The disciplinary power of the
Medical Council of Hong Kong rests solely on its disciplinary procedures. After due inquiry by an inquiry panel, a
registered medical practitioner can be sanctioned ranging from being issued a
warning letter, to the removal from the General Register. Removal from the General Register is
considered a very heavy penalty as the candidate ceases to have the right to
practice medicine until and unless he is included in the General Register
again.
How did members of the inquiry
panel make such an important decision on whether a doctor is guilty of
profession misconduct? Members need to
apply a “test”. A test is a legal term. We can see a test as a question resulting in
either a “Yes” or a “No” answer. If the
answer to the question is “Yes”, the doctor concerned is guilty of professional
misconduct. In 1988, in a case heard in
the Court of Appeal, the judge decided that the test to be: “whether the doctor's conduct has fallen short of the
standard expected amongst doctors?” Unfortunately, and with due respect, this decision was wrong and it
paved the way to the dysfunction of the disciplinary procedures of the Medical
Council.
In 1988, Dr. Koo Kwok Ho was
found profession misconduct because his nurse was caught selling a dangerous
drug to a patient. He claimed that it
was a single incident and the nurse had done it without his knowledge. He lodged an appeal. In the Court of Appeal, the judge referred to
a case heard in the Privy Council in 1987: Doughty
v General Dental Council. In Doughty, the dentist was found guilty of
“serious professional misconduct”. Such
term was introduced a few years back to replace the old charge of “infamous or
disgraceful conduct”. In his ruling, the
Lord interpreted the statue and decided that the conduct did not need to be
infamous or disgraceful to constitute professional misconduct. He further explained that "what is now required
is that the General Dental Council should establish conduct connected with his
profession in which the dentist concerned has fallen short, by omission or
commission, of the standards of conduct expected among dentists and that such
falling short as is established should be serious."
It was perfectly appropriate for
the judge in Koo Kwok Ho to rely on Doughty, particularly to follow that a
single incident could constitute misconduct; omission could be misconduct; and
that the conduct needed not be proved to be infamous or disgraceful to the
profession. However, the judge further
distinguished from Doughty that in
Hong Kong the charge was a bit different. Thus, the judgment stated: “Save to observe that the Hong Kong ordinance does not
require the element of seriousness, the relevant words being ‘misconduct in any professional respect’, we would respectfully adopt their Lordships'
comments with respect to inquiries under Section 21 of Cap. 161. It is unnecessary then to consider the
application of emotive adjectives. The
test is simply whether the doctor's conduct has fallen short of the standard
expected amongst doctors.” This
ratio decidendi was problematic. It was understood that the disciplinary
procedures of the General Dental Council in UK was similar to that of the
Medical Council of Hong Kong. The purpose
was also similar in protecting the public by sanctioning undesirable behavior
of doctors. It was irrational to
conclude that in Hong Kong the scope of the charge was totally different from
that in UK and the fallen short of standard needed not be serious.
Concerning statute
interpretation, a recent decision from the High Court (Hong Kong Medical Association v Medical Council of Hong Kong HCAL
70/2012) gave a good summary on it: “It
is a fundamental point in statutory interpretation to look at the relevant
words or provisions having regard to their context and purpose. This was made clear by sir Anthony Mason NPJ
in his judgment in HKSAR v Lam Kwong Wai (2006) 9HKCFAR 574 at paragraph 63
where he explained that the modern approach to statutory interpretation insists
that context and purpose be considered in the first instance, especially in the
case of general words, and not merely at some later stage when ambiguity may be
thought to arise. This was reinforced in
subsequent decisions of the Court of Final Appeal in HKSAR v Cheung Kwun Yin
(2009) 12 HKCFAR at paragraphs 12 and 13 and Vallejos and Domingo v Commissioner
of Registration [2013] 2 HKLRD 533 at paragraph 76 and 77. Statutory interpretation therefore requires
considering and understanding the relevant statutory wording or provisions in
light of their context and statutory purpose.”
Taken out of context to decide
that “professional misconduct in Hong Kong” was equivalent to “serious
profession misconduct in UK that needed not be serious” was bound to result in
absurdity. Any fallen short of standard,
no matter how trivial, could then be professional misconduct. Unfortunately, the decision in Koo Kwok Ho was followed in Too Chun Fung v Medical Council of Hong Kong
CACV 206/2000. In Too Chun Fung, the
appellant argued that there needed to be something more than just fallen short
of standard to constitute professional misconduct. The judge did not agree. Similar decision was come to in Ip Wing Kin v Medical Council of Hong Kong
CACV 627/2001.
Next month, I shall further write
on the undesirable effects of the Koo
Kwok Ho decision on the Medical Council, on doctors and on patients.
(Source: HKMA News July 2014)
