It was quite strange that I smelt
hatred when I read the judgment handed down by the Court of Appeal on 13 June
2011 (CACV 50/2010). It was just a gut
feeling. It might not be fair to call it
hatred, but certainly there was strong emotion. It was another steroid case.
The case concerned a doctor
injected local steroid into a patient’s hand. He was then charged with giving steroid
injections to the patient without proper explanation and informed consent. He was found guilty of misconduct and was
removed from the General Register for two months.
At the Medical Council Inquiry,
the doctor maintained that he had explained to the patient about the nature of
the injections as激素 (Cortisone).
The dosage had also been explained. He did so in accordance with his standard
protocol concerning steroid injections. He,
however, had not explained the side-effects to the patient as he considered that
there would not be any side-effect for the dosage used.
On the other hand, the patient claimed
that there had never been any explanation about the injections by the doctor or
his clinic assistant. Because of trust,
she did not question the content of the injections.
This was the common scenario of
choosing who to believe by their credibility. The Inquiry Panel preferred the evidence of
the patient and found the doctor guilty. On sentencing, the following was stated: “If the case had involved only a failure to
inform the patient the nature and side effects of the steroid injections, it
would have been treated as a less serious case. We are of the view that the Defendant knows
the difference between ‘類固醇’ and ‘激素’ which is blatantly obvious from the Dictionary which he quoted to us. As such the case involves concealment of the
nature of the injections and the failure to inform the patient in the face of
direct inquiry. It is a serious ethical
issue to mislead patients as a high degree of trust is reposed by members of
the public on the profession. The
Council must send a clear message to the profession that the Council will not
tolerate such misleading acts.”
The doctor appealed on several
grounds. His attack on the primary
finding succeeded. The Court of Appeal found
that “the Council had misdirected itself
as to the effect of certain evidence which it understood to support its
conclusion.” A re-trial was ordered.
The findings and sentence were set aside
and the matter remitted to a fresh inquiry before a differently constituted
Inquiry Panel.
What I looked into more was the
part of appeal on sentencing, which I suspected arousing my gut feeling. The Inquiry Panel preferred the evidence of
the patient and believed it was the fact that the doctor had never explained
anything to the patient. Thus, It was
unfair and wrong to turn around and say that the doctor try to use other terms
to mislead the patient, as there was actually no explanation at all. (Where was the legal advisor?)
Put aside this illogic, it was also premature to make inference just
on the terminology of “類固醇” against “激素”. The Court of Appeal
commented: “Although the appellant had
given evidence to explain why he used the term “Cortisone, 激素 [Kik So]” to the Patient, he was not
responding to an allegation that he deliberately chose an expression which he
knew to be incorrect in order to obfuscate and to mislead the Patient. The additional evidence he sought to adduce on
appeal would be relevant to the appellant’s state of mind and the issue if he
honestly believed the expression he used was justified so there was no
deliberate and dishonest attempt to mislead. The finding of deliberate concealment, an
attempt to obfuscate and to mislead the Patient in paragraphs 17, 31 and 32
cannot stand.”
It
appeared as if it was sinful itself by using steroids. You must use the designated Chinese name (but
when was it formally announced?), or else you were likely to have a wicked
intention of misleading your patient. So
the doctor needed to be punished heavily and an important message had to be
sent to the profession and the public. I
felt the emotion here. Knowing that
steroid injection was one of the recognized and recommended treatments, what
would the doctor be trying to lure the patient into? To me, the term “激素” is in fact a worse
term in meaning than “類固醇”, which
appears more neutral. I have the
impression that “激素” has been
used to referred to substances for stimulation of growth in chickens and pigs.
I think
all these recent steroid cases indicate that the Medical Council is going into
an extreme of making steroid a taboo. Information
which might not be beneficial to the public has been sent out. The above case in particular pictured a doctor
trying to mislead his patient to use this sinful medicine (which actually might
be the preferred treatment with minimal side-effects).
The
appeal was allowed. Let’s wait for the
re-trial.
(Source: HKMA News July 2011)
