From the Editor

(Source: HKMA News Dec 2018)

100th Anniversary

 

Last month, I stayed in Taipei for a few days.  Taipei is a city I don’t like too much.  While my friends went to shop for snacks that no body actually needed, I strolled around aimlessly, listening to once-upon-a-time pop songs in Mandarin via my Bluetooth noise-reduction earphones.

When I entered R79 Eslite Underground（誠品 R79 中山地下書街）, there was an exhibition showing paintings of vivid, soft and colorful images of children on huge light-boxes with annotations.  They were works by the famous Japanese children’s book illustrator Chihiro Iwasaki（岩崎知弘）.  She was born in 1918, and 2018 marks the centennial of her birth.  There were various celebration activities.  The National Museum of History in Taiwan cooperated with the Chihiro Art Museum in Japan and held an exhibition to present 100 pieces of her original work.  In this R79 Eslite Underground exhibition, several local writers pay tribute to Chihiro Iwasaki by choosing a few pieces of her work and wrote short stories accordingly.  This was the reverse of creating illustrations for story books, in which a story was written first.

Chihiro Iwasaki was born before her two sisters in 1918 to working parents in Fukui Prefecture.  She was raised in Tokyo and she was very active in painting and sports.  At age 14, she started to learn oil painting and sketch from Tokyo Art School professor and painter Saburosuke Okata.  When she was 18, she began to learn calligraphy.  The work I Can Do It All by Myself in 1956, in which she depicted her son, was her first picture book.  She then produced various picture books and illustrated for children’s books.  The Pretty Bird won the Graphic Prize Fiera di Bologna in 1971.  Children in the Flames of War won the bronze medal of the Leipzig International Book Fair in 1973.  Chihiro passed away because of liver cancer at the age of 55 in 1974.

The book that made Chihiro most well known was written after her death.  It was written by the Japanese actress and UNICEF Goodwill Ambassador, Tetsuko Kuroyanagi（黑柳徹子）, about her experience in the Tomoe Gakuen School where she attended as a little girl.  Tetsuko chose from the abundant works of Chihiro and was able to find a character that matched the dropped-out girl perfectly both in positions and expressions in her book Totto-Chan: The Little Girl at the Window.  The book made Japanese publishing history by selling more than 5 million before the end of 1982.  It was later translated into different languages.   

Around 1938, Tetsuko, addressed as Totto-Chan by her classmates, was kicked out soon after she entered school as first-grader.  Her form teacher complaint that she was naughty and disturbed the discipline of the class.  She talked too much.  She always stood at the window, called to the street musicians passing by and asked them to play a song.  She talked to every bird outside.  She repeatedly opened and shut the lid of her new desk.  Her mother was left with no choice but to bring her to an interview of a new school.  Totto-Chan was lucky to have a mother who was minded not to blame her, and to meet a kind educationalist headmaster who accepted her to his school after listening to her talking non-stop for 4 hours during her interview.  Her book was about those interesting stories while she learnt and grew in this warm and special school.

I liked this book, both the stories and the illustrations.  I shared the feelings of the author towards Chihiro: “Chihiro Iwasaki is such a genius to depict children.  I don’t think any other artist in the world can draw vivid and authentic children as such.  In her works, you can tell the difference even between six months old and nine months old, no matter what poses these children are.  I’ve always dreamed about using Iwasaki’s illustration in this book.  she loves children so much, and she is so willing to pray and give blessings to children.  What can be happier than fulfilling my dream?  As my story and Iwasaki’s works are so well coordinated, some readers assume these works are done in advance particularly for me.  This shows her works really portray different aspects of many children.”    

Why am I writing about Chihiro Iwasaki?  Apart from the fact that she was a great artist, it is the 100^th anniversary of her birth.  The HKMA will celebrate her 100^th birthday in 2020.  We are planning a series of celebration activities starting the forth season in 2019 through 2020.  There will be a kick-off cardiology symposium, followed by different sports and cultural activities.  The HKMA Orchestra and the HKMA Choir are already planning a grand concert in the forth season in 2020, followed by the Gala Dinner to mark the finale.

If you have any ideas on how to celebrate this important event meaningfully, please tell us.  And, prepare to hear from us on how and when you can join in one or more of the celebration activities.

(Source: HKMA News Nov 2018) 

Mandatory CME

Mandatory CME is on the way. 

I expect that half of our readers do not know what I am talking about.  In Hong Kong, there are around 14,000 registered doctors.  Among them, around 7,000 are on the Specialist Register.  Only doctors on the Specialist Register need to fulfill specified CME requirements to stay on the Specialist Register.  The word “mandatory” means “made necessary, usually by law or by some other rules”.  Section 20L of the Medical Registration Ordinance (MRO) specifies that: “A registered medical practitioner whose name is included in the Specialist Register shall undergo such continuing medical education relevant to the specialty under which his name is included in the Specialist Register as may be determined by the Academy of Medicine.”  Details of such requirements are provided in the “Principles and Guidelines on Continuing Medical Education and Continuous Professional Development (CME/CPD)” issued by the Academy of Medicine.  Basically, a doctor has to obtain a minimum of 90 points in a 3-year cycle. 

There is no such statutory requirement for non-specialist.  Instead, the Medical Council has implemented a “Voluntary CME Programme for Practising Doctors who are not taking CME for Specialists” since October 1, 2001.  It states that "the purpose of the Programme is to encourage pracitisng doctors to keep themselves up-to-date on current developments in medical practice so as to maintain a high professional standard.  Practising doctors who are not taking CME for specialists are invited to enroll in the Programme on a voluntary basis."  Doctors who have satisfied with the CME requirements (obtaining more than 90 points in a 3-year-cycle) are allowed to use the title "CME-Certified". 

In June 2017, the Steering Committee on Strategic Review on Healthcare Manpower Planning and Professional Development released a review report.  There is a chapter on “Continuing Professional Education and/or Development”.  It recommends that: “Boards and Councils should continue to upkeep the strong professional competency of healthcare professionals through, among others, making continuing professional education and/or continuing professional development a mandatory requirement.”  It points out clearly that: “Non-specialist doctors and non-specialist dentists may on their own volition voluntarily enrol in CPE/CPD administered by MCHK and DCHK respectively, but they do not have an obligation as that of their specialist counterparts to undertake and complete continuing professional education.”  “The Steering Committee considers that CPE/CPD should not be just option or confined to specialists, but should be widely promoted and ultimately become a mandatory requirement for healthcare professionals under statutory registration.” 

Recently, I heard repeatedly small talks (and big ones) on the implementation of mandatory CME for non-specialists.  I think there is no disagreement on the need for CME for all doctors, specialists and non-specialist alike.  However, making CME mandatory is another matter.  Before we debate on whether it should or should not be, I look at the hurdles.  The first one is about how to make CME mandatory.  There is no provision in the MRO on the requirement for and the sanction against not having CME for non-specialists.  To amend the MRO is no easy job and it takes much time. 

The Steering Committee has considered this also and states that “a possible route for implementing mandatory CPE/CPD – as an alternative to legislative amendments – is that Boards and Councils may determine and set out the CPE/CPD requirements as part and parcel of their professional standard requirements e.g. the code of professional conduct and establish a mechanism to oversee whether the healthcare professionals have satisfied the CPE/CPD requirement.”  What the Steering Committee suggests is to use the disciplinary procedures to penalize doctors who fail to satisfy CME requirements.  One way to do so is to put it in the Code of Conduct and deem non-complying doctors fallen below expected standards.  They would be found misconduct in a professional respect after going through the normal PIC and Inquiry procedures.  Whether this way is feasible or desirable will be the subject of much debate. 

The second hurdle would be the capacity to offer CME training.  For the self-study part, it is easier.  If the current voluntary requirements are kept, 20 points a year would be from self-study.  Another 10 points need to be obtained by attending seminars.  If we take 7,000 non-specialists, at least 70,000 hours/points a year would be in need.  This means that around 200 hours/points a day need to be provided.  If one seminar can provide one hour/point to 50 doctors, 4 such seminars need to be held every day. A big step forward in solving this resource problem is the recognition of on-line interactive seminars by the Medical Council. 

Other hurdles include acceptance by stakeholders, resource implications to doctors and to the Medical Council, legal implications and appeal mechanisms.  

It seems that the government has made up its mind on this mandatory CME issue.  It is stated clearly in the Review that “Once the relevant Board and Council has reached a view on how mandatory CPE/CPD should be achieved, it should draw up an implementation plan in consultation with the profession.”  I foresee that at the end of this year, we have to face such consultation.

 

(Source: HKMA News Oct 2018) 

It Is Time to Revisit Sentencing by the Medical Council for DD Offences

Doctors need to handle dangerous drugs (DD) with care.  The storage and the use of dangerous drugs are regulated by the Dangerous Drugs Regulations (DDR).  Section 5 of the DDR specifies that a doctor has to keep a register for his dangerous drugs.  There are clear requirements spelt out in the section.  More than that, there is a Form of Register provided in Schedule 1 of the DDR, which is the format to follow.  Section 5 of the DDR states that any person who contravenes any of the provisions shall be guilty of an offence and shall be liable on conviction to a fine of $450,000 and to imprisonment for 3 years.  

Since it is an offence punishable with imprisonment, the doctor convicted by the district court of DD offences needs to report to the Medical Council.  According to Section 21(1)(a) of the Medical Registration Ordinance (MRO), the Preliminary Investigation Committee shall investigate the case and refer it to an inquiry panel if indicated.  After hearing the case, if the inquiry panel finds the doctor guilty, it can sentence according to the options spelt out in the same section of the MRO. 

In recent years, I have an impression that DD cases were sentenced differently from other cases by inquiry panels.  Even for much less serious offences, such as small discrepancies in DD stocks, the doctors were removed from the General Register (GR) for a month or more, some with suspended sentences.  Practice monitors were assigned to check on the doctors during the periods of suspended sentences.  As a result, many convicted doctors stated that they would stay away from using DDs altogether.  Some doctors used the avoidance of using DDs as a mitigation factor during inquiries.  Obviously, this is not healthy or desirable.   

It was mentioned repeatedly in judgments that “all cases of failing to comply with the statutory requirements to keep proper dangerous drugs registers have been dealt with by removal from the General Register, and in less serious cases the removal orders were suspended for a period with the condition of peer audit and supervision.” 

I went through judgments from inquiries and from the Court of Appeal, trying to figure out when and why this “board approach” came about.  In 1995, the Medical Council found Dr. Lai Chung Lim guilty of DD offences and ordered to remove him from the GR for 3 months.  In the judgment, it stated that: “The medical council is determined to send the clearest possible message to Dr. Lai and to other doctors who are breaking these rules: you can normally expect to receive a period of suspension from practice if you are found to be in breach of the dangerous drugs regulations.”  Dr. Lai appealed. The Court of Appeal upheld the decision of the Medical Council ([1996] HKCA 495). 

However, it did not mean that the Court of Appeal had agreed to or prescribed a starting point of removal from the GR for DD cases.  The Court of Appeal usually would not intervene with the decisions of the Medical Council as long as it “has not been guilty of some procedural impropriety or has not misunderstood any underlying legal principles.”  However, the judge did comment on this case that “it is a matter of regret that the Medical Council discounted the decision of another division of this court in the case of Ng Mei Sin v Medical Council.” 

In Ng Mei Sin [1995] HKCA 518 and before, such as in the case of Mao Chun Ting [1995] HKCA 530, the judge opined that the gravity of the offence needed to be considered.  He drew an inference that the appellant doctor acted out of ignorance.  He saw that “the courts have a tendency to treat offences of moral turpitude much more seriously than those of technical breaches of regulations.”  And, “it seems to me that the broad-brush approach of the medical council- treating in effect all offenders alike- is wrong in principle.”  In a more recent case of Lau Koon Leung [2006] HKCA 95, the judge suggested relevant factors to be considered in sentencing.  They included: the reason for not keeping proper record; the quantity of drugs; the nature of drugs and any evidence that the doctor was selling addictive drugs for profit.  He also pointed out that the list was not exhaustive and other factors might well be relevant in the circumstances of an individual case. 

Thus, Lai Chung Lim only serves as a precedent case on the inquiry level.  While it has to be considered, the distinguishing features of this case need to be noted:

1.  Large quantities of dangerous drugs were involved.
2. The council found the defendant doctor dishonourable.
3. The decision departed from its precedent cases.
4. The reason given by the council was that: “the problem of drugs getting into the wrong hands is becoming an increasingly serious problem in HK as time passes”, with emphasis put on the word increasingly.  The decision was made in 1995, which was 23 years ago.  The drug scene has much changed in recent years. 

Talking about precedents, actually there were at least 2 DD cases where the defendant doctors were sentenced much more leniently by inquiry panels after Lai Chun Lim.  In February 2002, the Inquiry Panel “accepted that the omission/commission of matters arose out of carelessness rather than a deliberate intention to contravene the Dangerous Drugs Ordinance” and served a warning letter to the defendant doctor without publishing the decision in the Gazette.  In February 2006, the Inquiry Panel “accept(s) that the discrepancy in quantity between the stock and the records of dangerous drugs is towards the lowest end of the scale in cases of similar nature.”  And “that this is a case of negligence rather than a case of inappropriate dealing with dangerous drugs.”  A warning letter was served.  Both cases were decided by senior members of the Medical Council in the relevant years. 

It is high time for the Medical Council to revisit its sentencing on DD cases.  The drug abuse scene has much changed in recent years as compared to 20 years ago.  It is undesirable for a doctor with technical breach of the DDR to be removed from the GR.  It is unhealthy to dissuade doctors from using DDs just because of the disproportionally heavy sentencing on DD offences. 

(Source: HKMA News Sep 2018) 

Do No Harm......

I was amused when I read in newspaper that not unlike previous years, top-scorers in the HKDSE chose to study medicine, and their reason was to be a good doctor and to help others.  Sooner or later, they will realize that it is not easy to become a good doctor.  More than that, there is no equal sign between a good doctor and helping others.

It is much easier to score high in an examination, or to be proficient in a certain skill.  There are always tricks to learn and ways to practice.  People seldom frown on a chef who is a fooling-around-foul-mouth-jerk.  They just remember his signature dish.  Magazines will interview him for his pigeon pithivier with French mushroom duxelles and foie gras.  He will never be threatened to have his name removed from the chef register by the “chef council” if it really exists.

You need more to be a good doctor.  Among other parameters, there are ethical considerations.  Our Red Book, the Code of Professional Conduct published by the Medical Council, provides some guidance on medical ethics.  In section C it reproduces the International Code of Medical Ethics adopted by the World Medical Association.  It spells out “Duties of Physicians in General”, under which there are 12 items; “Duties of Physicians to Patients”, under which there are 7 items; and “Duties of Physicians to Colleagues”, under which there are 3 items.  Section D refers us to the Declaration of Geneva, in which the doctor makes 10 pledges.

For easy memory, especially during viva examination, there is an ABCDE mnemonic for medical ethics: Autonomy; Beneficence; Confidentiality; Do no harm; Justice.  The most mentioned principle by laymen and doctors alike is the fourth one: Do no harm.  Many believe that it came from the Hippocratic Oath.  However, the exact Latin phase of “Primum non nocere” was likely to originate from another series written by Hippocrates called Epidemics.  (Epidemics means visits.  There were 7 books describing physicians’ visits to patients in different areas.)

Actually, “Primum non nocere” means: “First, do no harm”.  Some regard it the first principle in medical ethics.  Others see it as a practice guideline.  When facing an ethical dilemma, or when making a medical decision, check whether you might harm the patient by your intervention first.

If you construe the word “harm” in the narrowest sense, “Primum non nocere” becomes meaningless.  Every surgical procedure is harming the patient physically.  Even telling the patient what he is suffering from might harm his feeling.  Therefore, “harm” must be relative.  That is, taking everything together, there is more benefit than harm.  The question is: Who is to decide whether it is doing more harm than good?   

Evidence-based medicine is the cornerstone of modern medicine.  It can provide an objective measurement for medical interventions.  However, life is not that simple.  Liposuction is unlikely to improve life expectancy, but it is practiced every day.  There is a strong component of value judgment in which objective measurement alone does not help.  In the good old days, it was the doctor who made the call.  The doctor was relied on to choose for the patient with his knowledge and good intent.  As time moved on, and maybe as people realized that there existed bad doctors, patients wanted to have their says.  The ultimate decision was from the patient.  To help the patient to make the decision, the doctor’s responsibility became to inform the patient of every aspect of the medical interventions: different options, pros, cons and complications.  Nowadays, it is not enough just to inform the patient of each and every detail.  The doctor has to practically educate the patient from scratch, taking into consideration the patient’s background, mentality, religion, value, his obsession towards alternative medicine, and his position in the family and society.  Whether the doctor has discharged his responsibility would be judged not only by his own consciousness or the patient involved.  He is answerable to the Medical Council, the courts of law, the media, and the society at large.

If the above is not complicated enough, I remind you that we have been talking about one patient.  In a disaster scene, the doctor needs to decide on attending which patient first.  Working under our more-than-a-little-bit-far-from-satisfactory Hospital Authority, the doctor needs to see 50 patients in a morning outpatient session.  In real life where resources are limited, there is always the problem of rationing.    

Maybe that was the reason why the wise Hippocrates of Kos did not include “Primum non nocere” in his Oath.  Rather, he opted for the middle way: "I will apply, for the benefit of the sick, all measures that are required, avoiding those twin traps of overtreatment and therapeutic nihilism."

 
(Source: HKMA News Aug 2018)

From the Editor

(Source: HKMA News July 2018) 

In Control

 

I just finished the new book by Richard Wiseman: How to Remember Everything.  Richard Wiseman was born in Luton, England, in 1966.  He started his working life as a teenage magician at Covent Garden.  At 18, he studied Psychology at the University College London.  He obtained his PhD in Psychology from the University of Edinburgh.  He held Britain’s only Professorship in Public Understanding of Psychology at the University of Hertfordshire.  His research examines a wide range of topics, including good & bad luck, humor, deception, illusion, sleep, dreams, and the belief in paranormal.  His papers have been published in the world’s leading scientific journals.  He wrote more than 10 books (Parapsychology, Quirkology, Paranormally: Why We See What Isn’t There, Night School), of which several become best sellers and have been translated in over 20 languages. 

As doctors, we have confidence in our memories.  I can tell you that there is not much new from that little book.  And, you need to practice and practice (and practice) to remember everything you want to memorize.  That is another good illustration of the gap between knowing and doing.  

However, there is an interesting trick I want to share with readers.  It is in the middle of the book, totally unrelated to memory.  Now, try to do as instructed.

1. Think of any number between 1 and 9
2. Multiply your number by 2
3. Add 8 to your new number
4. Divide your new number by 2
5. Subtract your original number from your new number
6. OK, now you have a number between 1 and 26.  Take that number and match it to its equivalent letter of the alphabet, with 1=A, 2=B, 3=C, 4=D, 5=E, 6=F, 7=G and so on
7. Pick a country anywhere in the world that starts with that letter
8. Now take the second letter of that country and think of an animal that begins with that letter
9. Finally, think of the colour of that animal

I am pretty sure that you have a gray elephant in your mind.

Actually, this trick is best performed face to face.  Writing it here has already partially decipher it.  This is because readers would realize that the answer is always the same for everyone.  If you care to write down the formula of the first 5 steps, high school mathematics will tell you that no matter what number you choose, the answer is 4.  Everyone would get the alphabet D.  Google searching will tell you that Denmark is the only country to begin with D that most people can think of.  So, the second alphabet (that is E) is also fixed.  Since kindergarten, we are taught about E for elephant.  Unless you are from Australia, you might think about emu instead.  And then for most people, elephants appear in gray colour, if no one hints you about a pink elephant before the test. 

While you have the impression of being in control, everything is pre-set.  The first part is fixed no matter what you choose.  The latter parts are not absolute, but few people can deviate from the set-up because of our knowledge and our habits. 

“The more you think you see, the less you'll actually notice.”  This line was said repeatedly in the movie Now You See Me.  In this 2013 American movie, Jesse Eisenberg and 3 other magicians were recruited by the legendary secret magician organization, The Eye, to carry out a well-planned complicated illegal mission.  FBI agent Mark Ruffalo and Interpol agent Melanie Laurent thought that the 4 were going for big money.  But the plot was a revenge against several targets.  Morgan Freeman was an ex-magician who professed in elucidating tricks of other magicians for publicity and for money.  He stepped in as the expert and coached the special agents. 

“When a magician waves his hand and says, ‘This is where the magic is happening.’  The real trick is happening somewhere else.  Misdirection.”  By his expertise, he was able to see through deceptions and be one step ahead of the 4, so he thought.  The ex-magician and the 4 illusionists alike, knew that “rule number one of magic is to be the smartest guy in the room”.  Of course, the smartest guy was the one from The Eye.  Morgan Freeman had been standing too close.  His proximity was, however, part of the plot.  He was set-up to be in a false sense of control.  The more he thought he saw, the less he actually noticed.  He was one of the targets. 

The two ex-magicians, Wiseman and Freeman, taught us the lesson that the sense of being in control made you susceptible to be controlled. 

 

(Source: HKMA News June 2018)

Preliminary Investigation Committee PIC

After much controversy, the Medical Registration (Amendment) Ordinance has come into effect after April 6, 2018.  While much attention has been focused on the composition of the Medical Council (the Council), particularly the ratio between appointed and elected members from the profession, there are other changes that are equally important.  In this month’s HKMA News, the Special Feature article from Mayer Brown JSM is on the changes to the Medical Council disciplinary structure and procedure under the Amendment Ordinance.  It appears that some of such changes ripple from the judgment of a judicial review case on the decision of the Preliminary Investigation Committee (PIC) of the Medical Council: Law Yiu Wai, Ray v. The Medical Council of Hong Kong and Others, HCAL 46/2015.  I review some recent court cases on the PIC and will discuss how the court sees the composition, the function and the power of the PIC fit in the whole disciplinary procedure of the Medical Council.  Changes under the Amendment Ordinance will also be analyzed.  For easy reference, quotes from judgments are also included in my full article, which is available online.  You can just scan the QR code on the “bear bear” photo to access. 

The Medical Council is a statutory body established under the Medical Registration Ordinance (MRO) to regulate the medical profession in Hong Kong through a system of registration.  Among the various duties and responsibilities, the Council is required to handle complaints and to conduct inquiry and disciplinary proceedings.  Section 21 of the MRO sets out the disciplinary powers conferred to the Council.  Details of the disciplinary procedures are set out in the Medical Practitioner (Regulation and Disciplinary Procedure) Regulation (MPR).

While we are familiar with the PIC and the Inquiry, the court considers the disciplinary procedure as composing of 3 tiers: an initial check by the PIC Chairman and Deputy Chairman, investigation by the PIC, and the formal inquiry hearing.[i]  The role of the PIC is important as it screens cases twice and can determine which case to refer to inquiry.  The composition of the PIC is set out in Section 20S of the MRO. Before the Amendment Ordinance, among the 7 PIC members, 6 were medical practitioners.  The lay member was from 1 of the 4 lay members of the Council.  The Chairman and Deputy Chairman were members of the Council and were elected by the Council.  The 4 medical practitioners (who had to be non-Council-members) were nominated by the Director of Health, the HK Medical Association, the Hospital Authority and any member of the Council respectively.  After the Amendment Ordinance, more than one PIC can be established.  Each PIC is still composed of 7 members.  However, the number of lay members has increased to 3.  They can either be lay Council members or lay Assessors.  For the 4 medical practitioners, they can either be Council members or Assessors. All the PIC members are appointed by the Council.  The Chairman and Depute Chairman of the PIC are appointed by the Council from the 7 PIC members.[ii] 

The implications of the changes are that the ratio of laymen to medical practitioners has increased from 1:6 to 3:4.  The Chairman and Depute Chairman can be laymen, and they can be non-Council-members.  To an extreme, a PIC can be formed with no Council member at all and chaired by a layman.  However, a majority of medical practitioners is still required for a meeting of the PIC. 

 
The functions of PIC and its Chairman are set out in Section 20T of the MRO[iii].  Details of the procedures for the PIC are set out in Part 3 of the MPR.  There is no actual change to these sections except some wordings to accommodate the establishment of more than one PIC. 

For a 3-tier system, it is important to distinguish the function and the scope of power of each tier.  In Dr Leung Kam Chung Kenneth v Medical Council, CACV 33/1996, the defendant doctor was complaint about his liposuction procedures.  The PIC found evidence of canvassing in the course of investigation and added new charges when it referred the case for inquiry.  The PIC was ruled acting beyond its power.  The court stated that the function of the PIC was a screener "to ensure that medical practitioners are not vexed with complaints which might turn out, after inquiry, to be groundless." [iv]  However, in Dr. Li Wang Pong v. Medical Council, HCAL12/2008, the court affirmed that the PIC Chairman was entitled to formulate charges that were not complaint about.  The defendant doctor was complaint about canvassing.  The PIC Chairman, after reading related materials, found problems with the defendant doctor's liposuction procedure.  The court relied on an English case R v General Medical Council, Ex parte Toth [2000] 1 WLR 2209, and emphasized the overarching principle of protecting the public.[v]  Thus, "the Chairman of the PIC is not bound to adopt a blinkered approach. He is not restricted to the specific complaint made by the complainant."  In Dr. U v. PIC, HCAL 12/2008, a complaint against a urologist about a TURP operation was dismissed at the first tier.  Later, the urologist admitted liability in a civil claim.  The court ruled that the PIC could reopen a case even when the Chairman and Deputy Chairman had dismissed the complaint on the grounds that the complaint was groundless, provided that there was new information supplied[vi]. 

To protect the public, the scope of power of the PIC seems to be construed quite wide.  However, for the same principle of public protection, the court in Law Yiu Wai reiterated the screening duty of the PIC and narrowed its investigatory power[vii]:  "The PIC must approach its task with the utmost caution bearing in mind the nature of the procedures where the complainant has no right of access to the medical practitioner's response and the state of the material at that stage.  It is not the PIC's role to resolve any conflicts of evidence."  It also criticized the Chairman and Deputy Chairman of the PIC, as first screener, "to arrogate to themselves the role of the PIC and decide whether the complaint should be referred to the Council for inquiry, still less to arrogate to themselves the role of the PIC and weigh up conflicting evidence or judge the prospects of success."[viii]  The role of resolving conflicts of evidence is left to an inquiry hearing, where witnesses can be examined and cross-examined.  The court makes sure that the first two tiers of the disciplinary procedures err on the side of public protection.  

How far is this public-protection pendulum going to swing?  It encountered the only check from the human right to privacy.  In Chairman and Deputy Chairman of PIC v. Hospital Authority, HKCFI 843, the court refused to issue a mandatory injunction to order the Hospital Authority to produce documents of patients without their consents for the use by the PIC for handling complaints from third parties[ix]. 

With full swing of the pendulum towards public protection, it is hard to see how the new PICs under the Amendment Ordinance can strike a balance to also ensure that medical practitioners are not vexed with complaints which turn out to be groundless.

_____________________

[i] Para 44.  Law Yiu Wai, Ray v. The Medical Council of Hong Kong and Others, HCAL 46/2015.  Briefly stated the statutory scheme for the consideration and determination of complaints is a three tier system.  The first is an initial check by the Chairman or the Deputy Chairman as to whether there is any substance to a complaint.  It is supposed to be a prompt appraisal of a complaint, including any materials supplied, to remove an obvious case that is frivolous or groundless, and should not proceed further.  The case can only be dismissed after consultation between the Chairman and the Deputy Chairman.  If a complaint is not dismissed after the first check, a second more rigorous check by the PIC is conducted as to whether or not to refer the case for inquiry and determination by the Council for inquiry.  This involves a more detailed consideration of the complaint and where the medical practitioner can submit information in response.  In deciding that no inquiry is to be held, the PIC has the option to issue a letter of advice to the medical practitioner.  It is on the basis that the case should be inquired into that a referral is made to the Council for inquiry by way of a formal charge.  Finally, if the PIC makes such a referral, the Council for inquiry then determines by way of formal hearing whether the complaint of "misconduct in a professional respect" is established.

 

 [ii] Comparison Results:

CAP 161 MEDICAL REGISTRATION ORDINANCE Section 20S Preliminary Investigation Committee s20S-19970630.html (19970630)	CAP 161 MEDICAL REGISTRATION ORDINANCE Section 20S Preliminary Investigation Committee s20S.html (Current Version)
Line(s) 9-10: Caution : This is a past version. See the current version for the latest position.	Changed Line(s) 9:
Line(s) 12: (1) If the Council decides to establish the Preliminary Investigation Committee, the Council shall appoint to the Committee— (a) a chairman who shall be elected by the Council from among its members; (b) a deputy chairman who shall be elected by the Council from among its members; (c) 1 registered medical practitioner, not being a member of the Council, nominated by the Hong Kong Medical Association; (d) 1 registered medical practitioner, not being a member of the Council, nominated by the Director; (e) 1 registered medical practitioner, not being a member of the Council, nominated by the Hospital Authority; (f) 1 registered medical practitioner, not being a member of the Council, nominated by any member of the Council; (g) 1 of the 4 lay members of the Council.	Changed Line(s) 11: (1) If the Council decides to establish a Preliminary Investigation Committee, it must appoint to the Committee— (a) 4 registered medical practitioners each of whom is— (i) a member of the Council; or (ii) a medical assessor; and (b) 3 lay persons each of whom is— (i) a lay member of the Council; or (ii) a lay assessor. (Replaced 15 of 2018 s. 18)
Line(s) 14: (2) The quorum of a meeting of the Preliminary Investigation Committee is 3, at least 1 of whom shall be a lay member, subject to the majority being registered medical practitioners, including the chairman or deputy chairman, or both.	Changed Line(s) 13: (1A) The Council must appoint— (a) a member of a Preliminary Investigation Committee to be the chairman of the Committee; and (b) another member of the Committee to be the deputy chairman of the Committee. (Added 15 of 2018 s. 18)
Line(s) 16: (3) At a meeting of the Preliminary Investigation Committee, the chairman or, in his absence, the deputy chairman, shall preside.	Changed Line(s) 15: (2) At a meeting of a Preliminary Investigation Committee, the quorum is 3 persons, at least one of whom is a member appointed under subsection  (1)(b). (Replaced 15 of 2018 s. 18)
Line(s) 18: (4) Notwithstanding subsection (3), if both the chairman and the deputy chairman declare their interest in respect of a particular case which is to be decided at a meeting, neither of them may preside at the meeting and the members present (including the chairman and the deputy chairman) shall elect another member to preside at the meeting.	Changed Line(s) 17: (2A) In addition— (a) the majority of the persons present at the meeting must be registered medical practitioners; and (b) the chairman and the deputy chairman are counted towards the majority mentioned in paragraph (a). (Added 15 of 2018 s. 18)
Line(s) 20: (5) A member of the Preliminary Investigation Committee appointed under subsection (1)(g) shall hold office for such period not exceeding 3 months as the Council may specify in his letter of appointment. Other members of the Preliminary Investigation Committee shall hold office for 12 months.	Changed Line(s) 19-23: (3) At a meeting of a Preliminary Investigation Committee, the chairman or, in his absence, the deputy chairman, shall preside. (Amended 15 of 2018 s. 18) (4) Notwithstanding subsection (3), if both the chairman and the deputy chairman declare their interest in respect of a particular case which is to be decided at a meeting, neither of them may preside at the meeting and the other members present and who form a quorum must elect a person from among themselves to preside at the meeting. (Amended 15 of 2018 s. 18) (5) A member of a Preliminary Investigation Committee— (a) holds office for a period not exceeding 12 months as specified by the Council in the member’s letter of appointment; and (b) is eligible for reappointment for a further period or periods not exceeding 12 months each on the expiry of the member’s period of appointment or reappointment. (Replaced 15 of 2018 s. 18)
Line(s) 41: URL: http://www.hklii.hk/eng/hk/legis/ord/161/s20S-19970630.html	Changed Line(s) 44: URL: http://www.hklii.hk/eng/hk/legis/ord/161/s20S.html

 [iii]

 

CAP 161 MEDICAL REGISTRATION ORDINANCE Section 20T Functions of Preliminary Investigation Committee and its chairman s20T-19970630.html (19970630)	CAP 161 MEDICAL REGISTRATION ORDINANCE Section 20T Functions of Preliminary Investigation Committee and its chairman s20T.html (Current Version)
Line(s) 9-10: Caution : This is a past version. See the current version for the latest position.	Changed Line(s) 9:
Line(s) 12: (1) The Preliminary Investigation Committee has the following functions— (a) to make preliminary investigations into complaints or information touching any matter that may be inquired into by the Council or heard by the Health Committee and to give advice on the matter to any registered medical practitioner;  (b) to make recommendations to the Council for the holding of an inquiry under section 21; (c) to make recommendations to the Health Committee for conducting a hearing;  (d) to make preliminary investigations upon a referral by the Education and Accreditation Committee.	Changed Line(s) 11-12: (1) A Preliminary Investigation Committee has the following functions— (Amended 15 of 2018 s. 19) (a) to make preliminary investigations into complaints or information touching any matter that may be inquired into by an inquiry panel or heard by the Health Committee and to give advice on the matter to any registered medical practitioner; (b) to refer a case to an inquiry panel for holding an inquiry under section 21; (Replaced 15 of 2018 s. 19) (c) to make recommendations to the Health Committee for conducting a hearing; (d) to make preliminary investigations upon a referral by the Education and Accreditation Committee.
Line(s) 14: (2) A matter brought to the attention of the Preliminary Investigation Committee for determining whether the Health Committee should be recommended to conduct a hearing or whether the Council should be recommended to hold an inquiry shall first be considered by the chairman of the Preliminary Investigation Committee or, in his absence, the deputy chairman thereof.	Changed Line(s) 14: (2) A matter brought to the attention of a Preliminary Investigation Committee for determining whether a referral should be made to an inquiry panel, or whether the Health Committee should be recommended to conduct a hearing, must first be considered by the chairman of the Preliminary Investigation Committee or, in his absence, the deputy chairman thereof.
Line(s) 16-20: (3) The Preliminary Investigation Committee, its chairman and deputy chairman shall act in accordance with such regulations in relation to their procedure made under section 33.	Changed Line(s) 16-22: (2A) If a Preliminary Investigation Committee decides to exercise its function described in subsection (1)(b), it must send a written notification of the decision to the Council. (Added 15 of 2018 s. 19) (3) A Preliminary Investigation Committee, its chairman and deputy chairman shall act in accordance with such regulations in relation to their procedure made under section 33. (Amended 15 of 2018 s. 19)
Line(s) 37: URL: http://www.hklii.hk/eng/hk/legis/ord/161/s20T-19970630.html	Changed Line(s) 39: URL: http://www.hklii.hk/eng/hk/legis/ord/161/s20T.html

[iv] Para 9.  The Preliminary Investigation Committee is in effect put in as a screening body, to ensure that medical practitioners are not vexed with complaints which might turn out, after inquiry, to be groundless: And, using the language of Lord Mackay in Gee v. General Medical Council [1987] 2 AER 193 at 197H, in relation to the similar scheme in the United Kingdom, the procedure for preliminary investigation provides "a coherent and important filter process which must be observed".  Given the nature of a medical practitioner's responsibilities, often having to deal professionally with unhappy or even disturbed individuals, this would seem a wise and necessary process.

[v] Para 38. 1.  In R v General Medical Council, Ex parte Toth [2000] 1 WLR 2209, Lightman J commented on the English disciplinary provisions in the following terms (at pp 2217-2219):

"The statutory scheme

10.The provisions in the Act and Rules to which I have referred are designed to protect the public from the risk of practice by practitioners who for any reason (whether competence, integrity or health) are incompetent or unfit to practice and to maintain and sustain the reputation of, and public confidence in, the medical profession.  The public have higher expectations of doctors and members of other self-governing professions, and their governing bodies are under a corresponding duty to protect the public against the incompetent as well as the deliberate wrongdoer; serious professional misconduct includes serious negligence; and whether the treatment of a patient constitutes serious professional misconduct is to be judged by the proper professional standards in the light of the objective facts about the individual patient: see McCandless v General Medical Council [1996] 1 W.L.R. 167.  The Act and Rules set out to provide a just balance between the legitimate expectation of the complainant that a complaint of serious professional misconduct will be fully investigated and the need for legitimate safeguards for the practitioner, who as a professional person may be considered particularly vulnerable to and damaged by unwarranted charges against him.

…...

14. My conclusions are as follows.

(1) The general principles underlying the Act and Rules are that (a) the public have an interest in the maintenance of standards and the investigation of complaints of serious professional misconduct against practitioners; (b) public confidence in the G.M.C. and the medical profession requires, and complainants have a legitimate expectation, that such complaints (in the absence of some special and sufficient reason) will be publicly investigated by the P.C.C.; and (c) justice should in such cases be seen to be done.  This must be most particularly the case where the practitioner continues to be registered and to practice.

(2) There are a serious of processes designed to filter out complaints which need not or ought not to proceed further.

(3) The register’s role is merely to ensure that the complainant has complied with the formal requirements laid down for investigation of a complaint.

(4) The role of the screener is a narrow one.  It is to filer out from the formally correct complaints, not those which in his view ought not to proceed further, but those which he is satisfied (for some sufficient and substantial reason) need not proceed further.  For this purpose he must be satisfied of a negative, namely that the normal course of the complaint proceeding to the P.P.C. need not to be followed.  The assumed starting point is (1) above and the need referred to is the need to honour the legitimate expectation that complaints (in the absence of some special and sufficient reason) will proceed through the P.P.C. to the P.C.C.  The absence of 'need', of which the screener must be satisfied before he can halt the normal course of the complaint to the P.C.C., connotes the absence of any practical reason for the complaint so proceeding and that for the complaint to proceed to the P.C.C. would serve no useful purpose.  There may be no need because there is nothing which in law amounts to a complaint; because the formal verification is lacking; because the matters complained of (even if established) cannot amount to serious professional misconduct; because the complainant withdraws the complaint; or because the practitioner has already ceased to be registered.  Wider questions, as to the prospects of success of the complaint, as to whether the complainant is acting oppressively or as to the justice of the investigation proceeding further, do not lie within the screener's remit.  So far as they may go to the issue whether the complaint ought to proceed, they fall within the remit of the P.P.C.  It is not for the screener to arrogate to himself the role of the P.P.C. and decide whether the complaint ought to proceed further, still less to arrogate to himself the role of the P.C.C. and weigh up conflicting evidence or judge the prospects of success.  He must respect the role assigned by the Rules to the P.P.C. (for which the P.P.C. is armed with investigative powers) and recognise that his duty is only to act as a preliminary filter before the more substantive role as filter is exercised by the P.P.C."

The approach in Toth has been followed thereafter, subject to minor qualifications, as is clear from the English Court of Appeal decision in Henshall v General Medical Council (2005) 88 BMLR 146, 154 to 157 (paras 25 to 33).

[vi] Para 27.2.  Once the case is extant (whether as a result of a new complaint, or of the receipt of new information), it would be completely unrealistic and contrary to the intent and purpose of professional misconduct investigations to suggest that only certain aspects of it (the "new" complaint) may be considered, and not other aspects, for this case only involved one course of treatment of the patient over a single period of only a few days.  

[vii] Para 135.  The salient tasks and functions of the PIC during the second stage screening can be summarised as follows: 

(1) The PIC's role is to consider the case, having regard to all the materials put before it by the Secretary and any written explanation submitted by the medical practitioner. 

(2) The PIC must determine that either no inquiry shall be held (with the option to issue a letter of advice to the medical practitioner) or that the case be referred to the Council for inquiry. 

(3) The PIC has to consider and, if necessary, further investigate whether the materials placed before it, would justify referral of the case to the Council for inquiry. 

(4) The PIC may examine whether the complaint has any "real prospect of being established", and may themselves conduct preliminary investigation into its prospects, and may refuse to refer to the Council if satisfied that the real prospect is not present. 

The PIC must approach its task with the utmost caution bearing in mind the nature of the procedures where the complainant has no right of access to the medical practitioner's response and the state of the material at that stage.  It is not the PIC's role to resolve any conflicts of evidence.

[viii] Para 123.  The role of the first stage screeners is a narrow one which requires them to filter out complaints which they are satisfied should not proceed further.  For this purpose, he must be satisfied of a negative in that the normal course of the complaint proceeding to the PIC should not be followed.  

As noted by the English cases, wider questions, as to the prospects of success of the complaint, or whether the complaint is acting oppressively, or the justice of the investigation proceeding further, do not lie within the remit of the first stage screeners.  It is not for the first stage screeners to arrogate to themselves the role of the PIC and decide whether the complaint should be referred to the Council for inquiry, still less to arrogate to themselves the role of the PIC and weigh up conflicting evidence or judge the prospects of success.   

[ix] Para 42.  A patient's records are confidential as between him and his doctor.  They are equally confidential as between the patients and the HA: A Health Authority v X [2001] 2 FCR 634 at §31. 

Accordingly, the HA owes a positive duty of confidentiality to protect a patient’s personal details, health information and treatment from disclosure to third parties. 

The obligation of confidentiality arguably survives the death of a patient.  That obligation is one of conscience, not of property: Lewis v Secretary of State for Health [2008] EWHC 2196 (QB) at §§18-30 per Foskett J. 

Article 7 of BORO provides that BORO is binding upon all public authorities and any person acting on behalf of the Government or a public authority, of which HA is one.   Infringement of the right may give rise to remedies against HA under Article 6 of BORO.

(Source: HKMA News May 2018)