The criminal charge of indecent assault and the disciplinary charge of misconduct in a professional respect

On November 4, 2012, a young doctor was found guilty of misconduct in a profession respect after a disciplinary inquiry held by the Medical Council.  The Inquiry Panel ordered that his name be removed from the General Register indefinitely.  The Inquiry Panel further ordered that the removal should take effect immediately upon its publication in the Gazette.  The Inquiry Panel also stated that the young doctor could not be a fit and proper person to practice as a doctor and that he could not be restored to the General Register at all.  The media referred the sentencing as the heaviest penalty ever imposed by the Medical Council.  Comparisons were also made to previous cases in which the defendant doctors were found guilty in criminal courts.  In contrast, this young doctor was found not guilty for the criminal charge of indecent assault, which aroused from a similar set of events leading to his removal from the General Register.  I shall analyze all these from a legal perspective.

In April 2010, the young doctor faced a criminal charge of indecent assault after he allegedly performed per vaginal examination on and took photographs from a female patient who consulted him for herpes zoster involving the lower body.  There were two major factors for his acquittal.  First, for the charge of indecent assault, there needed to be two components: actus reus (the act) and mens rea (the intention).  The act of touching the patient’s private part could constitute the act of indecent assault.  However, the prosecution also needed to prove that the defendant did it with an intention.  For example, if you waved at a taxi but accidental touched the breast of a lady walking from behind, it would unlikely be indecent assault.  In a medical setting, consent from the patient would be a legitimate reason for the act.  So the judge had to decide on whether there was consent, or implied consent, and the scope of the consent.

Second, for a criminal charge, the standard of proof was that the charge should be proved beyond reasonable doubt.  The jury or the judge had to be one hundred percent sure that the defendant had the intention to act indecently.  In this case, the judge, after taking all material facts and statements from witnesses into consideration, satisfied himself that there was a chance, maybe a very slim one, that the defendant doctor lacked the intent to act in a criminal way.  His acts, though stupid or inappropriate, might be accounted for by his relative lack of clinical experience.

For disciplinary inquiries by the Medical Council, things were different.  One should note that if this young doctor had been found guilty of his criminal charge, he would have been charged under section 21 (1)(a) of the Medical Registration Ordinance (MRO): that he had been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment.  For this charge, he would have been judged by the inquiry panel mainly on the gravity of his offence.  And it would not have been a decision on professional misconduct.

In this actual case, an acquittal would not in itself lead to a disciplinary inquiry.  The inquiry was held because the case was referred by the Preliminary Investigation Committee (PIC) after investigating into a complaint or complaints received.  Section 21 (1)(b) of the MRO was invoked.  Basically, the young doctor was charged for conducting improper and unnecessary physical examinations; and improperly taking photographs and videos of several patients during consultations without consent.  The decision was whether he was guilty of misconduct in a professional respect.  The test for professional misconduct was set by the judge in the case of Koo Kwok Ho v the Medical Council of Hong Kong to be "whether the doctor's conduct has fallen short of the standard expected amongst doctors".  Note that there was no involvement of intention in the test.  Even when there was good intention, not to say malice ones, the doctor could be found guilty if his acts or behavior fell short of peer standards.

The standard of proof in disciplinary proceedings had been a focus of controversy.  Recently, it seemed to have been settled by a Court of Final Appeal case [Solicitor (24/07) and the Law Society of Hong Kong (2008) 11HKCFAR 117].  In para 116, it was stated that “the standard of proof for disciplinary proceedings in Hong Kong is a preponderance of probability under the Re H approach.  The more serious the act or omission alleged, the more inherently improbable must it be regarded.  And the more inherently improbable it is regarded, the more compelling will be the evidence needed to prove it on a preponderance of probability.  If that is properly appreciated and applied in a fair-minded manner, it will provide an appropriate approach to proof in disciplinary proceedings.  Such an approach will be duly conducive to serving the public interest by maintaining standards within the professions and the services while, at the same time, protecting their members from unjust condemnation.”  So, the standard of proof was not the criminal standard of beyond reasonable doubt, but the civil standard of a balance of probability with a somewhat circular logic built in.

After deciding that the defendant doctor had more probable than not fallen short of expected standards, the defendant doctor was found guilty of professional misconduct.  The Inquiry Panel ordered the removal of the name of the defendant doctor from the General Register in accordance with section 21 (1)(i) of the MRO.  This was in contrast to section 21 (1)(ii) where a time period was fixed for the removal.  Seemingly, removal without a fixed period was a heavier punishment as it appeared in the sequence in the Ordinance.  However, technically, the defendant doctor could apply for inclusion of his name in the General Register again as soon as the removal of his name was published in the Gazette.  So for a clearer message, both to the defendant doctor and to the general public, the Inquiry Panel also opined that there was practically no chance for his re-registration.

Another point to note was that the Inquiry Panel also ordered the removal to take effect immediately upon its publication in the Gazette in accordance with section 21 (1)(iva).  This meant that the Inquiry Panel satisfied that it was necessary to do so for the protection of the public.  This also added to the gravity of the sentencing as in normal circumstance, the removal order would not take effect if there was an appeal lodged.  

(Source: HKMA News November 2012)

New Medical Council Chairman, please drop your bias!

It was heart-sinking to read about the comments and accusations from the Chairman of the Medical Council on the elected members.  The following was found in the Apple Daily on April 1, 2012. 

【本報訊】醫委會改革擾攘多年，有委員曾建議改由全港醫生普選全部醫委會委員。醫委會主席劉允怡表明反對，認為由業界普選的醫生在某情況下，只會維護業界利益，醫管局引入海外醫生事件最為明顯。 

醫委會現有 28名委員， 7人由醫生直選， 7人由醫學會選出， 14人由政府委任，當中包括 4名非業界人士。劉允怡表示，由業界普選所有委員最能維護大眾利益，只是「偷換概念」的說法，令人誤以為普選一定好。以醫院管理局引入海外醫生為例，雖然市民一般贊成，但直選醫生全數反對，未有保障公眾利益。 

My first reaction was that such comments were outrageous and absurd.  The reasons were multi-folded, and would be explained in a convergence version.  First, while it was acceptable for the Chairman to give his personal opinions on how the Medical Council should be composed of, it was unacceptable for him to attack a designated group of members while they were fulfilling their duties as members of the Council by deliberating and deciding on matters during policy meetings.  The Chairman was supposed to be impartial, and to listen to members’ opinions so as to come to a decision reflecting the majority view of the Council.  In this case, the Chairman openly accused elected members of not protecting the public.  It was just like a judge, after the jury returned the verdict of guilty of murder for a defendant, openly called the odd member of the jury who voted for not guilty the bad apple of the jury.

Second, let’s forget about whether the Chairman’s statements were factual for the mean time.  The above judge-jury analogy did illustrate an important point.  In the decisions on applications for limited registration submitted by the Hospital Authority, the Council was bounded by provisions in the Medical Registration Ordinance (MRO).  We were not talking about legislation or ethical dilemma.  We were judging according to the details prescribed in the MRO, among which were whether the applications were necessary and appropriate in those given time periods and situations.  Each case was decided separately.  There was no room for consideration of public opinions, not to say that there was no means of getting public opinions on a particular case as the details were never revealed to the public.  In the judge-jury analogy, we did not expect the judge to scold the odd member of the jury and preached to him that public opinions favour finding the defendant guilty.

In fact this was exactly what I discussed and condemned in my previous Editorial.  Limited registration application was not public consultation for a new policy.  It was wrong, if not illegal, for the application side to exert pressure on members of the Council who were required by law to adjudicate on the applications according to the MRO.  It was not desirable for members to be influenced unduly, either consciously or subconsciously, by such pressure.  I have derived a three-stage test for such purpose: (1) Are there actions that can exert undue influences on members as regarded by an ordinary person?  (2) Do members realize that there exist such undue influences?  (3) Are members influenced by such undue influences?  I had gone through the three stages in the decision making process of the previous applications and I reassured myself that I was not influenced by undue influences that did exist.  I am afraid I have to gone through that once again as there are now the Chairman’s accusations.

Third, the accusations were not based on facts.  According to the discussions above, it was obviously that even if the accusations were based on facts, they were not appropriate.  However, the fact that such accusations were groundless made the whole thing even more heart-sinking.  The decisions for the applications for limited registration were made case by case.  Council Members voted by secret ballot for each application.  There was by no means for the Chairman, or in fact anyone, to know who had voted for or against a motion of approving each application.  When looking back at the cases, the voting results were dissimilar for different cases.  For example, for a senior and experienced doctor specialized in a field where such doctors were obviously lacking, most of the members voted for the motion to approve the application.  As the result reflected, there must have been many elected members who had voted for it.  It was only in some controversial cases, such as placing an inexperience doctor to a post where no local doctor was willing to take up because of unfavourable working environment, that many members voted against the motion for application.  Even in such cases, the number of members voting against were not equal to the number of elected members taking part in the decision making.  

As a member of the Medical Council elected by the profession, it hurts to hear that I have failed to protect the public.  I believe members who have voted for me would not expected me, or in fact any elected member, to behave in the described manner of looking after the privileges of the profession and scarifying the well being of the general public.  I can reassure you with certainty that the accusations are groundless.

 

 
(Source: HKMA News April 2012)