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)