This is very important. A common
minor mistake can turn into a criminal offence and prevent you from practicing
for years. Such mistakes are made every
year by hundreds of doctors. You might
be one of them.
In 2013, a doctor was arrested in
his clinic because of “practice of medicine without registration”. He was then found guilty and fined $20000. That was not the end of the story. Since he had committed an offence punishable
with imprisonment, he was caught by another section [s21(1)(a)] of the Medical
Registration Ordinance (MRO) and he would need to go through investigations by
the Preliminary Investigation Committee (PIC) of the Medical Council, and then
might need to face an inquiry. By the
time, his name was still not on the General Register (GR). He would need to wait for procedures such as a
restoration hearing before he could start to practice again.
What had this poor colleague of
us done? Actually he had forgotten to
renew his Annual Practicing Certificate. After repeated reminders from the Medical
Council, his name was removed from the GR. He was caught not because he ignored the
removal notice from the Medical Council and continued to practice after he knew
of the removal. He was caught because he
incriminated himself when he filed the application form for restoration. I have
to tell you that there is a serious problem with the application form for
restoration. The applicant will end up
either incriminating himself or making a false declaration.
To understand this typical “Catch-22”
situation, I have to first get straight some facts:
- A doctor has to renew his Annual Practicing Certificate before the end of each year. If he fails to do so, after a grace period of 6 months, his name would be removed from the GR.
- According to section 28 of the MRO, it is a criminal offence to call himself a doctor if his name is not on the GR. He will be liable to a fine and imprisonment up to 3 years. It is another offence if he practices medicine when his name is not on the GR. He will be liable to a fine and imprisonment up to 7 years. Moreover, he has to get rid of most of his medication stocks as he is no longer entitled to possess them. Otherwise he would be liable to other fines and sentences of imprisonment according to the Pharmacy and Poisons Ordinance, the Antibiotics Ordinance and the Dangerous Drugs Ordinance.
- When he is (finally) notified by the Medical Council that his name is removed from the GR, as a good and sensible citizen (as he is no longer a doctor), he will stop his practice and immediately file for restoration. In the application form for restoration, he needs to make a declaration. He needs to declare whether he has practiced medicine during the period when his named is removed from the GR. It is this part of the form that makes him liable no matter what he declares.
- Obviously, if he is not aware of the fact that he has forgotten to renew his Annual Practicing Certificate, there ought to exist a period that he is still practicing before he is notified of his removal. Our afore-mentioned colleague was honest enough to answer “Yes” to this question. The result was that it amounted to self-incrimination and the police was notified.
- What about answering “No” to that question? In the notification of removal, the date of removal is given. That means the doctor should be fully aware that he has been practicing between the date of removal and the date of being noticed. He will be making a false declaration. This, again, is a criminal offence.
Do readers feel akin to the
ice-bucket challenge after reading the above facts? Starting with a relatively minor mistake with
no malice or fraudulent intent, a doctor can end up with criminal charges and
be unable to practice for a long period. This situation was brought to attention to the
Medical Council. However there had been
to no avail. The legal advice was that
the applicant for restoration could choose not to answer that particular
question. Such advice was obviously
nothing but absurd, if not an affront to common sense.
But don’t worry! I have some important observations here for
our members. Every year, there are
hundreds of doctors being removed from the GR in July due to failure to apply
for the Annual Practicing Certificate. They
have to apply for restoration. In all
these years, I am not aware of any doctor being caught and found guilty of
making false declaration. You might draw an inference that the
Medical Council is more tolerable to false declarations than
self-incrimination. I must point out
firmly that I am not hinting such inference. My advice is: try not to forget to renew your
Annual Practicing Certificate.
As a member of the Medical
Council, I think it is prudent to work out something more concrete to solve
this problem than to provide facts for colleagues to draw inference. I go through relevant sections of the MRO,
procedures for restoration and cases on this matter. There was a similar case in 2009 (Tong Ngai Chiu) and the judge dismissed
the criminal charges. The defense
counsel brilliantly relied on the important defense developed from the case Fong Chin Yue. I summarize as follows:
- Section 28 of the MRO should not be interpreted in a way that there would be a “gap through which the innocent might fall to their harm”. Criminalizing absent-minded-mistakes should not be the intention of the Ordinance.
- Thus, there existed a defense to the charge. “If the accused could prove on a balance of probabilities that he believed for good and sufficient reason, although erroneously, that the provisions of the Ordinance had been complied with”, he would not be guilty of the charge.
- “A magistrate should approach such defence with fairness, common-sense, relevant consideration should be… whether the accused gained or stood to gain by offending the extent of any such gain, and how it compared with what he could earn by honest means.”
Following the decision from Tong Ngai Chiu, I suggest adding the
following items to the restoration application forms:
- Date of knowledge of being removed from the GR
- Period the applicant has been practicing after his name was removed from the GR, if any
- A declaration by the applicant that he believes for good and sufficient reason, although erroneously, that his name were on the GR during the period mentioned above
I believe (hopefully not
erroneously) that such approach, with some refinement, can solve the Catch-22
situation for good. I shall write to the
Chairman of the Medical Council and introduce this approach for discussion. In the meantime, please make sure you pay and apply for the Annual Practicing Certificate
before the end of this year. Since
those absent-minded colleagues are removed from the GR in July each year, I don’t
think anyone needs to draw any inference now.
(Source: HKMA News September 2014)
