Before you misunderstand me, I
would like to point out that I referred to a Medical Council decision in 2009,
which deprived the Council itself of the power to review a decision or an order
made in an inquiry.
All these thoughts came from
reading the breaking news of the Medical Council inquiries in July this year. On July 13, the former Dean of the Faculty of
Medicine of the University of Hong Kong was found guilty of the charge as being
convicted of an offence punishable with imprisonment, namely, Misconduct in
Public Office. His named was ordered to
be removed from the General Register for a period of 9 months. What I am going to discuss is totally irrelevant
to the substance of the case. What
follows is an analysis of the appeal mechanism and mechanism to review an apparently
wrong decision in a Medical Council disciplinary inquiry.
Comments and public opinions on
the sentencing of the above case varied. Some thought that it was overtly lenient; some
said that it was exceptionally harsh. It
all depended. Although Buddhist
teachings favour not to go into extremes, legal teachings do like to stretch
into extremes. It is believed that the
facts would normally lie somewhere between the two extremes. So let us take a look into the two extremes in
the sentencing of this case, or in fact any case.
In an inquiry, decision can be
made by the votes of as few as three not-legally-trained panel members,
including doctors and lay members. As
with any other procedures, errors can occur. The defendant doctor can be found guilty and
then sentenced unduly harsh, such as being removed from the General Register
for good. On the other extreme, the
defendant doctor can be found not guilty, or if found guilty, be sentenced
exceedingly lenient, such as being issued a warning letter.
A good system should have
mechanisms to take care of errors. These
can be found in the Medical Registration Ordinance (MRO). By Section 21 (5) and Section 26, if a
defendant doctor is aggrieved by the decision, he can make an appeal to the
Court of Appeal within one month. A
similar provision for the prosecution counterpart is found in Section 21 (4B),
which reads:
“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.”
Everything seemed neat and
logical, not until 2009. For a case
concerning laboratory tests and “rebate in disguise” (a misnomer), a
significant number of Medical Council Members wrote to the Chairman to ask for
a review of the decision because of the concern from many doctors. What happened dramatically was that from legal
advice, the word “Council” in Section 21 (4B) was interpreted to mean the
disciplinary inquiry panel. So there was
no place for the Medical Council in reviewing that case, or any other case in
the future. Sorry, case closed. No review. And no more discussion. (Details of this case can be found in my blog
at http://cm-mc-articles.blogspot.hk/
where my previous articles related to the Medical Council are collected.)
There could not be more absurd
interpretation of the said provision and the meaning of the word “Council”. I found it difficult to argue because the
meaning was so clearly and plainly spelt out in Section 21 (4B). What else could be said? Maybe just for the sake of argument, I should
try to point out the obvious. The word “Council”
starts with a capital letter and is clearly defined in Section 2 of the MRO. If you go to the on-line version, a click at
the word “Council” of Section 21 (4B) will automatically divert you to the
definition in Section 2, giving the meaning of the full Council of 28 members. How come the Council would vanish and be
replaced by a particular inquiry panel whenever a review was in concern? How come an inquiry panel would out of nothing
and suddenly come to an idea of reviewing its own decision just in a short
period of 14 days? One should also know
that the inquiry panel in effect functionally ceases to exist after the
inquiry. There is no regular meeting for
the members. They may not see each other
anymore for a long period of time. There
is no occasion or mechanism for them to discuss their decision. So, where is the inquiry panel? Who can initiate a review “of its own initiative but
not otherwise”?
Too much for the redundancy. What had happened was that the Medical Council
deprived itself of the important power to review a decision or an order if
there was an error. Take the above case
as an example. For one extreme, the
defendant doctor could be, for some unknown reasons, sentenced a warning
letter. This would be considered far too
lenient by most people. Public opinions
might boil. However, there would be no
remedy. Of course the defendant doctor
would not lodge an appeal. And I doubted
very much the Medical Council could apply for a Judicial Review against its own
decision. Again, “protection of the
public” turns into a mocking slogan.
As doctors, we understand that
sometime mutilating surgeries are needed to save lives. However, we also know that self-mutilation is
usually a sign for an underlying illness.
(Probably too much for the “unbearable
heaviness of Medical Council". For
debriefing, you can turn to read how Eve Lai links Mae West with cinema food. And, by the way, she probably does not realize
that once upon a time, I was called Kenny.)
(Source: HKMA News August 2011)
