I heard repeatedly people talking
about mediation as the solution to the long waiting time for the Medical
Council to handle a complaint. I would
like to point out that without drastic changes made to the disciplinary
procedures, mediation would not work. In
particular, the definition of professional misconduct needs to be readdressed.
Mediation is a useful means of
dispute resolution. The special nature
of being non-adversarial and non-fault-finding allows mediation to be flexible
and to address the needs of both parties. There can be a win-win outcome as decision of
fault is not necessary. Either party
does not need to fight claws-and-nails to defend themselves. It is therefore most useful in settling
contractual disputes and matrimonial disputes.
However, it is also the nature of
mediation that makes it not suitable for disciplinary purposes. The aim of disciplinary procedures is to
uphold professional standards, and thus ultimately to protect the public. Clear rules are set to tell members of the
profession what conducts are not acceptable. Members falling below such standards result in
disciplinary actions. Such actions are
not just for punishment. They serve to deter
undesirable behavior. The criminal arm
of legal procedures shares the same objectives with disciplinary procedures. There is no room for mediation and settlement
between parties in such respect.
In actual practice, disciplinary
procedures are between the Secretary of the Medical Council and the defendant
doctors. They are not between complainants
and defendant doctors. Once the Medical
Council proceeds with a complaint, even the complainant cannot withdraw it and
stop the action. They cannot settle
among themselves. This is because the
Medical Council is not just answerable to the complainant. The Medical Council has to investigate the
case and decide on it so as to uphold the standard of the profession. It is answerable to the public.
Therefore mediation cannot be
incorporated into the current disciplinary procedures simply as an alternative
to inquiries. It needs to run parallel
to the current procedures and with a different objective. Mediation cannot uphold standards. Rather, it provides redress to dissatisfied
patients. They serve different purposes
and cannot replace each other.
There are 2 major difficulties in
adding mediation to our disciplinary procedures. First, talking about redress, apart from
apologies, compensation in terms of money is involved. The Medical Council needs to consider whether
it wants to open another channel for compensation in addition to claiming
personal injury in the area of tort. Second,
if the aim is to expedite disciplinary procedures, complaints need to be channeled
to either inquiry or mediation, but not both. To do so, a clear distinction between
professional misconduct and non-professional misconduct cases is needed.
However, the scope of misconduct
now is exceedingly wide. Anything fallen
short of expected standards would be regarded misconduct, no matter how slight
or trivial it is. This resulted from a
judgment from the Court of Appeal which ruled that the fallen short of
standards needed not be serious. It
would be very difficult, if not impossible, to find cases not within such wide
scope of misconduct. Thus, mediation
would not be helpful to lessen the case load of inquiry or shorten the waiting
time. Rather, mediation deals with some
other new categories of complaints.
To further illustrate the interplay
among legal procedures, disciplinary procedures and mediation, I use the case
of the 7 police officers as an example. 7
police officers were charged with causing grievous
bodily harm with intent, contrary to section 17(a) of the Offences against the
Person Ordinance. They were found guilty of a substitute offence of assault occasioning actual bodily harm, which was of lesser degree than the
original charge. All of them were
sentenced to imprisonment for 2 years. The
verdict caused dissatisfaction among the police and some citizens. There were criticisms against the judge and
there were assemblies to support the defendants.
In this case, it was the Hong
Kong Government that prosecuted the 7 police officers. It was not a case between the victim who was
beaten up and the 7 police officers. In
criminal procedures, it is the role of the government to uphold law and order. During the trial, lawyers representing the
defendants argued on every fine detail of the case. They challenged the authenticity of each and
every video and photograph, the admissibility of each and every video and
photograph, the identification of all the defendants, the credibility of every
witness, and when and how the wounds on the victim were caused. Much time was spent on issues such as the
carrying of batons and the use of protective knee caps by the police officers. However, not one of the lawyers argued that it
was lawful to beat up someone after tying him up. No one challenged the Offences against the
Person Ordinance.
It was alarming to see members of
the police who were law-enforcing personnel to opine otherwise. The court had to act according to provisions
and case laws. There was no room to
address requests for preferential treatment. A clear message had to be sent against
behavior that was sanctioned by the society. The same applied for disciplinary procedures. Once found guilty, the services of the 7
police officers had to be terminated without pensions. Otherwise, a wrong message of endorsement of
illegal acts might be conveyed.
Mediation does not focus on right
and wrong. It is not relied upon to send
important messages to the public. It
aims at resolving dispute and addressing the needs of both parties. Allowing all shades of gray, the conduct of
the 7 police officers was not real evil. At least some of their colleagues took it as
if it was their norm. The crime was out
of rage and I did not think they meant to cause serious harm to the victim.
Mediation is also about being
down to earth. It distinguishes between
wants and needs. The defendants might
unrealistically want to maintain that they were innocent. Some people might want the charges quashed. However, did they really have no remorse at
all? Given another chance, would they do
it again? What they really need was
rehabilitation. Donations would be
helpful. But was it necessary to bundle
donations with all sorts of wants from other parties? During the trial, because of the adversarial
nature, there was no chance for the parties to communicate, or to offer
apologies to each other. It would be of
much benefit to the defendants, to the image of the police, and to the public
if the 7 police officers and their colleagues could see their needs and moved
on.
It is time to understand more on
mediation, legal procedures and disciplinary procedures. It is time to use them accordingly and appropriately.
(Source: HKMA News March 2017)
