“No more Medical Council!” I had told myself when I wrote the Editorial
last month that I should not write on the Medical Council anymore. Summer is approaching and it should be time
for fun. As shown in the photo, my bear
had refused to dress up for taking picture for illustration anymore. When I caught him, he had got changed and was
ready to play in the pool with his rubber duck. (The photo was taken in a misty day, which by
coincidence reflected the atmosphere and the environment of what I am going to
discuss.)
However, I was also caught liked
the bear. It was only when the media
approached us did we know that there had been a letter uploaded to the website
of the Medical Council to all doctors from the Chairman of the Medical Council.
It was only when a letter from the
Secretary of the Medical Council was put up for discussion in the HKMA Council
meeting did we know that the HKMA was asked to publish that letter for the
Chairman. Members of the Medical Council
confirmed that there had not been any discussion on the content of the letter
nor any discussion on the letter itself. Upon enquiry, the Chairman stated that it was
only her personal opinions. The HKMA
thus decided to decline the request for publication of the “personal letter in
the name of the Chairman of the Medical Council”. Because of the irregularity and the attention
stirred up in the media, I was asked to write something on this matter.
Everything started around
September last year when a doctor was found professional misconduct because he
charged an old-aged patient excessively for blood tests for sexually
transmitted disease with the provisional diagnosis of zoster. Most doctors might agree to the verdict of
this straight forward case. However, it
was the reason for finding him guilty and the judgment that most doctors
disagreed to and even found annoying.
The case and the judgment
Apparent facts
- A doctor charged a patient up to ten times the cost for blood tests.
- He marked the charge as laboratory tests in the receipt.
- He was then found professional misconduct for charging excessively.
- However, the reason given in the judgment for finding him guilty was that the item “laboratory charge” as stated in a receipt should be “the fees charged by the laboratories”. Charging more than that was “a rebate in disguise” and was misconduct.
Impressions
- This was an extreme case with ten times excessive charge on a relatively old aged patient without thorough discussion and time for decision.
- The inquiry panel failed to address the uniqueness of this case and instead made a general finding on technicality.
- The reasoning was super artificial, if not wrong, and dwelled on the labeling of an item on a receipt.
- By the reasoning of the judgment, a doctor would be found misconduct if: he charged one dollar more than what the laboratory billed him and at the same time he wrote that amount on a receipt as laboratory test.
- The ruling disregarded the common practice of doctors and the ambiguity posed threat to many doctors.
Implications
- To avoid being caught by the ambiguity of the judgment, it might be wise to add a clause to explain every charge on the receipt to be interpreted as including, and not limited to, consultation, handling, professional judgment and advice, rental…, and virtually everything in the world.
- The judgment was so artificial that it took the convenience of targeting the bill from the laboratory because the charge was stated clearly. This meant that when the cost could not be defined conveniently, the charge would not matter. This encouraged doctors to perform more laboratory tests in their clinic, which might not be a desirable outcome.
- All the fuss might spread to “medication fees” in the receipt in a similar sense to “laboratory tests”.
The handling by the Medical Council Chairman
Apparent facts
- The doctor appealed to the Court of Appeal and lost. His appeal was dismissed.
- The judgment from the Court of Appeal did not rule on the interpretation of “laboratory tests” or how the verdict was arrived at.
- The main focus of ruling was whether it was appropriate for the Legal Advisor of the Medical Council to give advice on the points of law and on facts during an inquiry.
- After the judgment was delivered, the Chairman of the Medical Council uploaded a personal letter addressing to all registered medical practitioners, stating that: “Arising from this case, the Medical Council wished to impress upon members of the profession that the doctor’s own fees for professional services should be clearly separated from the fees collected on behalf of laboratories for investigations. If the doctor charges fees for his own services in connection with the investigations to be performed by the laboratories, the charge should be clearly set out and explained to the patient.”
- The content of the letter and the issuing of the letter had not gone through the normal procedure of discussion and endorsement by members of the Medical Council.
- What the Chairman wanted to “impress upon” doctors in the name of the Medical Council was more than that decided in the case.
- The artificial judgment in the case ruled that when a charge was stated as laboratory test, it equated the charge billed by the laboratory to the doctor. Charging more than that stated was charging excessively (and rebate in disguise).
- However, what was stated in the letter posed a strict liability on doctors to explain charges to patients irrespective whether they were asked by patients or not.
Impressions
- The case concerned was an exceptional case with extreme charges. It was a disaster for other doctors when a general judgment was given which would affect their common practice.
- It was more disastrous when this was seized as a chance to “impress upon members of the profession” with the involvement of the media. This gave the public an impression that the exceptional case was not exceptional, but it was necessary to warn all doctors who might be behaving like the doctor concerned.
- The reason for the Medical Council to have representations from different sectors is for thorough discussion and collective decision making. It should take into consideration of opinions and voices from different aspects. Seemingly, this mechanism was not respected.
Implications
- The image of doctors was affected out of an extreme case of misconduct (in which the doctor was reprimanded only).
- New code of conduct or innovative interpretation of the code tended to arise from the inquiry level.
- Due process was not respected.
Ripples
- All these arose as ripples from the judgment of an extreme case of misconduct.
- There had been attempt to initial a review according to the Medical Registration Ordinance (MRO) so as to clarify any ambiguity and to address concerns from doctors. However, the request was disallowed because of a strange interpretation (as least it was strange to me) of the MRO saying that the word “Council” in that provision meant the inquiry panel instead of the usual meaning of the Medical Council.
- So apart from missing the chance for discussion and stopping the ripples, the Medical Council was stripped of an important power to review a decided case.
All these are dangerous precedents.
(Source: HKMA News May 2010)
