A peep at my diary

May 26, not very busy, just finished reading “The Silent Counsel”.

Everyone is talking about the HA open announcement of “service resident positions for experience doctors without full registration”.  It is quite strange that it acts so high profile.  Is it exerting pressure on the Medical Council by public voices?  Would such act undermine the spirit of professional self regulation?  Afterall is this a smart move?  If a CEO of a company muddles with a statute and then finally gets mess-up, would the board be satisfied that it is the court to blame?  Well, I don’t know.  In the Mappo stage of the cosmic cycle, common sense does not apply and anything can happen.  Maybe HA can then divert the blame to the Medical Council.

As a member of the MC, I do feel the pressure here.  Of course I am not feeling the pressure to appease the public.  This is the advantage of aiming, and being no body to the public.  But as a legally trained member, I do feel the pressure to make the right decision when faced with such applications, though I seriously doubt whether there will be any.  My decision would depend on the relevant statutes.

Medical Registration Ordinance

14A. Limited Registration

(1) The Council, having regard to any representations made to it, may determine and promulgate from time to time the employment or type of employment in respect of which limited registration is appropriate or necessary.

(2) Subject to subsection (2A), where a person satisfies the Council-

• (a) that he has been selected for employment or for a type of employment determined and promulgated by the Council under subsection (1);
• (b) that he has obtained an acceptable overseas qualification;
• (c) that he has had adequate and relevant full-time post-qualification clinical experience;
• (d) that he is registered with an approved medical authority outside Hong Kong; and
• (e) that he is of good character, he shall, if the Council so directs, be registered as a medical practitioner with limited registration.

(3) The limits of a person's registration under this section shall be defined in the direction under subsection (2) or (2A) by specifying-

• (a) a period, not exceeding 1 year, as the period for which the registration is to have effect;
• (b) the employment or type of employment for the purposes of which the registration has effect; and
• (c) restrictions and conditions regarding the practice of a medical practitioner with limited registration, if any, as specified by the Council, and such registration shall have effect for the period and for the purposes of the employment or type of employment specified in the direction.

(4) The Council may refuse an application for limited registration or renewal of such registration if it is satisfied that-

• (a) the requirements of subsection (2) have not been complied with; or
• (b) the employment or type of employment to which the application relates is one in respect of which limited registration is no longer appropriate or necessary; or
• (c) it is reasonable in all the circumstances to do so.

Promulgation No. 2

Pursuant to section 14A of the Medical Registration Ordinance, Chapter 161, Laws of Hong Kong, the Medical Council of Hong Kong has determined that, until such time as the Council may otherwise determine, the following types of full-time employment are appropriate and necessary for limited registration for the purpose of the Ordinance:-

• (a) Employment as a medical practitioner by the Government for the purpose of research work or for such clinical practice of medicine or special health care services, as specified by the Director of Health;

• (b) Employment as a medical practitioner by the Hospital Authority for the purpose of research work or for such clinical practice of medicine or hospital work, as specified by the Authority;

• (c) Employment as a medical practitioner by the University of Hong Kong or the Chinese University of Hong Kong for the purpose of teaching, research, or performing hospital work, in the Faculty of Medicine; provided that those medical practitioners so registered cannot practise outside their employment mentioned respectively in (a) or (b) or (c) above.

Once again, statutes are not for ordinary people.  Can an average doctor locate the relevant ordinance, the relevant sections and the relevant promulgation to try to understand what is going on?  Basically the MRO gives power to MC to allow for employment of qualified doctors under limited registration.  This is against the full registration category by limitations of the time of less than one year and whatever limitations the MC finds necessary to impose.  The most common one is the doctor with limited registration cannot go into private practice and can only work in conditions specified by the employer.  HA is now making use of one of the categories promulgated by the MC, known as Promulgation No. 2, which allows the HA, the Director of Health and the 2 Universities to apply for full time employment for limited registration.

After studying the statutes with the three different cannons of statute interpretation, I come up with the following guidance to myself:

• The decision here is not whether Hong Kong needs more doctors, or whether HA needs some doctors abroad.  It is whether MRO s14A and Promulgation No. 2 are the correct mechanisms for such applications.

• Limited registration is meant for special circumstances.  It is a short term measure.  Therefore the time limit is set for not exceeding one year.  It is specified that during renewal, the need and appropriateness need to be assessed again.

• Using this route to solve long term or structural manpower problem is inappropriate.

• Although in Promulgation No. 2, it seems that HA can apply with whatever reasons it comes up with, the gist of the decision of whether such application will be allowed lies with subsection 4 of section 14A of the MRO.

• It should be noted that there is a subsection specifically spelling out when the application may be refused.  In consideration of an application, one needs to actively go through reasons for refusal as stated.

• 4(b) points out that the application should be necessary AND appropriate.  Note that “or” is used in the statute.  But this double negative is tricky.  It means that the supplication can be refused if one of the conditions no longer exists.  That means both are needed.

• A responsible member needs to look into whether the need is a real one.  Over expansion and poor manpower management can hardly be a real need.  Using a temporary measure for structural human resource planning is inappropriate.

• 4(c) is interesting.  The Council may refuse an application if it is satisfied that it is reasonable in all the circumstances to do so.  It confirms that the Council is expected to look at the whole picture with wide consideration of all circumstances.  It is certainly not just restricted to reasons and information stated in the application.  The Council does not need to act perfect.  It is expected to act reasonable.  What is reasonable is common sense, particularly that of the profession.

• Wooooh!  It is not easy to decide on an application for limited registration.  Hopefully, I don’t need to face many, or any.  But after working through the statutes, I feel no more the pressure.  I need to go to bed in a mindful manner. 

(Source: HKMA News June 2011)