Mediation, Disciplinary Procedures and Legal Procedures

 

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)