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:
- Large quantities of dangerous drugs were involved.
- The council found the defendant doctor dishonourable.
- The decision departed from its precedent cases.
- 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)
