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)
