December 2013

 

I have a costly cheap watch.  Don’t think that I am contradicting myself.  I divide watches into cheap and costly ones.  Mine belongs to the cheap category.  However, within the cheap category, it is a relatively costly one.  (Well, in the costly category, some do look cheap.)  Because it is a costly cheap watch, it is naturally a mechanical watch.  Cheap cheap watches are usually electronic.  Apart from requiring change of batteries once in a blue moon, electronic watches are quite accurate.  They do not need winding or constant wearing to keep them working.  For mechanical watches, cheap and costly alike, they need to transform movements into stored energy to keep them functioning.  Thus, if you have more than one watch, unless you put all your watches in a fancy winding machine, you need to adjust the time of your watch every occasion you switch to a not-so-often-worn one.  For convenient sake, and for another obvious reason, I only wear one watch.  Although it self-winds and works continuously, I still need to adjust it every week.  This is because it gains just less than a minute a day, and I can only tolerate inaccuracy up to 5 minutes.  Since it is in the cheap watch category, I guess it would not be too helpful to have it repaired or tuned.

Day in, day out, I begin to get lost.  It seems that I have to adjust the watch too frequently.  Another observation comes from my writing for a small column in a newspaper 4 days a week.  I submit 4 articles altogether every Thursday.  How come I have a feeling that I am writing them non-stop?  For clinical work, in the e-Health system, all of a sudden I find the item for Elderly Vaccination Subsidy Scheme again.  Doesn’t the Scheme only begin every November?  Then I notice an alert telling me that I have not changed my log-in password of the Scheme for 654 days.  That is nearly 2 years!  When I fill in the details of a patient, I realize that the pretty lady whom I saw when my clinic started is now eligible for the subsidy.

Is time moving faster?  Well, it is possible.  Time is not something absolute, and some even doubt its existence.  Einstein, the father of relativity, once said that the bad speaker in a lecture he attended had given eternity a new definition.  When I try to retrieve the quote, I realize that I read the book Einstein when Steve Jobs died.  And that was October 2011, more than 2 years ago.   

Then I realize that it is early December 2013.  It is time to write an Editorial for the News.  Why not write a review on the happenings in 2013?  I did that before.  But that were in 2008, 2009 and 2010.  When I try to recall what were the big pieces of news in 2013, I get totally confused.  SARS was 10 years ago in 2003.  H1N1 and hotel quarantine was in 2009.  This year was my turn to re-elect for Council Member of the HKMA.  I was ipso facto re-elected.  When I collected the souvenir for my service from 2010 to 2013 in the AGM, I remembered that I had fractured my left elbow when I was presented a similar souvenir at an earlier time.  And that was 6 years ago!  Has anyone muddled with the time machine and stolen from us, or at least from me?  Then I recall the fact that despite so many events in between, we are still in the second year of our Chief Executive’s term of service.  Our time has not been stolen.  It is only relativity in play.  The followings are my picks for 2013 after confirming that they really happened in this year.

The Nobel Prize and alike

• They are listed in case people think that doctors should know about them.  The Nobel Prize in Physiology or Medicine 2013 was jointly awarded to James E. Rothman, Randy W. Schekman and Thomas C. Südhof for “their discoveries of machinery regulating vesicle traffic, a major transport system in our cells.”
• The Shaw Prize in Life Science and Medicine was jointly awarded to Jeffrey C. Hall, Michael Rosbash and Michael W. Young for “their discoveries of molecular mechanisms underlying circadian rhythms.”
• The Ig Nobel Prize (which is an American parody of the Nobel Prizes) in Medicine was awarded to "Auditory stimulation of opera music induced prolongation of murine cardiac allograft survival and maintained generation of regulatory CD4+CD25+ cells" by Masateru Uchiyama, Xiangyuan Jin, Qi Zhang, Toshihito Hirai, Atsushi Amano, Hisashi Bashuda and Masanori Niimi.  The scientists assessed the effect of listening to opera, on heart transplant mice. 

The infections

• On December 2, the CHP confirmed the first case of H7N9 bird flu in Hong Kong.  17 close contacts of the patient have been quarantined and prescribed with Tamiflu prophylaxis, and over 200 other contacts of the patient had been placed under observation.  On December 6, another case was confirmed.
• Two children died of Streptococcus pneumonia serotype 3 infection within two weeks in November.  Parents became panic when there was an opinion that children who had received the older generation vaccines PCV-7 and PCV-10 would be more susceptible to infection from serotype 3.  After a bit of confusing opinions, the CHP decided to subsidize children under 6 who had not received any PCV-13 to have a booster via the Childhood Vaccination Subsidy Scheme.
• In May, the novel coronavirus (nCoV) was named the Middle East respiratory syndrome coronavirus (MERS-CoV) by the Coronavirus Study Group of the International Committee on Taxonomy of Viruses.  MERS-CoV confirmed cases continued to be reported from different countries in Middle East, Europe and North Africa throughout the year.

The Hospital Authority

• In December, Prof. John LEONG Chi-yan succeeded Mr. Anthony WU Ting-yuk to be the Chairman of Hospital Authority.
• On August 21, the Government announced the setting up of a Steering Committee to carry out an overall review of the Hospital Authority.  There was no representative from the HKMA.

The Universities

• Professor Francis CHAN Ka-leung became the Dean of the Faculty of Medicine at the Chinese University of Hong Kong in January. 
• Professor Gabriel Matthew LEUNG became the Dean of the Li Ka Shing Faculty of Medicine at The University of Hong Kong in August.
• Prof. YU Cheuk-man, Head of Cardiology of the Faculty of Medicine of the Chinese University of Hong Kong, was suspended from performing vascular interventional procedures after there were internal complaints on his performance.  He disputed and investigations are still in progress.

The human rights

• In April, Dr. York CHOW Yat-ngok, former Secretary for Food and Health, became the new chairperson of the Equal Opportunities Commission.  He hoped to make progress on legislation outlawing discrimination on the grounds of sexual orientation, and to protect same sex marriage as it was “a matter of human right”.   
• In September 25, the Action Committee Against Narcotics (ACAN) issued a consultation paper on the RESCUE Drug Testing Scheme.  This was a compulsory drug testing scheme infringing on basic human rights.  In November, the HKMA held a press conference to state our firm stance against this scheme.  It was described as 「藥石亂投」.  The Apple Daily elected this scheme as one of the big 10 news concerning human rights in Hong Kong in the year 2013. 

(Source: HKMA News December 2013)

Akusala?

 

In an environment of collective karma, where a deer is called a horse, and where the pots call the kettles black, I often think of Buddhist teachings.  In Early Buddhism it is much stressed that life is suffering, and there is a way to the cessation of suffering.  The Buddha points out the way.  He calls it the Noble Eightfold Path.  People need to know it, to practice it and to achieve it.  The Noble Eightfold Path is: right view, right intention, right speech, right action, right livelihood, right effort, right mindfulness and right concentration.  But what is right and what is wrong?  Since Buddhism is not governmental decision on free-to-air television permits, there is no need to hide behind the Executive Council’s confidentiality rule and to shy from explaining.  There are discourses discussing and explaining morality.  Pairs of terms are commonly used to describe praiseworthy and apprehensible actions and states of mind.  Kusala and akusala are one of such pairs.

Kusala is a Pali term to describe things in a good sense, while akusala is the opposite term to describe something bad or even evil.  In the Sammaditthi Sutta (the Discourse on Right View), examples for akusala actions include killing living beings, taking what is not given, misconduct in sensual pleasures, false speech and ill-will.  Kusala actions are expressed as the abstention from akusala actions.  The Discourse also identifies the roots for akusala actions.  They are refereed to as akusala states of mind, which include: greed, hatred and delusion.  In the reverse, non-greed, non-hatred and non-delusion are described as kusala.

Kusala is translated in different terms.  The most commonly used are wholesome and skillful.  This is because like translation of other languages, a term usually carries several meanings especially when used in different contexts.  I tend to understand kusala as wholesome when referring to the mind, and as skillful when referring to an action.  Of course doing so might deviate form the original teaching a bit.  But many a time, how something is done is as important as, if not more important than, whether the action is wholesome from an absolute objective point of view.  Moreover, as early as in 1766, Adam Smith had postulated in his classic work The Worth of Nations that an individual’s for-his-own-interest action might bear no relation to the end result to the society: “… he intends only his own gain, and he is in this, as in many other eases, led by an invisible hand to promote an end which was no part of his intention.  Nor is it always the worse for the society that it was no part of it.  By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it.  I have never known much good done by those who affected to trade for the public good.”  It was his dictum that: “It is not from the benevolence of the butcher, the brewer, or the baker, that we expect our dinner, but from their regard to their own interest.  We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages.”

Judging an individual’s state of mind is not easy.  How about an organization?  It is even more difficult to assess the state of mind of the government, if such thing does exist.  Seemingly Hong Kong is now having a very strong government in the eyes of Adam Smith, as many officials are taking care of their own interests rather than doing good to the society.  Apparently, and sadly, the “invisible hand theory” seems not applicable to a government.

However, whether the actions of a government are skillful or not are not that difficult to judge.  In the recent incident of issuing free-to-air television permits, akusala or unskillful is the verdict.  I am not as naïve as to believe that all governmental decisions are fair and transparent.  It is for the officials to act in a skillful manner so as to allow implementation of decisions.  It is not up to me as a knowing-nothing-citizen to comment on strategies and planning.  But I always fantasize the advisors and spin-doctors in TV series like The House of Cards, The West Wings, or even The Good Wife.  What strikes me is that this television permit issue is but one of a series of akusala acts.  Discontent seems to be stirred up from all walks of life: the right of abode in Hong Kong, maternity beds, milk powder, kindergarten admission, moral and national education in high schools, illegal structures, housing, and even the use of language, and even cemetery niches. 

Interestingly, if we take another point of view, it would be near mission-impossible to mobilize so many Hong Kong people to voice out their concerns.  Hong Kong citizens have been well known for their political indifference, short attention span and indulgence in self-interest.  So, do all these arise from an akusala intention with kusala acts?  Or from an akusala intention with akusala acts?  Or from a whatever mind with kusala acts?  Or from a whatever mind with akusala acts?

(Source: HKMA News November 2013)

No matter what the RESCUE Drug Testing Scheme is named, it is a proposal for compulsory drug testing. No matter how the compulsory drug testing scheme is presented, it is a breach to fundamental human rights.

The Action Committee Against Narcotics (ACAN) has recently issued a consultation paper on a scheme called RESCUE Drug Testing Scheme (RDT).  It is a proposal to change the present law, so as to empower the police and other law enforcement officers to require a person to undergo a drug test (mainly urine test) when there is so called “reasonable suspicion” that he has taken dangerous drugs.  This is not to clarify any ambiguity in the present law.  Instead, it involves a major change to it.  Currently, in the Dangerous Drugs Ordinance there is a specific section (section 54AA) that prohibits the test of urine from a suspected person except when the person appropriately consents to the test.  This urine-testing-matter is taken so seriously that there is another section (section 54AB) in the Ordinance detailing the use of information gathered from the urine test (done under consent of the person), and the use and disposal of the urine sample collected.

These sections are in place to protect basic human rights.  Article 6 of the European Convention on Human Rights is the provision to protect the right to a fair trial.  Article 6(2) states that: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”  The burden of proof rests totally on the prosecution to prove beyond reasonable doubt that the defendant is guilty.  The defendant needs to do nothing to prove his innocence.  Even in a charge of murder, the defendant can remain silent.  If the prosecution cannot prove his case, the defendant is innocent, as he always is.  To guard against torture and coercion, the English common law and the Fifth Amendment to the United States Constitution spell out the right against self-incrimination.  The prosecution is required to prove his case without the cooperation or provision of any evidence from the defendant.

It is against human rights to require a person to provide a urine sample for drug testing so as to prove that he is guilty or innocent.  It reverses the burden of proof from the prosecution to the defendant.  When the police makes a so-called “reasonable suspicion”, the person suspected cannot do nothing.  He is statutorily required to provide a urine sample to prove his innocence.  Refusal to do so is guilty per se.

However, there are existing provisions with reversed onus of proof.  Although Article 6(2) is in absolute terms, it is not regarded as imposing an absolute prohibition on reverse onus clauses.  To cut all legal jargons, such provisions need to be justified.  They are the exceptions.  It has to be proved that such provision is necessary, useful and proportionate to combat the threat faced by society.  Does the new proposal by ACAN meet these tests for justification?

Dangerous drugs abuse has been a long standing problem in Hong Kong.  There was a rise in the number of abusers especially young people abusing psychotropic substances in 2008.  Various measures were introduced to combat such rising trend.  The consultation document tells us that there is “remarkable improvement” in the drug situation.  Comparing 2012 and 2008, the total number of abusers has fallen 23%.  For abusers under 21 years old, the number has actually decreased by 54%.  Thus, there is no imminent need here.

Dangerous drugs are mentally and physically harmful to the abusers.  Abusers affect their family members and friends.  They are a burden to the society.  However, the question we need to consider is whether drug abuse stands out uniquely to other threats to the society to the extent that a provision infringing human rights has to be passed.  Compare to drug trafficking and drink driving, the harms of drug abuse mainly affect the abusers than the others.  The threat to society is minimal.  Compare to other addiction problems such as alcoholism and pathological gambling, drug abuse is not uniquely and excessively harmful.

Actually discussion should stop here as there is no imminent need to violate human rights.  For the sake of analysis, let us continue to look at the usefulness of compulsory drug testing.  Reading through the consultation paper, there is no mention of why and how compulsory drug testing is helpful in early identification of drug abusers.  There is no study or statistical evidence to support compulsory drug testing.  There is even no estimation of how effective compulsory drug testing will be.  With such reckless assumption, it is amazing to read in the consultation paper a fact that 80% of the drug abusers are “hidden” in the sense that they take drugs in their own homes or in friends’ homes.  Obviously these 80% of the abusers will not be silly enough to revert their hidden nature when there is compulsory drug testing.  It is also reasonable to predict that many of the remaining 20% will turn hidden.  So, will compulsory drug testing in public areas be useful?

To fulfill the requirement of “being proportionate”, the consultation paper proposes several measures to limit the power of law enforcement officers under the Scheme.  Among the measures, the most concern is on the trigger to the new power of forcing a citizen to prove himself innocent.  It is suggested that two conditions need to be satisfied: 1) there are substances suspected of being dangerous drugs present in the near vicinity of the person concerned; AND 2) the person’s physical state, behavior and/or belongings show that he may have just taken drugs.  The consultation document describes this trigger as “a high threshold” and even poses a question to ask whether people would agree to scarify catching some obvious cases for adopting such a high threshold.

This is the most wrongful description of the trigger threshold.  Consider that there is no imminent threat to society and the ineffectiveness of compulsory drug testing, this trigger is disproportionately low for an infringement on basic human rights.  Both limbs of the trigger test rest on subjective opinions from law enforcement officials.  The first requirement is only a suspicion on the finding of dangerous drugs.  Whether the substance turns out to be dangerous drug or not doesn’t matter.  For the second requirement, it is fictitious to believe that a police officer can distinguish drug abuse from other conditions such as alcohol consumption, side-effects of medications or mental illnesses.  Think about inside a crowded bar, the police can invoke the new power and force all the customers to the police station when one of the policemen has a pack of any powder in hand.

In conclusion, the RESCUE Drug Testing Scheme is a compulsory drug testing scheme that infringe basic human rights.  It seeks to revert the prohibition of testing of urine without consent as spelled out clearly in current law.  To create such a provision requires strict criteria for justification.  As a matter of fact, the proposal fails in all aspects.  There is no imminent threat to the society.  The test itself is not useful.  The new power suggested is disproportionate to the threat perceived. 

(Source: HKMA News October 2013)

We are so vulnerable

We are so vulnerable when there is inequality of power.  Sadly, inequality of power is everywhere.

I saw a patient last week.  He was at a loss with his blood pressure condition.  He was diagnosed with “hypertension” and was given anti-hypertensive by an A&E doctor when he recorded elevated blood pressure after a heated quarrel with his wife.  He took the medicine and felt dizzy, with self-checked blood pressure of 90/60mmHg.  He did a follow-up appointment to GOPC and told the doctor about his hypotensive symptoms and his blood pressure readings.  Despite the confirmation of the reading of 90/60mmHg at GOPC, the attending doctor ignored him, told him nothing, and prescribed the same medication for him for another 6 months.

Inequality in power is the classical description of the doctor patient relation.  The doctor is equipped with the medical knowledge to diagnose and to treat, the skill to operate, and the license to prescribe controlled drugs.  If he so wishes, he is in the position to fully manipulate the patient, who becomes even more vulnerable when stroked with pain, and preoccupied by prognosis of his illness.

Unfortunately, inequality in power is not unique to doctors and patients.  Every time my clinic needs renovation, or when the air-conditioner fails, or when I hire a plumber, or whenever any service with special knowledge or skills is needed, I will have a taste of such inequality in power.

Regulation has been one of the solutions to partially address the problem of inequality in power.  The Medical Council is the regulatory body of doctors.  It fulfills its function by setting standards, maintaining registry, handling complaints and having the power to order disciplinary actions.  On the other hand, the Hospital Authority, as the largest employer of doctors in Hong Kong, regulates its employees mainly through administrative actions.  However, with the creation of such regulatory bodies, there comes a new set of inequality of power between the regulatory bodies and doctors.  

Inequality of power is everywhere.  What is important is to have checks and balances on the power, and proper routes of appeal and redress.  A specialist who is removed from the Specialist Register permanently because of a prescription error can lodge an appeal to the Court of Appeal.  A doctor who is prevented from doing operation by his seniors can write to every possible source and he can talk to the media every day.  We ask ourselves how useful such remedies are.  And we are so vulnerable.

As citizens, the most common inequality in power we face every day is the police.  To enforce law and order, the police is equipped with lethal weapons, and the power to arrest a citizen and to detain him.  The eternal debate, which is still going on, is how to strike a balance between effective law enforcement and abuse of power by police.  Of course, one of the factors for consideration is how much power the police is given by statute.  In September this year, the Government, through the Action Committee Against Narcotics, will launch a consultation exercise for a compulsory drug testing scheme.  Be it Compulsory Drug Testing Scheme, or Community Drug Testing Scheme, or by whatever fancy name the scheme is called, a major and controversial component of the scheme is to greatly increase the power of the police.  It is proposed that a police officer can, upon reasonable suspicion, require a citizen to go to the police station to carry out further testing, which includes a urine test for controlled drugs.  The targeted citizen can have no choice.  His consent is not needed.

The statutory position now is that the police have no power to force anyone for any reason to submit his urine sample for drug testing.  The reasons behind such “lack of power” or more appropriately “prohibition of such power” are manifold.  It protects the citizen against invasive search of his body.  More importantly, forcing (Yes, it is forcing.  The citizen cannot refuse, as he will be charged for failing to submit a urine sample, the punishment of which is the same as positive urine results.) the citizen to provide a urine sample which can incriminate him is against human rights.  

I wonder, what will be the use of compulsory drug testing when we all realize that drug abusers are turning more and more “hidden”?  They take drugs at home or at friends’ homes.  What is the chance of a police officer catching an abuser on the street?

I wonder, when the School-based Drug Testing Scheme is boosted as very successful and millions of dollars are pumped to launch more similar schemes at different schools, why is it necessary to introduce another totally different scheme?

I wonder, how easy it would be to trigger the subjective “reasonable suspicion”?  And, don’t be as naïve as to think that you can challenge the police officer’s findings on you.

I wonder, how can a police officer distinguish between drug abuse and alcohol consumption?  How can a police officer distinguish between drug abuse and psychiatric illnesses?  How can a police officer distinguish between drug abuse and the side effects of common medications?

I wonder, when I am at home, I open the door to answer a police office claiming to look into a complaint about noise, can he exercise his reasonable suspicion on me?

I wonder, how much should I wonder?

Paulo Freire, the Brazilian philosopher, claimed that: "Washing one's hands of the conflict between the powerful and the powerless means to side with the powerful, not to be neutral."  This new drug testing scheme will have drastic consequences on all of us.  We are facing enough inequality in power.  I decide to spend some time to go through the consultation document in detail and to give my comments.  Do you still choose to remain neutral?

(Source: HKMA News September 2013)

System Failure, Below Standard, and Misconduct

I felt obliged to share with readers my thoughts after I read the judgment of an inquiry of the Medical Council of Hong Kong held in June 2013.  A gynaecologist was found guilty of misconduct in a professional respect for prescribing Amoxil to a patient who was known to be sensitive to Penicillin.

The judgment stated that: “Wrongful prescription of drugs which a patient is known to be allergic to can easily be prevented (my emphasis) by checking the medical record and checking with the patient.”  And then: “in view of the fact that there are cases in which the responsibility is plainly overlooked, we must send a message to the medical profession that the matter will be dealt with seriously in sentencing in future cases if patient’s known allergy is blatantly overlooked.”

It also commented unfavorably on whether further action needed to be taken by the Education and Accreditation Committee (EAC) in respect of her specialist registration: “We are of the view that to exercise proper care in prescribing medicine is a fundamental responsibility of all doctors.”  Although the doctor was ordered to be removed from the General Register for 1 month with the order suspended for 12 months, the EAC later removed her name from the Specialist Register permanently.  Of course she can appeal and/or apply to be included in the Specialist Register again.  Practically this meant that even though she got a suspended sentence in the inquiry, she was still unable to practice as a gynaecologist for a considerable period of time.

I fully agreed that the doctor had done something wrong.  In this case, the patient did suffer allergic reactions and was admitted to a private hospital for a few days.  The doctor actually owed the patient an apology.  The guilty verdict was a redress to the patient.  The sentencing also served to alert doctors to be more careful with medical prescriptions.  However, a few questions arose in my mind.

1. Are prescription errors really easily preventable?
2. Do doctors really expect zero error in prescribing?
3. Falling short of expected standard is professional misconduct?
4. Can imposing harsher (and harsher) punishment help preventing prescription errors?

Are prescription errors easily preventable?

Prescription errors remain one of the leading causes of medical errors worldwide.  Various measures have been implemented at different levels in order to try tackling prescription errors.  Yet no one nation or any medical organization can claim that they can prevent all prescription errors.  It might not be difficult to achieve zero error on an individual basis for a certain period of time.  However, like other human errors, prescription errors are hard to eliminate in a system.  I don’t mean that we should do nothing on this important issue, nor that doctors are not to be blamed.  It is only through recognizing the difficulties in preventing prescription errors that we can elucidate the root causes of them.  Telling mothers to feed their children with nutritious food spoon by spoon is unlikely to solve the worldwide problem of malnutrition.  Similarly, educating industrial workers about the importance of fingers will not prevent them from chopping their fingers accidentally.  Sending victims of industrial accidents to jail will certainly not be useful in cutting accident rates.

Do doctors really expect zero error in prescribing?

Honestly, do you expect to encounter zero prescription error in the coming year in Hong Kong?  Of course the answer is “no”.  Do not fall into the pitfall of pinpointing an individual doctor facing a particular patient.  With hindsight, it is negligence to give penicillin-sensitive patient penicillin.  However, this does happen repeatedly in everyday lives when there is system failure.  Human errors are bound to happen when there are routine and repetitive actions.  A good system has built-in checkpoints to pick up such errors and to rectify them.  In the aforementioned case, in fact the doctor had implemented measures to check for errors.  There were cautionary note on the paper record and an allergy alert function in the computer system.  Sadly, both mechanisms failed in this case.  Ironically, the panel regarded the doctor even more blame-worthy with such safety mechanism in place, and implied that she had blatantly overlooked the known allergy.

How about a surgical procedure, such as colonoscopy?  We tend to be comfortable with the intrinsic risk of perforation of the colon.  When such risk materializes, the doctor seldom takes the blame.  If he has implemented mechanisms which can reduce the intrinsic risks, he is highly likely to receive credits for such actions.

Falling short of expected standard is professional misconduct?

The term “professional misconduct” carries quite a negative sense.  It is quite a serious matter when a doctor is labeled with misconduct.  However, from the decisions in the cases Koo Kwok Ho (1988) and To Chun Fung (2000), the Court of Appeal somehow equated misconduct as “conduct fallen short of the standard expected amongst doctors”.  Taking that to the strictest sense, misspelling a patient’s name can be professional misconduct.  It all depends on what is expected amongst doctors.  If the inquiry panel thought that prescription errors were easy to prevent, they would easily find the defendant doctor fallen below expected standard.  But, again, do doctors really expect zero error in prescribing?

“Professional misconduct” is now the only verdict from the disciplinary procedures.  The defendant doctor is either guilty or not guilty.  Apart from the differences in sentencing, there is no way to distinguish a doctor who maliciously harms his patient for his personal gain from a doctor who is herself a victim of system failure.  A review of the disciplinary procedures is seriously in need.

Can imposing harsher (and harsher) punishment help preventing prescription errors?

While removal from the General Register with suspended sentence was by no means lenient, it was difficult to think of harsher punishment than removal from the Specialist Register permanently.  With the deluded view that prescription errors were easily preventable, the doctor was regarded having done a grossly irresponsible act.  I totally agreed that in private practice, the doctor had to take sole responsibility in mishaps in the clinic.  However, she was a specialist in O&G, but not a specialist in system errors and risk management.  The inquiry panel had already agreed that the risk of committing the same mistake was low.  I wondered how she could further prove to EAC that she would be fit to be a specialist.

While all doctors should be alerted to the prevention of prescription errors, authorities should also understand the root causes of such errors.  Just as putting victims of industrial accidents to jail would not cut accident rates; imposing harsher punishment to doctors is unlikely to help decreasing prescription errors.  A realistic assessment of resources in private practices and facilitation of effective system management would be more promising solutions.

 

(Source: HKMA News August 2013)

Will a doctor be removed from the General Register if he takes part in Occupy Central?

This is an academic analysis from my personal opinions.  I have no intention to solicit doctors to take part, nor to deter doctors from taking part, in the Occupy Central movement.  Afterall, I do not believe that any doctor will decide to join, or refrain from joining, the movement just from the clarification on a remote chance of being removed from the General Register by the Medical Council of Hong Kong.  However, I decide to write this analysis because I hate official answers.  I sense that Occupy Central has become a taboo.  While various organizations are giving out opinions on matters such as biohazard and E. coli levels on sewage spillage, they divert members to the Medical Registration Ordinance (MRO) and the Medical Council for official answers to this important, but relatively simple question.  This is just like referring a patient with anaemic symptoms to the Harrison’s Principle of Internal Medicine and the British National Formulary.  I have served as Council Members in the Medical Council for several years and I have done a bit legal studies.  It will be helpful to consider my viewpoints on this matter.  Of course, you have to be aware that my personal opinions might be wrong, and that they are by no means complete.  At least, they are human, but not mechanical, nor official.

First, the disciplinary procedures of the Medical Council are event-triggered.  For example, they are triggered by a complaint received, or the fact that a doctor has been convicted of an offence punishable with imprisonment.  It is unlikely that the action of a doctor taking part in the movement per se will trigger the disciplinary procedures.  There has to be a complaint, or he has to be arrested, prosecuted, and then found guilty of an offence punishable with imprisonment.

Second, many people get s21A(1)(a) and s21A(1)(b) of the MRO mixed up.  Or most of them do not even know that there is such a sub-section (a).  S21A(1)(b) is about misconduct in any professional respect.  It is decided by the falling short of the standard expected amongst doctors.  S21A(1)(a) is not directly related to standard or misconduct.  It is about a doctor who has been convicted in Hong Kong or elsewhere of any offence punishable with imprisonment.  In the event of consequences from a doctor taking part in Occupy Central, we are more concerned about sub-section (a).

The rationale for a doctor who has been convicted with an offence punishable with imprisonment to go through the disciplinary procedures is for protection of the public.  When an offence is punishable with imprisonment, it means that it is of considerable gravity.  Although it does not automatically imply on the doctor’s fitness to practice, it serves as a signal to the disciplinary body to look into each individual case so as not to miss anything important.  The offence may reflect the character and conduct of the doctor.  For example, a doctor convicted of sexual offences with suspended sentence to imprisonment by the court can still practice.  S21A(1)(a) gives the disciplinary body power to look into whether this doctor will endanger his patients if he continues to practice.  We are expecting higher standard for a doctor than any lay person.

Third, it all depends on what the doctor who takes part in Occupy Central has done.  Or to be more precise, what he has actually been convicted of.  The Medical Council has dealt with different cases in very different manners.  For some “trivial” cases such as traffic offences (Yes, careless driving is punishable with imprisonment!), they are usually dismissed at the Preliminary Investigation Committee (PIC) level.  The doctor can stay at ease on the General Register.  However, for more serious offences, such as sexual offences, offences involving dangerous drugs, and offences concerning dishonesty, the Medical Council takes them much more seriously.  In the past, the Medical Council has removed doctors with the afore-mentioned offences from the General Register, ranging from a month to indefinitely.

If the doctor who takes part in the movement is convicted of offences without components of violence and endangering others, the disciplinary body might take the case more lenient.  However, there is no guarantee that the case would be dismissed at the PIC level.  The doctor might still need to go through inquiry and end up with consequences ranging from “not-guilty”, to a warning letter, to removal from the General Register.  On the other hand, if the doctor does something more drastic and ends up convicted of offences such as arson, or wounding and inflicting grievous bodily harm, an inquiry and removal from the General Register will be likely.  This is because adverse inference might be drawn on the doctor’s character with such convictions.

Fourth, life is full of uncertainties.  This point is very important.  Law suits have notoriously been unpredictable.  This is particularly true for jury trials.  In a Medical Council inquiry, it takes as few as 3 not-legally-trained panel members (out of the 5 members to form a quorum) to give a verdict.  There is no precedent case for offence related to civil disobedience.  Although I expect lenient verdicts, out-of-tune results will not be too unexpected.  More important, what is going to happen during the movement will also be unpredictable.  The doctor needs to make sure he is not involved in anything drastic.  Even so, while he is looking at charges like “unlawful assembly”, the prosecution might charge him with more serious charges like “riot”.

Last, but not the least: consequences.  As explained, if the participant is not convicted of any offence punishable with imprisonment, disciplinary procedures will unlikely be triggered.  If he is convicted with offences not regarded as endangering the public for him to continue to practice, I do not expect harsh verdicts.  Even in the rare case that he is removed from the General Register, he can usually be reinstated after he has spent his sentence.  However, his specialist registration (if any) might be affected.  And, important to some, but not so to most, doctors, maybe he will not be able to serve as a member in the Medical Council or the Hong Kong Medical Association.

However, there are other considerations.  The doctor needs to be emotionally stable and strong.  Even if everything goes in the expected direction, law suits and disciplinary procedures are stressful and disruptive to daily living.  He is likely to pay for his own legal costs as his medical insurance plan is unlikely to cover his actions unrelated to his medical practice.  If things go wrong, there will be more legal procedures, more financial burden and more stress.  If there is an out-of-tune judgment from an inquiry, the only thing the doctor can do is to lodge an appeal to the Court of Appeal (apart from taking the verdict as it is, of course).  He might, for the first time in life, realize the inequality in power in court when he faces a Queen’s Counsel instructed by the Medical Council, risking shouldered the costs if the appeal fails.  

(Source: HKMA News July 2013)