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 a 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)

School Drug Tests

There is seldom a pilot scheme which receives so much attention and invokes so much discussion.

On 7 July 2009, Chief Executive Donald TSANG announced at his Legislative Council Question and Answer Session that “Secondary schools in Tai Po will be invited to join the pilot scheme for school-based voluntary drug testing.  Voluntary drug testing services at community level will be launched as soon as possible and the Government will study the introduction of hair-testing facilities.”  (from news.gov.hk)

This was followed by various consultation meetings and many opinions had either been expressed at meetings or voiced openly.  The debate was heated up rapidly after an interview of Bishop John TONG Hon appeared in TVB News on July 31.

“Catholic Bishop spoke out against voluntary drug-testing scheme” was the title found in news archive of the TVB website.  In the Cantonese interview, John TONG said that he would not “提倡” drug testing at schools.  In TVB Pearl, the English narrative quoted that “John TONG believed that drug testing is not the answer”.

In a press statement on August 3, the Hong Kong Catholic Social Communications Office denied media reports saying that Bishop John TONG Hon did not support the drug testing scheme.  Mary MA of The Standard wrote on August 6: “Severe tropical storm Goni left Hong Kong pretty well unscathed.  However, the drug-test row between Catholic Church Bishop John TONG Hon and TVB journalist LEE Ka-man has become a storm in a teacup on the media front….  It all began when Bishop TONG made an apparent U-turn on his earlier remark that the church would not support the government's voluntary drug-testing scheme at schools….  In a press statement, the church accused TVB of having distorted TONG's original remarks through editing…  So when the bishop's statement landed in the TVB newsroom, LEE, the assistant news editor who interviewed TONG, hit back with a public response - a move that was out of character and certainly unprecedented….  In her public statement, LEE highlighted the conversation she had on Monday with Dominic YUNG Yuk-yu, director of the local diocese's social communications office.  She said YUNG had told her he did not spot anything wrong with the news broadcast, adding that Bishop TONG also praised it.”

Principal Teresa CHAN Kam Tim of Valtorta College in Tai Po accused TVB of inaccuracy in reporting that she “originally agreed to join the drug scheme,” but now needed to reconsider.  (from The Standard, 6 August, 2009)

Vicar-General Father Michael YEUNG Ming Cheung said "If a student in a school is found to be on drugs, does it mean the other 1,000 students have to be tested?  It is impossible, as it will take lots of time.  But then, when you take 10 to 20 students for testing, the question will be 'why are these students picked?' It will stigmatize these students."  (from The Standard, 3 August, 2009)

On 10 August 2009, Privacy Commissioner for Personal Data, Roderick WOO Bun cast doubt in his letter to Secretary for Education, Michael SUEN Ming Yeung, and aired openly that: "While it is doubtful whether all students have the requisite capacity to give genuine consent, the Personal Data (Privacy) Ordinance does not give parents or guardians the authority to give consent on behalf of a minor."  He added that the situation had to be resolved by new legislation.  (from The Standard, 11 August 2009)

Discussion turned into pointless argument when the Catholic diocese’s Social Communications Office director Dominic YUNG Yuk Yu suggested school principals, teachers, celebrities and government officials to take drug tests with students.  Nevertheless, Undersecretary for Education Kenneth CHEN Wei On said he would take a voluntary drug test if students thought that it was important to them.  (from The Standard, 11 August, 2009)

The following are some of my observations and opinions on this matter:

• There seem not enough consultations.  There also seem not enough channels for people and stake-holders to air their concerns.
• Opinions could be grouped into 5 categories:

1. Emotional expressions and temptations to say something just for the sake of having a say in the subject matter
2. That school drug tests won’t work
3. That there are other better methods
4. Logistic concerns
5. Infringement of rights and privacy of students

• For category 1, they cannot be rationally discussed.

• For category 2, it is difficult to tell for sure that the scheme won’t work.  There are experiences from abroad, but both the culture and school environment are very different from the situation in Hong Kong.  At least theoretically, random drug test can serve deterrent effects on students.  It can provide a chance for parents to openly discuss drug abuse with students when they need to return the consent forms.  The scheme can also provide a good “excuse” for students to refuse offers from student dealers at schools.  And, after all it is only a pilot test to study whether voluntary drug testing at school will work or not.

• For category 3, surely school drug testing is not THE method to solve youth drug abuse.  But there exists no single method which can solve the problem alone.  Young people abuse drugs for different reasons.  It is rational to tackle this problem by adopting different approaches and different methods.

• For logistic concerns, there is always room for improvement.  Some of the fears arise from misunderstanding of the scheme, and some arise out of ignorance of the scheme.  Pilot testing is a good start to smooth out logistic hiccups. 

• They final concern is the real concern, which governs the existence of the scheme.  There needs to be thorough consideration on whether there is infringement on students’ rights and privacy.  If there is, whether what the scheme can achieve warrants the infringement.  If it warrants, how to minimize the harm done?  After all, school is a special environment where a group of minors gather with the objective of learning.  High risk behaviours like drug abuse can be contagious.  Discipline is very important.  

 (Source: HKMA News August 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)

 

Prisoner of the “stage” ?

June marks the start of hot summer.  It’s usually less busy for clinics.  From June 1 to June 6, I went for an Alpine driving tour.  Our team consisted of ten cars with two instructor cars.  We started driving from Ingolstadt (a town near Munich, Germany) to Oberaudorf (Germany), where we then drove to Kitzbuhel (Austria) via Zell am See (Austria).  From Austria, we drove to Mals (Italy) via Bruneck (Italy) and Meran (Italy).  From Italy, we drove back to Austria via Landeck (Austria) & Lermoos (Austria), and finally back to Munich (Germany) via Neuschwanstein (Germany) and Murnau (Germany).  In this three-day driving tour, I realized that this kind of trip was in fact dangerous.  We were driving on unfamiliar routes with unfamiliar, over-powered cars, under the influence of food, a little bit of alcohol and jet-lag.  It was lucky that no major accidents happened.  Also, I confirmed that I did not need any super car as the speed and control were outside my daily function range.

While I was out of town, I missed a lot of happenings as reported in the newspaper.

Our President be investigated?

Our President, Dr. TSE Hung Hing, was challenged the eligibility for candidature as Elected Member of the Medical Council of Hong Kong.  Dr. TSE was involved in a traffic accident, was charged with careless driving and was fined HK$1,000 in July 2008.  He reported the incident to the Medical Council Secretariat afterwards.  Nevertheless, he failed to declare the case again when submitting the application form for re-election as Council Member in August 2008.  On June 3, Dr. TSE’s accusation of “false declaration” was discussed in the Medical Council Meeting.  Prof. LIEH-MAK, Chairman of MCHK, emphasized that she was handling the case according to law and insisted referring the case to the police for follow-up investigation.  The HKMA Council Members showed their discontent and left, resulting in an early adjournment of the meeting.

In this issue, there are several articles writing on this topic.  I am not going to write on this, but rather to join them by making up a photo to tease our President on the ultra-remote possibility that he would be sent to jail.  In fact the bars are made of chocolate and I guess the prisoner can just free himself by eating his way out.

Youth drug abuse

On June 2, four secondary students (Rosaryhill School, Stubb's Road) were caught taking drugs on the school premises.  The school did not expel the students.  Instead, they were suspended for two weeks.  On June 4, three Form Two teenagers, still dressed in their school uniforms (Tin Shui Wai Pak Kau College), were found unconscious in a park in Tin Yat Estate in Tin Shui Wai.  The boys, aged 14 and 15, were taken to Tuen Mun Hospital and were arrested.  On June 6, two 15-year-old girls were found dazed on the Golden Beach in Tuen Mun.  Together with other two young women, they were arrested on suspicion of taking ketamine.

As a member of the Action Committee Against Narcotics, and based on my experience in dealing with young drug abusers, I would say the above cases are again the tip of an iceberg.  The HKMA is always supporting the government’s anti-drug policy.  We have joined the “Path Builders” youth care initiative, so as to put more focus and effort to the youngsters.  We have co-organized with the Hong Kong Council of Social Service (HKCSS) the Beat Drugs Seminar on March 1 2009 to promote "Team Approach in the Community-based Intervention of Substance Abusers".  Followed by that, we have the “Certificate Course on the Management of Drug Abuse Patients for Family Doctors”.  The Course not only increases the awareness and knowledge of drug abuse, but also encourages family doctors to incorporate the screening and brief intervention processes into their daily practice.  To establish the links and referral services between doctors and NGOs on this subject, the HKMA Community Networks have also been involved.  Coming efforts include the cooperation with the Law Society to produce Beat Drugs Pamphlets for parents and students, and the next Beat Drugs Seminars on “Laboratory Tests on Drug Abuse”.

Teenage girls in court for knife-point taxi robbery

In the early hours of June 1, a gang of three teenage girls aged between 13 and 15, purportedly pulled out knives and robbed a taxi driver of HK$660 and a mobile phone.  The trio got on a taxi from Siu Sai Wan to Kwai Chung Sports Ground.  On arrival, the one in the front pulled out a knife and one of the two in the back put the driver in a headlock.  Having stolen the money and mobile, they fled.  The taxi driver tried to run after the girls, but then he returned to his taxi to give chase.  A passing ambulance crew joined the chase and held two of the girls.  The third girl, who fled the scene on foot, turned herself in to police on the next day.  This news was highly alarming and I suspected that it was related to youth drug abuse also.

June 4^th and Papa Li Tzar Kai

Hosted by Hong Kong Alliance In Support Of Patriotic Democratic Movements of China, a candle-night vigil was held at Victoria Park in Hong Kong on June 4, 2009, to commemorate the 20th anniversary of the Tiananmen Square Massacre.  It was reported that an estimated of 150,000 attended the ceremony, which had a record turnout when compared to the first anniversary held in 1990.  Interestingly, on June 5, the front page of Apple Daily was “李澤楷、梁洛施生仔”.  The outbreak of the news became the hottest topic among most Hong Kong people.  Li Tzar Kai, Richard, and his girlfriend, LEONG Lok Sze, Isabella, gave birth to a boy in Canada on April 26.  Li Ka Shing named the baby “Cheung Chi”, which meant “being self-disciplined”, while Richard and Isabella named him “Ethan”, which means “strong, firm and impetuous”.  Li is always referred to as “superman”.  This time he again used his super power and overshadowed the news of June 4^th in Apple Daily.

(Source: HKMA News June 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) 

March, April, May

On 6 March 2009, the announcement of the contamination of a pharmaceutical product, Purinol (manufactured by Europharm Laboratories Company Ltd), marked a spate of drug-related blunders.  The next day, the HKMA advised members to stop using products from the said company until matters had been clarified by the Department of Health (DH).  A similar official advice from DH reached doctors on 10 March.  On 19 March 2009, unlicensed packaging of Amitriptyline tablets by Unipharm Trading Company was reported.  Two batches comprising 4,049 bottles of 25 mg tablets and one batch comprising 285 bottles of 10 mg tablets were recalled from public hospitals, public clinics, private hospitals, private doctors and pharmacies.  On 22 March 2009, two batches of Water for Injections were recalled from the Hospital Authority (HA).  According to initial investigation by the DH, the actual volume found in the two batches of products (ranged from 120 ml to 130 ml) did not match with the declaration of the label of each bottle (100 ml).  On 25 March 2009, during a current drug stock-taking exercise, the HA reported that the expiry dates shown on the labels of a same batch of Propranolol 10 mg tablets supplied by Unipharm Trading Company were different.  It was suspected that the cause of the discrepancy was related to an isolated computer malfunctioning when preparing the labels.  Then, reports concerning unregistered eye drops and other products came out.  More reports on unregistered and defective products are foreseeable.

On 24 March 2009, Mr. Donald TSANG Yam Kuen, the Chief Executive, said that the drug blunders would be taken seriously and investigations would be carried out for various incidents.  A high-level committee chaired by Ms. Sandra LEE Suk Yee, Permanent Secretary for Food and Health (Health), would conduct a comprehensive review of the whole system in a bid to regain public confidence.  It is true that these incidents adversely affect the confidence of citizens (and doctors) in pharmaceutical products and the statutory role of the DH in the control and monitoring of such products.  In this issue, our President and Vice President analyze the drug blunders in the President’s Message and the Forum respectively.

On 4 March 2009, our President and two of our Council Members were elected Chairmen of three Committees of the Medical Council of Hong Kong.  Dr. TSE Hung Hing was elected Chairman of the Ethics Committee.  Dr. CHEUNG Hon Ming was elected Chairman of the Licentiate Committee.  And Dr. CHIU Shing Ping, James, was elected Chairmen of the Health Committee.  Do you know the composition and function of these Committees of the Medical Council?  In the Interview Session of this issue, I invited the above three new Chairmen to introduce themselves and the Committees to our members.  Talking about elections of the Medical Council, one would immediately recall our Immediate Past President appearing in the media.  Dr. CHOI Kin lost in the election for Chairman of the Medical Council.  He again spoke out and provided some heated topics for discussion in the Interview.  

On 12 May 2008, the Great Sichuan Earthquake occurred in Sichuan province of China.  The earthquake had a magnitude of 8.0 Ms, lasting for around 3 minutes.  Official figures revealed that more than 90,000 people in total were dead or missing in the tremor.  It has been nearly one year’s time after the catastrophe.  Apart from the Hong Kong Medical Association Charitable Foundation’s hard work in emergency appeal, we do have great concerns about the recovery and redevelopment of the areas.  The 11^th Beijing/Hong Kong Medical Exchange will therefore be held in Chengdu, Sichuan instead of Beijing on 24 & 25 October 2009.  The main theme of the Meeting is “Rehabilitation after Disaster”, featuring aspects like orthopedic rehabilitation, rehabilitation of amputees, rehabilitation of spinal cord injuries, psychological rehabilitation etc.  A half-day visit will also be arranged for examining the ruins of earthquake and related medical institutions.  For details, please look out further announcement from the Secretariat.

On 24 May 2009, the Certificate Course on the Management of Drug Abuse Patients for Family Doctors will begin. It is funded by the Beat Drugs Fund Special Funding Scheme.  The objective of the Certificate Course is to increase family doctors’ interests, awareness and knowledge on the problems of drug abuse.  Most importantly, it aims at empowering family doctors to lead the management of young drug abusers in a team approach.  There will be an increasing need for trained personnel when the public become more aware of the youth drug abuse problem and the practice of drug testing is promoted in schools (many of the schools start adopting the drug testing practice).  As this Certificate Course will be a one-off programme, do not miss the chance.  Please kindly find attached circular for more details and enrollment.   

(Source: HKMA News April 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)