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.
_____________________
[ii] Comparison Results:
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CAP
161 MEDICAL REGISTRATION ORDINANCE Section 20S Preliminary Investigation
Committee
s20S-19970630.html
(19970630)
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CAP
161 MEDICAL REGISTRATION ORDINANCE Section 20S
Preliminary
Investigation Committee
s20S.html
(Current Version)
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Line(s) 9-10:
Caution : This is a past version. See the current version for the
latest position.
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Changed Line(s) 9:
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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.
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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)
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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.
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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)
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Line(s) 16:
(3) At a meeting of the Preliminary Investigation Committee, the
chairman or, in his absence, the deputy chairman, shall preside.
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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)
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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.
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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)
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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.
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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)
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Line(s) 41:
URL: http://www.hklii.hk/eng/hk/legis/ord/161/s20S-19970630.html
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Changed Line(s) 44:
URL: http://www.hklii.hk/eng/hk/legis/ord/161/s20S.html
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[iii]
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CAP
161 MEDICAL REGISTRATION ORDINANCE Section 20T
Functions
of Preliminary Investigation Committee and its chairman
s20T-19970630.html
(19970630)
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CAP
161 MEDICAL REGISTRATION ORDINANCE Section 20T
Functions
of Preliminary Investigation Committee and its chairman
s20T.html
(Current Version)
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|
Line(s) 9-10:
Caution : This is a past version. See the current version for the
latest position.
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Changed Line(s) 9:
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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.
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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.
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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.
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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.
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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.
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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)
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Line(s) 37:
URL: http://www.hklii.hk/eng/hk/legis/ord/161/s20T-19970630.html
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Changed Line(s) 39:
URL: http://www.hklii.hk/eng/hk/legis/ord/161/s20T.html
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[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.
(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.
[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:
(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)
