Self castration

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)