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:
- 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.
- 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.
- 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)
