I have studied law, but of course I am not a lawyer. I am a family doctor. All my limited experience on legal proceedings comes from voluntary public services. The one most closely related to my profession is the Medical Council. I have been a General Member of the Medical Council for 9 years. I even obtained a Master degree in Medical Laws to better equip myself. I am also a member of the Barrister Disciplinary Tribunal and the Licensing Appeals Board of the Food and Health Bureau.
Although it is called an appeal
board, the Licensing Appeals Board does not usually deal with complicated
adjudication problems. Cases go through
the Board to buy time and as a standard procedure before lodging appeals to the
Municipal Services Appeals Board. Hearings
are held in the Conference Room of the Central Government Offices with the
Chairman and 4 Members. Several cases
are heard in a morning session. It is
more like counseling than judging. I usually
encounter restaurant owners who talked angrily, or cried sadly, but with no
legitimate reason for the appeal.
Inquiries of the Barrister
Disciplinary Tribunal are more formal. It
is quite an experience to sit at the judges’ bench of a court room in the High
Court. Obviously both parties are
represented by counsels, who are instructed by representing solicitors. Together with juniors, paralegals, interpreters
and transcript writers, they quite make a scene. Hearings are carried out after court hours,
from 5:30pm till 8:30pm usually. There
are 3 members, 2 barristers and 1 lay member, acting as judges. The Tribunal is very efficient. I remember hearing a case which was quite
complicated, involving ICAC and intermingled commercial issues. It took only 7 hours, in 3 days, to reach a verdict.
In between, 5 witnesses were called and
cross-examined. Time management was
strict. Irrelevant issues were stopped
and delayed tactics were frowned upon.
Inquires of the Medical Council
are most demanding. It needs 5 Members
of the Council, or 3 Members and 2 Assessors, to form a quorum. At least 1 of the 5 Panel Members should be a
lay member. Hearings are held at the
conference room of the Medical Council at the Academy of Medicine Building at
Wong Chuk Hang. Hearings usually take 1
full day, from 9:30am till 6:30pm. It is
more and more common to have hearings which span more than 1 full day. 2 to 3 days seem to be the norm. Recently, there was a case, which involved an obstetrician,
that required nearly 11 full days for the whole process. I did not take part in that inquiry. It was also this case that led the public to criticize
the Medical Council for delay in handling complaints. Because of a strange comment that some Panel Members
needed to leave on time so as “to celebrate Mother’s Day as scheduled”, the
Inquiry Panel Members seemed to take the blame from the public more than the
defendant doctor. This is not fair. In these 9 years, I have sat in around 50
inquires and acted as chairman in 2. I
remember once I was real exhausted after a 3-whole-day hearing. I got a terrible headache. Together with the oily and probably bad food
for lunch from the canteen, I vomited twice and nearly ended up in A&E that
night.
Medical Council hearings are
quite formal. Strict procedures are set
out in Part IV of the Medical Practitioner (Registration and Disciplinary
Procedure) Regulation. In short, the Secretary
of the Medical Council, usually represented by the Legal Officer from the
Department of Justice, reads out the notice of inquiry and the charges against
the defendant doctor. The Legal Officer
then presents the case against the defendant, adducing evidence in support of
it. He may call expert witnesses and
witnesses to testify. Witnesses will
testify under oath and are examined and cross-examined. At the close of the case, the defendant,
usually legally represented, can make a no case submission in the point of law.
The Inquiry Panel Members have to make a
decision on it. If it is rejected, the
defendant is required to state his case. At the conclusion of the case for the
defendant, both parties may make closing submissions. The Legal Advisor will then tender legal
advices on the case. The Inquiry Panel
will then deliberate and make a decision on whether the defendant is guilty of
the offence charged. If the defendant
doctor is found guilty, he will be invited to address the Panel by way of
mitigation. He may adduce evidence as to
the charge or personal background of the defendant. The Panel then decides on sentencing.
The procedures are quit complicated.
I have heard repeatedly from Members
that justice takes time. I do not fully
agree on that. Lengthy procedures are
unfair to both parties, the complainant and the defendant doctor alike. Lengthy inquires will also slow down the
complaint handling procedure as a whole and is thus unjust to the long waiting
queue of complainants. This is one of
the focuses of criticism of the obstetrician case. There are some areas for improvement.
Written submissions should be
encouraged and better prepared. I seldom
receive agreed facts or even the defense’s bundle well before an inquiry. Lengthy reading out words by words from such
documents can be dispended of.
“He who decides must hear.” is the principle for nature justice. However, it does not mean that the defense can
drag on irrelevant issues or elaborate indefinitely on well taken points. Case management is deemed the norm rather than
jeopardizing the rights of the defendant.
Deliberation and decision on
whether the defendant doctor is guilty of the charges take time. And I agree that it should take as much time
as it is feasible. However, experience
tells us that it seldom takes hours for decision making. There is also a mechanism of majority votes
for reaching a decision when there is no chance of reaching a consensus. It is the writing of the judgment by the Legal
Advisor that takes time. The previous
Legal Advisor usually took several hours to write several pages of judgment. I am not going to comment on the practice of
another professional. But the Inquiry Panel
can always announce the decision of guilty or not while the full judgment be
handed down later. Mitigation factors
can then be heard from the defendant. The
Panel can deliberate and decide on sentencing, which is again to be announced
later.
The above are some of my
experience and thoughts on disciplinary procedures. In response to the call for reform of the
Medical Council, I would then present some other thoughts on this topic in the
following issues of the News.
(Source: HKMA News June 2014)
