On November 4, 2012, a young
doctor was found guilty of misconduct in a profession respect after a
disciplinary inquiry held by the Medical Council. The Inquiry Panel ordered that his name be
removed from the General Register indefinitely. The Inquiry Panel further ordered that the
removal should take effect immediately upon its publication in the Gazette. The Inquiry Panel also stated that the young
doctor could not be a fit and proper person to practice as a doctor and that he
could not be restored to the General Register at all. The media referred the sentencing as the
heaviest penalty ever imposed by the Medical Council. Comparisons were also made to previous cases
in which the defendant doctors were found guilty in criminal courts. In contrast, this young doctor was found not
guilty for the criminal charge of indecent assault, which aroused from a
similar set of events leading to his removal from the General Register. I shall analyze all these from a legal
perspective.
In April 2010, the young doctor
faced a criminal charge of indecent assault after he allegedly performed per
vaginal examination on and took photographs from a female patient who consulted
him for herpes zoster involving the lower body. There were two major factors for his acquittal.
First, for the charge of indecent
assault, there needed to be two components: actus reus (the act) and mens rea
(the intention). The act of touching the
patient’s private part could constitute the act of indecent assault. However, the prosecution also needed to prove
that the defendant did it with an intention. For example, if you waved at a taxi but
accidental touched the breast of a lady walking from behind, it would unlikely
be indecent assault. In a medical
setting, consent from the patient would be a legitimate reason for the act. So the judge had to decide on whether there
was consent, or implied consent, and the scope of the consent.
Second, for a criminal charge,
the standard of proof was that the charge should be proved beyond reasonable
doubt. The jury or the judge had to be
one hundred percent sure that the defendant had the intention to act
indecently. In this case, the judge,
after taking all material facts and statements from witnesses into
consideration, satisfied himself that there was a chance, maybe a very slim
one, that the defendant doctor lacked the intent to act in a criminal way. His acts, though stupid or inappropriate,
might be accounted for by his relative lack of clinical experience.
For disciplinary inquiries by the
Medical Council, things were different. One
should note that if this young doctor had been found guilty of his criminal charge,
he would have been charged under section 21 (1)(a) of the Medical Registration
Ordinance (MRO): that he had been convicted in Hong Kong or elsewhere of any
offence punishable with imprisonment. For
this charge, he would have been judged by the inquiry panel mainly on the
gravity of his offence. And it would not
have been a decision on professional misconduct.
In this actual case, an acquittal
would not in itself lead to a disciplinary inquiry. The inquiry was held because the case was
referred by the Preliminary Investigation Committee (PIC) after investigating
into a complaint or complaints received. Section 21 (1)(b) of the MRO was invoked. Basically, the young doctor was charged for
conducting improper and unnecessary physical examinations; and improperly
taking photographs and videos of several patients during consultations without
consent. The decision was whether he was
guilty of misconduct in a professional respect. The test for professional misconduct was set
by the judge in the case of Koo Kwok Ho v
the Medical Council of Hong Kong to be "whether the doctor's conduct has fallen short of
the standard expected amongst doctors". Note
that there was no involvement of intention in the test. Even when there was good intention, not to say
malice ones, the doctor could be found guilty if his acts or behavior fell
short of peer standards.
The standard of proof in disciplinary proceedings had been a focus
of controversy. Recently, it seemed to
have been settled by a Court of Final Appeal case [Solicitor (24/07) and the Law Society of Hong Kong (2008) 11HKCFAR
117]. In para 116, it was stated that “the standard of proof for disciplinary
proceedings in Hong Kong is a preponderance of probability under the Re H
approach. The more serious the act or
omission alleged, the more inherently improbable must it be regarded. And the more inherently improbable it is
regarded, the more compelling will be the evidence needed to prove it on a
preponderance of probability. If that is
properly appreciated and applied in a fair-minded manner, it will provide an
appropriate approach to proof in disciplinary proceedings. Such an approach will be duly conducive to
serving the public interest by maintaining standards within the professions and
the services while, at the same time, protecting their members from unjust
condemnation.” So, the standard of proof was not
the criminal standard of beyond reasonable doubt, but the civil standard of a
balance of probability with a somewhat circular logic built in.
After deciding that the defendant
doctor had more probable than not fallen short of expected standards, the
defendant doctor was found guilty of professional misconduct. The Inquiry Panel ordered the removal of the
name of the defendant doctor from the General Register in accordance with
section 21 (1)(i) of the MRO. This was
in contrast to section 21 (1)(ii) where a time period was fixed for the
removal. Seemingly, removal without a
fixed period was a heavier punishment as it appeared in the sequence in the Ordinance.
However, technically, the defendant
doctor could apply for inclusion of his name in the General Register again as
soon as the removal of his name was published in the Gazette. So for a clearer message, both to the
defendant doctor and to the general public, the Inquiry Panel also opined that
there was practically no chance for his re-registration.
Another point to note was that
the Inquiry Panel also ordered the removal to take effect immediately upon its
publication in the Gazette in accordance with section 21 (1)(iva). This meant that the Inquiry Panel satisfied
that it was necessary to do so for the protection of the public. This also added to the gravity of the
sentencing as in normal circumstance, the removal order would not take effect
if there was an appeal lodged.
(Source: HKMA News November 2012)
