Indecent Assault

On 6 November 2009, a 26-year-old (male) doctor, who was about to receive a qualification from the Royal College of Surgeons of Edinburgh, was convicted of indecent assault on a 15-year-old girl during his elective period in the A&E Department of Tuen Mun Hospital.  It was reported in newspaper that on 10 February 2009, the girl had stomach discomfort and was seen by the doctor.  She lifted up her dress to her rib area for the doctor to examine.  She asserted that the doctor pushed her dress and her bra up to her collarbone and touched her breasts without her consent.  The Magistrate found the doctor’s testimony not consistent with the statement given to the police and found him guilty of indecent assault.  The magistrate clearly pointed out that the offence constituted a breach of trust.  When passing sentence, the magistrate criticized him for taking advantage of a young and vulnerable girl, and that the doctor had shown no remorse.  He was sentenced to imprisonment for nine months.  After serving his sentence, the doctor needs to face a Medical Council inquiry because of the criminal conviction.  There is a high chance that he will be removed from the General Register for a certain period of time.

Although Glenn Beck in his new book “Arguing with Idiots: How to Stop Small Minds and Big Government” wrote that “opinions should end where facts begin”, the fact for the above case was that might be no one would know the fact.  Even the two people involved in the case might not know the whole particulars.  The doctor might be preoccupied by something in his mind and thus had done something not in his full consciousness.  The girl, on the other hand, might have mistaken some procedures and firmly believed that the act was a sexual assault.  At this point in time, the only fact was that the doctor was found guilty.

It is perception that matters.  Some doctors believe that the doctor was innocent and would like to help his appeal.  It is a fact that the judge would usually choose to believe in the patient rather than the doctor when there is contradicting evidence.  It is because it is hard for a doctor to remember every detail of one patient among hundreds of patients seen, but it is convincing for the patient to tell every detail of a single consultation in which she finds problems.  Frontline doctors might find them vulnerable especially in a busy environment in short of nurses to act as chaperons.

Another concern is rehabilitation of the doctor.  No matter the doctor had committed the crime or not, this event was a real trauma to his career and to him psychologically.  He needs help in terms of financial assistance, career counseling and psychological counseling.  I think the medical school where he graduated and the HKMA should take the initiative to offer assistance to him during his trial, during his appeal (if there is any), during his stay in prison, after his release, during the Medical Council inquiry and afterwards.

For the public, people might also perceive that they are vulnerable.  There had been cases of sex crimes including inappropriate sex relation of a doctor and his psychiatric patient, hidden camera installed in a private clinic and indecent assault committed by a medical student.  Doctors and patients are in an unequal position as doctors are the authority while patients are sick and anxious.  One must admit that there exists a real risk, no matter how small this risk is, that a doctor might abuse his power and position and do something harmful to the patient.  Therefore it is very important to make sure that doctors do not abuse their positions, and that there are clear mechanisms to show to the public that doctors will not abuse their power.

It is the role of the Medical Council “to assure and promote quality in the medical profession in order to protect patients, foster ethical conduct, and develop and maintain high professional standards”.  In the above mentioned case, apart from holding an inquiry according to the MRO after the doctor spends his imprisonment, the Medical Council should make sure that there is no latent period between his release from prison and the delivery of verdict from the inquiry.  It is because the doctor is still on the General Register and thus can still practice before there is any action from the Medical Council.  For public protection, the logistic of the inquiry should be carefully monitored and there should be an interim measure for suspension of doctors from practicing if there are criminal offences resulting in imprisonment especially sex crimes.

Buddhism looks at moral evils in three levels.  The first level is called anusaya, which means sleep.  At this level moral evil remains dormant in the form of latent tendencies.  The second level is called pariyutthana, which means arising all around.  At this level the latent tendencies are awaken and cause emotional turbulence and excited feelings.  The third level is called vitikkama, which means going beyond.  At this level our emotions manifest themselves in the form of vocal and physical actions.  The vitikkama is most dangerous but easiest to control.  This can be controlled by moral discipline (sila) such as Codes and Regulations.  Evil at pariyutthana level is controlled by concentration (samadhi).  I regard this as impulse control training, which should be introduced and reinforced both at undergraduate and postgraduate level.  Wisdom and insight (panna) is needed to uproot evil at anusaya level.  This involves personal development.  A good foundation at medical school is very important.

(Source: HKMA News November 2009)

No more “Laboratory Tests” !

Introduction 

“No more Laboratory Tests” is my advice.  It does not mean that you should not perform laboratory tests as investigations in the management of your patients.  But whatever you do, do not mark on the receipt an item simply labeled “Laboratory Test” with the related charge.  Otherwise, you might not only run the risk of being found professional misconduct, but also be found guilty of taking rebate in disguise.

My advice originated from an inquiry which was reported in nearly all newspapers on August 29, 2009.  It was reported that a doctor was found professional misconduct because he charged excessively for laboratory tests.  The Medical Council treated this as taking rebate in disguise.  I was confused after reading the reports.  Some Council Members of the Medical Council and the HKMA shared my feelings and there had been discussions through e-mails.  We were also approached by anxious doctors who did not get the full picture from newspaper reports.  So we decided to wait until we received the judgment to see if there was any misinterpretation by reporters.

However, after reading the judgment, our confusion remained the same.  We were still concerned about the meaning of “laboratory tests”, “excessive charge” and “rebate in disguise” in the context of the judgment.  We were still not clear when a doctor would be found taking rebate in disguise and thus misconduct in a professional respect.  So we tried to initiate discussion of these matters in the Medical Council by asking for a review of the case according to a section in the Medical Registration Ordinance.  Our aims were to clarify terms used in the judgment, to discuss how the judgment would affect many doctors in private practice, and to discuss rectifications if indicated.

I felt sad when our request was turned down.  I doubted the legality of such decision and I was angry on the way our request was handled.  I then found that taking the Master Course in Buddhist Studies did help me.  When I wrote the following, I was calm and my aim was to clarify matters.  So it was presented as objective as possible, though of course with my subjective perception and analysis.

The case and the Judgment 

The Defendant Doctor was found guilty of professional misconduct because he “charged the patient excessively for the laboratory tests conducted for sexually transmitted diseases.”  According to my interpretation of the judgment, the main argument of the Panel finding the Defendant Doctor guilty was that: “laboratory tests”, if written on the receipt, should mean “the fees charged by the laboratories”.  And then the Panel took a leap forward and found that the differences in charges (between the amount the Defendant Doctor charged the patient and the amount the laboratory charged the Defendant Doctor) indicated that the Defendant Doctor had a financial gain from referring the patient for laboratory tests. They considered that such gain was “a rebate in disguise”

It is Difficult to Find a Doctor Guilty of Professional Misconduct for Charging Excessively. 

In fact the panel faced a difficult task when they had to decide on whether the Defendant Doctor had charged the patient excessively for the laboratory tests conducted.  The Code provides some guidance.  Section 12.3 read: “A doctor should not charge or collect an excessive fee.  The Council will consider the following factors in determining whether a fee is excessive:-

• (a) the difficulty, costs and special circumstances of the services performed and the time, skill and experience required;
• (b) the average fee customarily charged in the HKSAR for similar services; and
• (c) the experience and ability of the doctor in performing the kind of services involved.”

 

The burden of proof lied with the prosecution.  That meant the prosecution had to provide evidence of the average charges of laboratory tests in Hong Kong, taking into consideration the technique required and the risks involved, together with the Defendant Doctor’s experience.  So it might need comparison with the average charges of a doctor with similar specialty and experience in performing the tests.  Defining how much in excess of the average charge constituted “excessive charge” would be even more difficult.  So I guessed the panel took another approach, I called it the “rebate in disguise” approach.

A Quantum Leap to Find Rebate in Disguise 

For analysis purpose, I call the charge that the laboratory billed the Doctor “Charge A”; and that charge which appeared on the receipt “Charge A+B”, in which “B” denoted the charge in excess of what the laboratory billed the Doctor.  It was agreed fact that there existed a Charge B.  The point was whether in the settings of the case, was it wrong to do so?  If it was, did the act fall below the standards of doctors?  If it did, did it amount to professional misconduct?

There could be two reasons to explain Charge B:

1. The Doctor marked up the charge, with no extra service provided
2. Charge B stood for additional service the Doctor provided in performing the laboratory test 

It was up to the panel to decide which reason to infer upon analysis of the material facts.  However, it was also stated as agreed facts that the Doctor spent some time in taking blood and taking swab.  It is understood that a doctor can charge for providing service.  Whether the charge is excessive is another discussion.  It is only problematic when a doctor charges a patient without providing service, or in fact without providing anything.

What the panel believed (I supposed) was that Charge B should have been included under item “Consultation, Medication & Treatment” on the receipt, and thus the Defendant Doctor had made a charge without providing any service.  To make this finding, I supposed there should have been comparison of the Doctor’s normal consultation and medication fees for similar cases, but without laboratory tests, to show that there was an indication of the inclusion of Charge B.  It would not be easy to do so as cases seen were likely to be different.  If it could not be shown that Charge B had already appeared under item “Consultation, Medication & Treatment”, then the Doctor was legitimate to charge the patient as he had provided extra service.  The wrong might only be that he had put the charge under the wrong item in the receipt.

Even if the panel was satisfied that the Doctor made a Charge B without providing any service, the panel could found him charging excessively because he was actually charging more than he should have.  (He should have charged nothing.)  However, it was a quantum leap to make a general statement that financial gain from referring a patient for laboratory test was rebate in disguise and then to find the doctor guilty of taking rebate.

Stating that the charge for laboratory tests as written on the receipt should not include any service charge was artificial.  What happens when a patient is referred to a laboratory for a laboratory test?  Let’s take an example of a blood test for VDRL.  There needs to be reception service.  There needs to be a nurse or a technician to take the blood sample with appropriate equipments including a tourniquet, a syringe with needle, alcohol swabs, gloves, sample bottle and Elastoplasts.  The nurse needs to be trained in blood taking and she might encounter difficulties in locating the vein or in taking blood.  There needs to be personnel with knowledge and training in first-aid and resuscitation in case the patient has a vaso-vagal attack.  There needs to be storage facilities for the blood sample.  It is only then come the procedure of process of the blood and the chemical reaction for the VDRL test.  Obviously, there are differences between a patient going to the laboratory to have the VDRL test and the doctor taking blood from the patient and sending it out to the laboratory for process and testing.  When the doctor takes blood, he is providing some of the services and bears some of the costs and risks of the laboratory.  It is natural and reasonable for the doctor to charge the patient for service provided. 

Financial Gain for Making Referrals 

Talking about having financial gain from making referrals, I can identify some similar situations if an over-simplified approach is taken.  When a doctor charges the patient for writing a referral letter to another doctor, is he taking rebate in disguise?  Do we need to examine how much he charges for the letter, how much time he needs to spend on it, or how he presents his charge in a receipt?  When a doctor charges a patient for writing a prescription, do we need to undergo the above analysis?  When a doctor asks his nurse to buy a box of medicine from a neighboring drug store and gives it to his patient, he marks up the price without removing the price label from the drug store.  Is he taking rebate in disguise?

How About Medication Fees? 

Another pitfall for the rebate in disguise approach is medication fee.  For the same reasoning, the item “Medication Fee” as appears on the receipt should mean the price of medicine that the drug company charges the doctor.  The obvious reason that the doctor has provide service such as dispensing service should not be included in this item.  That can constitute again “rebate in disguise”.

Approach in Inquiry 

I always remind myself not to come to over-generalized rulings especially when large number of doctors are affected.  In judging a defendant doctor, I am guided by the Code of Professional Conduct (our Red Book) and peer standards. General principles are laid down by the Ethics Committee and are endorsed by the full Council.  There are thorough discussions with members from different representations.  There is ample time for researches and legal advice.  This is not the case for an inquiry panel.  Time is often limited.  There are usually around five to seven Council Members and Assessors.  Therefore, I would try to limit the judgment to the individual case according to principles laid down.

A Request for Review of the Decision was Turned Down 

The above are my analysis of the case and the judgment.  I might not be correct.  I have to write it down here because there seemed no other way to have my opinions discussed and the result of the discussion conveyed.  The following was an outline of how the request for review ended in futile, with similarly difficult-to-understand logics.

Some members found that the judgment would affect most doctors in private practice.  The meanings and implications of “Laboratory tests”, “Rebate” and “Excessive charges” needed discussion and clarification.  A jointly signed letter was sent to the Chairman of the Medical Council asking for a review of the decision under Section 21 (4B) of the Medical Registration Ordinance (CAP. 161): “Within 14 days after the conclusion of an inquiry under this section, the Council may, of its own initiative but not otherwise, review any decision or order made in the inquiry.” 

I would not go into details of how the request for review was rejected, because it would make myself or some readers angry, and anger was hazardous to health.  The essential point was that there was legal opinion that the word “Council” in Section 21 (4B) of the MRO referred to the Inquiry Panel, and not the Medical Council.  I valued the legal advice.  At least it looked at the statue from another angle which I had never thought of.  The reason behind the interpretation of “Council” meaning “Inquiry Panel” was that the Inquiry Panel was acting for the Council in an inquiry and the decision should not be fettered.

It is very common to have different opinions in statue interpretation.  The cannons (rules) for statute interpretation often lead to different meanings for the same statute.  But legal advice, like medical advice, is not just talking about experience and innovation.  It needs to be supported by evidence.  In legal issues, apart from reasoning, there need to be statutes, past decisions or authorities to support the view.  Important areas of concern included whether there had been review under Section 21(4B) before, whether there had been any discussion concerning Section 21(4B) before, either in the Council or elsewhere in the courts, and whether there had been any citation concerning the interpretation of the word “Council” in the MRO.

My humble opinions and opinions from my learned friends are listed as follows:

1. Section 2 of the MRO defines “Council” as the Medical Council of Hong Kong established under section 3.  And section 3 of the MRO governs the establishment of the Medical Council with the 28 members.
2. The word “Council” in section 21 (4B) is in capital letter
3. The Chinese translation for Council in section 21 (4B) is醫務委員會
4. Section 21B lists out details of meetings of Council for purpose of an inquiry.  It refers to members of the inquiry panel as “members of the Council” and “assessors”.  This means that the inquiry panel cannot mean the “Council”.
5. Even when the Inquiry Panel represents the Council at a particular inquiry, it would not replace the Council.  An analogy is a decision made at a particular Council meeting with a particular composition of Council members present is a decision of the Council.  But the decision can still be reviewed by the Council with a different composition later.
6. In terms of reasoning, it is perfectly reasonable to instill a review mechanism by the full Council.  When either party of the inquiry is not satisfied with the decision, he can only go to court for an appeal or a judicial review.  If the Council finds any problem with the decision, it can initiate a review.  This is the spirit of professional self-regulation.  The regulatory body (Medical Council) can take the initiative to review a decision if it is problematic.  It is not logical to have our hands tied to face the only solution of going to court.
7. It is more likely that this safety mechanism is built in for the Council than the Inquiry Panel because in a short period of 14 days, the Panel members are unlikely to come to any new considerations out of their own.  It is not talking about to fetter the decision of the Panel.  Afterall they represent the Council and the Council be given the power to review a decision is logical.  The quorum of an inquiry is five members and a meeting of the Council needs a quorum of thirteen members.  The decision of the Council also needs a majority vote.  All these, together with the 14 day limit, help to prevent the Council from making a review without much consideration.     

Credibility of Disciplinary Body
The interpretation of this section of the MRO is very important.  It affects the power of the Council to review decisions made in inquires.  It also affects the definition of “Council” in the MRO.  The credibility of a disciplinary body depends on its determination in truth seeking.  It is only through truth seeking and upholding truth impartially that justice can be done and justice can be seen to be done. 

Conclusion 

In a recent decision, the Medical Council considered charge item marked “Laboratory Tests” on the receipt as “rebate in disguise” if that charge exceeded the amount the laboratory charged the doctor.  This could be a precedent decision and followed in future inquiries.  Some doctors found the decision problematic and requested for a review under the Medical Registration Ordinance, aiming to have discussion and clarification with the Council.  However, the request was rejected with a simple legal opinion.  Many doctors in private practice can be affected by the decision and are now at risk.  I would simply refrain from writing the term “Laboratory Tests” as a charge item on receipts. This may be the simplest, though passive, way to handle this matter.

 

 

(Source: HKMA News September 2009)
 

Honest but mistaken belief

A gentleman was brought to court by the police for practising as a doctor without registration.  Basically, he was a doctor before his name was removed from the General Register by the Medical Council for his failure to pay the annual registration fee.  He was acquitted by the Magistrate Court because the judge found him honestly believed that his name was still on the Register.  Some doctors took this verdict very seriously, to the extent that the mere existence of the Medical Council was challenged.  This was understandable as the main function of the Medical Council is to regulate doctors through the formation of a register and to control the entrance, the staying in, and the removal from the register.  However, the prosecution did not lodge an appeal against the decision.

Essentially, the fact of the case was that the doctor, after practising for around 10 years, failed to renew his annual practising certificate before June 30, 2007.  His name was thus removed from the General Register by the Medical Council in July 2007.  He maintained that he did not receive any letter concerning the notice of payment or his removal from the Register.  He continued to practise until there were some problems with the sick leave certificates issued by him in January 2008.  He contacted the Medical Council and somehow got a false belief that he could continue to practise two weeks after he paid for the fee.  Things turned out that his name was then not on the Register and he only found this out when there was again problem with sick leave certificates issued by him in April 2008.  He stopped practising since then.  By that time the Medical Council had referred his case to the police and he faced charges of practising medicine or surgery while not being registered.  According to S. 28(2) of the Medical Registration Ordinance, he was liable on summary conviction to a fine at level 6 and to imprisonment for 3 years if he was found guilty.

He succeeded in defending his case by the “honest but mistaken belief” defense as in the case Attorney General v Fong Chin Yue and Others ([1994] HKCFI 184; HCMA000604-1994, 25 October 1994).  This case concerned the Dutiable Commodities Ordinance (DOC).  The appeal turned out to be complicated analysis of statues with strict liability, whether there was any defense for such statutes, and the Bill of Rights.  In simple terms, even for statues which appeared to infer strict liability on the defendant, there existed a defense for the accused to show (on a balance of probabilities) that he believed for good and sufficient reason, though erroneously, that the provisions had been complied with.  This was because “to interpret the relevant provisions as requiring proof by the prosecution of knowledge would leave a gap through which the guilty could escape in droves.  At the same time, to interpret those provisions as precluding a defence of reasonable belief would leave a gap through which the innocent may fall to their harm.  By no proper canon of construction can the intention to create either of those gaps be attributed to the Legislature.”  And, “Magistrates will of course approach such defences with fairness and common sense: being neither cynical on the one hand nor gullible on the other hand.  Generally, the less sophisticated an accused and the more humble his position, the less is to be expected from him for the purpose of making out his defence.  And of course the relevant considerations include: the quantity and value of the goods involved; whether the accused gained or stood to gain by offending; the extent of any such gain; and how it compares with what he could earn by honest means.”  So the defendant doctor was acquitted on the defence that he forgot to renew his practising certificate and he honestly believed that he could practise medicine.  There was no motive for him to avoid the payment of only $420 and he had never done it before.

Another interesting provision about honest but mistaken belief is found in Section 4A of the Dangerous Drugs Ordinance.  This section deals with trafficking in purported dangerous drug.  It spells out that it is an offence to traffic, or to offer to traffic, in any substance represented or held out by him to be a dangerous drug but which is not a dangerous drug in fact.  This means that if someone honestly believes that he is in possession with him a certain amount of say ketamine and confesses to the police when caught.  He can be charged under this section of the Dangerous Drugs Ordinance even if the substance eventually turns out to be some harmless substance totally unrelated to ketamine.

Talking about dangerous drugs, the Chief Executive announced during the Legislative Council’s Q&A session on 7 July 2009 that the Government would escalate the campaign to fight the war on youth drug abuse.  He would personally lead the administration and oversee a series of measures including community awareness and mobilization, community support, drug testing, treatment and rehabilitation and law enforcement.  The HKMA has always been in support of beat drugs activities. The recent focus is on the formation and joining of district networks of beat drugs teams comprising family doctors, social workers from Counseling Center for Psychotropic Substance Abusers, school social workers and doctors from different specialties including Substance Abuse Clinics from HA hospitals. We organized a press conference to introduce our work to the mass media on 11 July 2009.  And I shall report our work to the Chief Executive at the Action Committee Against Narcotics (ACAN) special meeting on 16 July 2009.

(Source: HKMA News July 2009)

Be Prepared

While we are always warned to maintain high vigilance against Avian Influenza, the world was suddenly hit by a new H1N1 Influenza virus, the Swine Influenza.  Starting 18 March 2009, there were cases of influenza-like illness in the Federal District of Mexico.  The number of cases increased steadily from March to April.  On 23 April 2009, there were more than 854 reported cases, of which 59 died.  Amongst the Mexican cases, 18 were laboratory confirmed in Canada as Swine Influenza A/H1N1.  On 24 April 2009, the United States Government reported 5 confirmed human cases of Swine Influenza A/H1N1 in California and 2 in Texas.  The Swine Influenza A/H1N1 viruses spread quickly to a raft of countries within days.  On 29 April 2009, apart from Mexico and United States, seven more countries officially reported 148 cases of Swine Influenza A/H1N1.  They included Austria, Canada, Germany Israel, New Zealand, Spain and the United Kingdom.  On the same day, Dr Margaret CHAN, Director-General of the World Health Organization, decided to raise the level of influenza pandemic alert from phase 4 to phase 5.

In Hong Kong, the confirmed case involved a 25-year-old Mexican man who stayed in the Metropark Hotel in Wanchai after arriving from Mexico via Shanghai on 30 April 2009.  To safeguard the wellbeing of the community, Dr. LAM Ping Yan, Director of Health, issued an order [under Section 25 of the Prevention and Control of Disease Ordinance (Cap 599)], which required the staff and residents of the Metropark Hotel to be quarantined for a period of seven days.

Luckily, the pandemic seemed to be under control.  However, doctors and citizens alike should be prepared for the worst.  In this issue, our President and Immediate Past President both write on this influenza attack.

Also in newspapers, you might have read about the decisions of the Medical Council recently.  Most of you would focus on the doctor whose name was removed from the General Register for an indefinite period.  The order was also made to take effect immediately upon publication in the Gazette, which was referred to as an “unprecedented move” so as to prevent any delay in the removal.  The charge which caused this heavy sentence was that “between 1997 and 2007, he had inappropriate personal contact with Patient A.”  Medical disciplinary bodies always take very serious views on affairs, especially sexual relations, between doctors and their patients.  Patients are considered vulnerable because they are suffering from illnesses.  They go to their doctors to seek help.  They trust their doctors and are dependent on them.  Abusing doctor-patient relation amounts to serious professional misconduct.  Psychiatric and paediatric patients are taken even more seriously.

However, another appeal case (CACV 403/2006) might have escaped from your attention.  The doctor was found professional misconduct because she “sanctioned, acquired in or failed to take adequate steps to prevent the appearance of her name, title, photographs and statements in an advertisement in (a newspaper) on (a date), in which she endorsed (products) offered by (a company) with which she had a financial relationship.”  She succeeded in the appeal and the decision was set aside.  Three issues were raised for the appeal:

1. It was wrong for the legal adviser to have been present during the deliberations of the Council and to have been involved in the drafting of the findings.
2. It was unfair to be prosecuted for breach of a norm (that doctors are prohibited from public endorsement or promotion of a commercial brand of … health related products) that had never been articulated.
3. The prohibition was not necessary or out of proportion.

All three judges agreed that the appeal succeeded because of the first issue.  Hon Le Pichon JA pointed out that he did not consider that the other issues had any merit and would have dismissed the appeal but for the first ground.  Hon Stone J in para 88 said, “In my judgment in the factual circumstances of this case this appellant has been fortunate to succeed on this appeal, which, save for the successful procedural point invoked in her favour by her eminent leading counsel, otherwise had little intrinsic merit.”  And he explained this in a very long sentence in para 81, “It must have been as plain as a pikestaff to this lady that the gravamen of the complaint was that she had impermissibly lent the medical credentials of a practising doctor to the health product marketed by her company in what, in my view, was an entirely unsubtle (if not brazen) press ‘Advertorial’, wherein the written and pictorial content of the article in question; nor is this a prescriptive norm of which she possibly could have been unaware, in light of her seniority within a profession which has always endeavoured to restrict approbation of commercial products by practitioners, and frequently has advertised this fact; the further suggestion that this appellant, the managing director of this company, had had no control over what was written in this ‘Advertorial’ in my view was risible.”

The main impact to the profession came from the first issue.  For many years, it had been a practice for the legal advisor to stay with Medical Council members and Assessors during their deliberations and to help drafting written judgments.  Hon Le Pichon JA pointed out in para 16 that “The authorities cited made clear, in no uncertain terms, that communication in any form by a non-member with a tribunal in the absence of the parties would give rise to a perception of unfairness, that justice would not be done inasmuch as the tribunal might have been influenced by what might have been communicated.”  Hon Cheung JA further explained this in para 63, “Article 10 of the Bill of Rights provides that in the determination of, among other things, a person’s rights and obligations in a suit of law, he is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law….  As part of the protection given by Article 10 one would expect a competent, independent and impartial tribunal to, first, deliberate the decision by its own members without the presence of a non-party and, second, to write its own reasoned decision.”

In summary, because of the presence of the legal advisor in the deliberation and his drafting of the judgment, the doctor succeeded in the appeal.  She was not guilty of professional misconduct because the trial was considered not a fair trial.  Then, how about all the other trials?  There were many cases which had been decided with the legal advisor present during deliberations and drafting judgments.  Will they also succeed if they do appeal based on the same reason?  Even the above mentioned doctor, who was removed from the General Register for an indefinite period, might appeal on the same ground.  Of course there will be limitation periods for appeals, and there remains an option of ordering a re-hearing for a series cases that succeed on procedural grounds.  This case is still a huge challenge to the Medical Council.  Please be prepared.

(Source: HKMA News May 2009)

Youth Drug Abuse

 

On February 27, 2009, five Form 2 school girls from Sheung Shui Government Secondary School fell ill in school after taking katamine during lunch time and were sent to hospital.  Two fifteen-year-old boys, who were suspected to provide the students with ketamine, were charged with trafficking in a dangerous drug.

As a Hong Kong citizen, I read in newspaper news related to youth drug abuse nearly every day.

As a member of the Action Committee Against Narcotics (ACAN), at every meeting I face statistics showing a continuously rising trend of young people abusing drugs including ketamine.

As a doctor joining the Project Mac (a pilot project of the ACAN to help young drug abusers by providing body check-ups and motivational interviews with doctors), I meet many teenagers who started their first abuse before the age of 12.  Many of them do not attend school, do not work, and are in debt because of regular drug abusing.

As a family doctor, I now and then encounter teenage patients with drug abuse problems in my daily practice. Some of them come for sick leave, the other come for symptomatic relief.  However, some of them do come to ask for help.  I was very sad to see a university student who developed psychosis after taking Ecstasy in several occasions in Karaoke because of peer pressure from classmates.

I believe that doctors can help young dug abusers.  We can do it as an individual doctor by increasing our alertness in screening and identification; and by sharpening our knowledge and technique in intervention.  The HKMA can take the leading role in organizing seminars and forming district networks.  In cooperation with the ACAN, we are organizing a Certificate Course on the Management of Drug Abuse Patients for Family Doctors.  There will be eight sessions of seminars and discussions, together with the formation of supporting networks between our Community Network and local NGOs.

The government also has set up the Task Force on Youth Drug Abuse to review current anti-drug measures, to spearhead cross-bureaux and inter-departmental efforts, and to enhance collaboration among NGOs, stakeholders and the community, with a view to identifying areas of focus and improvement.  I have invited the Chairman of the Task Force, Mr. WONG Yan Lung, SC, JP, Secretary for Justice, for an interview.  He shared with us the work of the Task Force and discussed how doctors and HKMA could fit in the battle against drug abuse.

Talking about legal matters, on March 2, 2009, the judgment handed down from the Court of Final Appeal with respect to the case of Frank Yu Yu Kai and Chan Chi Keung (FACV No. 11 of 2008) left some doctors, especially anesthetists, feeling uneasy.  The case concerned the claimant suing the defendant (an anesthetist) for clinical negligence because of radial nerve injury after radical prostatectomy.  The claimant failed in the High Court (HCPI 230/2004) but succeeded in the Court of Appeal (CACV 433/2006).  The anesthetist lodged an appeal to the Court of Final Appeal and the judges (by a ratio of 4:1) found that the burden of proof fell on the anesthetist (who was the defendant in the claim) to proof that he had discharge his duty of care to the patient and to explain why the radial nerve injury happened.  They found that the anesthetist failed to do so.  He was found negligent and therefore had to pay damage to the patient.

The gist of the case hinged on the maxim “res ipsa loquitur”, which is a Latin phrase meaning “the thing speaks for itself”.  In a clinical negligence case, the claimant has to prove that the defendant has breached his duty of care owed to the claimant, and causing damage to him which is not too remote.  The most difficult part is the proof of causation.  “Res ipsa loquitur” concerns causation and a classical description can be found in Scott v London and St Katherine Docks Co[1]: “where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that he accident arose from want of care.”  It is said that when this maxim is successfully invoked by the claimant, it can have the effect of shifting the burden of proof from the claimant and the defendant has to prove that he is not acting negligently in causing the damage.

But what was the problem here?  Quoting Mr. Justice Litton NPJ, the only dissenting judge, at para 133: “The event or ‘thing’ must be so clear-cut that a court can say with assurance: Unless the defendant can come forward with some credible explanation, it must be concluded that want of care produced that result.  As stated in Clerk & Lindsell on Torts [19^th ed.] para. 8-152, common experience suggests that in the absence of negligence, bales of sugar do not usually fall from hoists, barrels do not fall from warehouse windows, cranes do not collapse, trains do not collide and stones are not found in buns.  In the medical context because of the complexity of the human body and the fact that medical science is perpetually evolving and changing, things are seldom so clear-cut.”

However, the majority view, as given by Mr. Justice Ribeiro PJ, was that: “.…(Res ipsa loquitur) is an approach whereby, in cases where the plaintiff is unable to say exactly how his injury was caused but, consonant with his duty of care, one may expect that defendant to know, one asks whether the evidence has raised a prima facie case against the defendant and if it has, whether the defendant has, at the end of the day, dispelled that prima facie case by providing a plausible explanation for the plaintiff’s injury which consistent with the absence of negligence of his part.” (para 43)  He considered that this approach was also applicable in medical negligence case because the well recognized purpose of the rule was “to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant.” (para 45)

How about the scope of the decision?  Does it apply to all medical negligence cases?  Mr. Justice Ribeiro PJ said, “Although the approach will not be important in medical negligence cases where the issues of causation and negligence are wholly fought out on competing evidence, it seems to me obvious that in a significant number of such cases -particularly where the patient is unconscious when the injury is incurred- the res ipsa loquitur or prima facie case approach will be indispensable.” (para 46)  Thus this decision might affect many medical negligence cases concerning procedures under anesthesia.

           

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[1] (1865) 3 H&C 596 at p 601; 159 ER 665 at p 667

(Source: HKMA News March 2009)

 

恭喜發財！

In January, we had the Chinese New Year.  I would like to wish everyone a prosperous year of Ox.  Apart from lion dance, another ritual was the worshiping of Che Kung (車公) on the second day of the New Year.  On January 27, Mr. LAU Wong Fat, Chairman of Heung Yee Kuk, drew a fortune stick for Hong Kong at the Che Kung Temple in Shatin.  It read:

君不須防人不肖 眼前鬼卒皆為妖

秦王徒把長城築 禍去禍來因自招

The unlucky fortune stick No. 27 was about the story of Qin Shihuang (秦始皇).  It said that there was no need to be aware of misbehaved people, because those serving you could all be considered evil.  Emperor Qin failed to protect his Empire by building the Great Wall, because it was himself who caused the Empire’s downfall.

Che Kung was a great generalissimo of the Song Dynasty (宋朝).  He was worshipped in Hong Kong mainly because of his act as a doctor.  He was famous for removing epidemics in Sai Kung and for curing people.  It would be interesting to look at the fortune stick from the viewpoint of a medical practitioner.

The first two sentences reminded me of the handling of patients with infectious diseases and the collection of specimens.  In the 1980s, blood samples from patients known to have HIV or hepatitis B were tagged with red labels to alert handlers of the infectious nature.  Then starting from the 1990s, this practice was stopped.  The reasons behind were mainly that all specimens should be handled with care for the potentially infectious nature, and that privacy of patients should be respected.  I think this attitude should also be adopted by leaders.  Advices and proposals should be handled with care and assessed by objective means no matter by whom the advices are given.  While doctors and laboratory technicians are protected by gloves and gowns, leaders should be protected by the general principles of “doing no harm”, “doing good” and “being evidence-based”.

In February (starting Feb 9, 2009), police officers in uniform can require a person who is driving or attempting to drive a vehicle on a road to conduct a breath test without the need for reasonable suspicion.  The Road Traffic Legislation (Amendment) Ordinance 2008 (No. 23 of 2008) had been passed to amend the Road Traffic Ordinance, the Road Traffic (Driving Licences) Regulations and other subsidiary legislation under that Ordinance and the Road Traffic (Driving-offence Points) Ordinance so as to - 

• (a) increase the term of imprisonment of the offence of causing death by dangerous driving under section 36 of the Road Traffic Ordinance from maximum of 5 years to 10 years;
• (b) increase the penalties on offences under sections 39, 39A, 39B and 39C of the Road Traffic Ordinance (disqualification from driving for not less than 3 months on first conviction and not less than 2 year on second and subsequent convictions), and provide police officers with a general power to conduct screening breath tests;
• (c) introduce a pre-screening device for the purposes of the new section 39B(1)(a) of the Road Traffic Ordinance; 
• (d) provide that certain traffic offenders are required to attend driving improvement courses; 
• (e) extend the probationary driving licence scheme to novice drivers of private cars and light goods vehicles; 
• (f) provide for the review by a Transport Tribunal of certain decisions made by the Commissioner for Transport to refuse to issue, reissue or renew driving licences or driving instructor's licences or to cancel those licences; and 
• (g) make related, consequential and other minor amendments. 

(The Government of the Hong Kong Special Administrative Region Gazette, Legal Supplement No. 1 to No. 27, Vol. 12, 4 July 2008, pp. A961-A1059)

An interesting document to compare was the “Review of Drink Driving Legislation” by the Panel on Transportation of the Provisional Legislative Council in January 1998.:

“The Administration maintains its view that random testing should not be introduced at this stage due to the following reasons: 

1. the setting up of road blocks for random testing causes further congestion to our busy roads;
2. substantial additional Police resources will be required (additional capital and recurrent cost are estimated to be $2.4 million and $20 million respectively); and
3. the legal advice that although it is debatable whether the practice involves an interference with privacy within the meaning of the Bill of Rights and therefore should not be ruled out completely on human rights grounds, the introduction should only be seriously considered if there is clear evidence, which there is none, that the current drink driving laws are not proving effective.”

Doctors need to be alerted about this recent change, as this may be related to professional misconduct and may endanger our registration.  Section 27 of the Code of Professional Conduct 2009 concerns criminal conviction.  S.27.1 reads: “A doctor convicted of any offence punishable by imprisonment is liable to disciplinary proceedings of the Medical Council, regardless of whether he is sentenced to imprisonment.  A conviction in itself will invoke the Council’s disciplinary procedure even if the offence does not involve professional misconduct.  However, the Council may decide not to hold an inquiry where the conviction has no bearing on the doctor’s practice as a registered medical practitioner.”  And s.27.2 reads: “A particularly serious view will likely be taken in respect of offences involving dishonesty (e.g. obtaining money or goods by deception, forgery, fraud, theft), indecent behaviour or violence.  Offences which may affect a doctor’s fitness to practise (e.g. alcohol or drug related offences) will also be of particular concern to the Council.”  Section 11 of the Code concerns abuse of alcohol and drugs.  S.11.1 reads: “Convictions for offences arising from drunkenness or abuse of alcohol or drugs (such as driving under the influence of alcohol or drugs) are likely to be regarded as professional misconduct.”

(Source: HKMA News February 2009)