and his family from having any treatment which might expose their lie; thereby clearly putting the patient’s life in grave danger.”

However, for the fact of the case and the ground of appeal, it was not just the evidence given by the complainants against that given by the defendant doctors.  There were certain written documents that the inquiry panel “overlooked and/or failed to deal with which not only undermined the evidence of the complainants but confirmed the evidence of the appellants”.  Moreover, it was common sense that the doctors would not on one hand tried to lie and hide the facts, while on the other hand gave the true pathological report to the patient and advised him having an oncology appointment in Queen Elizabeth Hospital.

Misconduct in a professional respect is a serious verdict for a doctor.  Risking patient’s life for financial interest amounts nearly to a criminal charge.  A very high standard of proof is called for.  If it is not “proved beyond reasonable doubts”, it should be “highly probable than not”.  The judges had commented fair and square: “If the Council took such a serious view of the appellants’ conduct and adopted such a disparaging view of their evidence, then it was particularly important that it should deal with that body of evidence which tended to confirm their credibility and strengthen the improbability of them having done what was alleged.”   

 

(Source: HKMA News January 2014)