School Drug Tests

There is seldom a pilot scheme which receives so much attention and invokes so much discussion.

On 7 July 2009, Chief Executive Donald TSANG announced at his Legislative Council Question and Answer Session that “Secondary schools in Tai Po will be invited to join the pilot scheme for school-based voluntary drug testing.  Voluntary drug testing services at community level will be launched as soon as possible and the Government will study the introduction of hair-testing facilities.”  (from news.gov.hk)

This was followed by various consultation meetings and many opinions had either been expressed at meetings or voiced openly.  The debate was heated up rapidly after an interview of Bishop John TONG Hon appeared in TVB News on July 31.

“Catholic Bishop spoke out against voluntary drug-testing scheme” was the title found in news archive of the TVB website.  In the Cantonese interview, John TONG said that he would not “提倡” drug testing at schools.  In TVB Pearl, the English narrative quoted that “John TONG believed that drug testing is not the answer”.

In a press statement on August 3, the Hong Kong Catholic Social Communications Office denied media reports saying that Bishop John TONG Hon did not support the drug testing scheme.  Mary MA of The Standard wrote on August 6: “Severe tropical storm Goni left Hong Kong pretty well unscathed.  However, the drug-test row between Catholic Church Bishop John TONG Hon and TVB journalist LEE Ka-man has become a storm in a teacup on the media front….  It all began when Bishop TONG made an apparent U-turn on his earlier remark that the church would not support the government's voluntary drug-testing scheme at schools….  In a press statement, the church accused TVB of having distorted TONG's original remarks through editing…  So when the bishop's statement landed in the TVB newsroom, LEE, the assistant news editor who interviewed TONG, hit back with a public response - a move that was out of character and certainly unprecedented….  In her public statement, LEE highlighted the conversation she had on Monday with Dominic YUNG Yuk-yu, director of the local diocese's social communications office.  She said YUNG had told her he did not spot anything wrong with the news broadcast, adding that Bishop TONG also praised it.”

Principal Teresa CHAN Kam Tim of Valtorta College in Tai Po accused TVB of inaccuracy in reporting that she “originally agreed to join the drug scheme,” but now needed to reconsider.  (from The Standard, 6 August, 2009)

Vicar-General Father Michael YEUNG Ming Cheung said "If a student in a school is found to be on drugs, does it mean the other 1,000 students have to be tested?  It is impossible, as it will take lots of time.  But then, when you take 10 to 20 students for testing, the question will be 'why are these students picked?' It will stigmatize these students."  (from The Standard, 3 August, 2009)

On 10 August 2009, Privacy Commissioner for Personal Data, Roderick WOO Bun cast doubt in his letter to Secretary for Education, Michael SUEN Ming Yeung, and aired openly that: "While it is doubtful whether all students have the requisite capacity to give genuine consent, the Personal Data (Privacy) Ordinance does not give parents or guardians the authority to give consent on behalf of a minor."  He added that the situation had to be resolved by new legislation.  (from The Standard, 11 August 2009)

Discussion turned into pointless argument when the Catholic diocese’s Social Communications Office director Dominic YUNG Yuk Yu suggested school principals, teachers, celebrities and government officials to take drug tests with students.  Nevertheless, Undersecretary for Education Kenneth CHEN Wei On said he would take a voluntary drug test if students thought that it was important to them.  (from The Standard, 11 August, 2009)

The following are some of my observations and opinions on this matter:

• There seem not enough consultations.  There also seem not enough channels for people and stake-holders to air their concerns.
• Opinions could be grouped into 5 categories:

1. Emotional expressions and temptations to say something just for the sake of having a say in the subject matter
2. That school drug tests won’t work
3. That there are other better methods
4. Logistic concerns
5. Infringement of rights and privacy of students

• For category 1, they cannot be rationally discussed.

• For category 2, it is difficult to tell for sure that the scheme won’t work.  There are experiences from abroad, but both the culture and school environment are very different from the situation in Hong Kong.  At least theoretically, random drug test can serve deterrent effects on students.  It can provide a chance for parents to openly discuss drug abuse with students when they need to return the consent forms.  The scheme can also provide a good “excuse” for students to refuse offers from student dealers at schools.  And, after all it is only a pilot test to study whether voluntary drug testing at school will work or not.

• For category 3, surely school drug testing is not THE method to solve youth drug abuse.  But there exists no single method which can solve the problem alone.  Young people abuse drugs for different reasons.  It is rational to tackle this problem by adopting different approaches and different methods.

• For logistic concerns, there is always room for improvement.  Some of the fears arise from misunderstanding of the scheme, and some arise out of ignorance of the scheme.  Pilot testing is a good start to smooth out logistic hiccups. 

• They final concern is the real concern, which governs the existence of the scheme.  There needs to be thorough consideration on whether there is infringement on students’ rights and privacy.  If there is, whether what the scheme can achieve warrants the infringement.  If it warrants, how to minimize the harm done?  After all, school is a special environment where a group of minors gather with the objective of learning.  High risk behaviours like drug abuse can be contagious.  Discipline is very important.  

 (Source: HKMA News August 2009)

Honest but mistaken belief

A gentleman was brought to court by the police for practising as a doctor without registration.  Basically, he was a doctor before his name was removed from the General Register by the Medical Council for his failure to pay the annual registration fee.  He was acquitted by the Magistrate Court because the judge found him honestly believed that his name was still on the Register.  Some doctors took this verdict very seriously, to the extent that the mere existence of the Medical Council was challenged.  This was understandable as the main function of the Medical Council is to regulate doctors through the formation of a register and to control the entrance, the staying in, and the removal from the register.  However, the prosecution did not lodge an appeal against the decision.

Essentially, the fact of the case was that the doctor, after practising for around 10 years, failed to renew his annual practising certificate before June 30, 2007.  His name was thus removed from the General Register by the Medical Council in July 2007.  He maintained that he did not receive any letter concerning the notice of payment or his removal from the Register.  He continued to practise until there were some problems with the sick leave certificates issued by him in January 2008.  He contacted the Medical Council and somehow got a false belief that he could continue to practise two weeks after he paid for the fee.  Things turned out that his name was then not on the Register and he only found this out when there was again problem with sick leave certificates issued by him in April 2008.  He stopped practising since then.  By that time the Medical Council had referred his case to the police and he faced charges of practising medicine or surgery while not being registered.  According to S. 28(2) of the Medical Registration Ordinance, he was liable on summary conviction to a fine at level 6 and to imprisonment for 3 years if he was found guilty.

He succeeded in defending his case by the “honest but mistaken belief” defense as in the case Attorney General v Fong Chin Yue and Others ([1994] HKCFI 184; HCMA000604-1994, 25 October 1994).  This case concerned the Dutiable Commodities Ordinance (DOC).  The appeal turned out to be complicated analysis of statues with strict liability, whether there was any defense for such statutes, and the Bill of Rights.  In simple terms, even for statues which appeared to infer strict liability on the defendant, there existed a defense for the accused to show (on a balance of probabilities) that he believed for good and sufficient reason, though erroneously, that the provisions had been complied with.  This was because “to interpret the relevant provisions as requiring proof by the prosecution of knowledge would leave a gap through which the guilty could escape in droves.  At the same time, to interpret those provisions as precluding a defence of reasonable belief would leave a gap through which the innocent may fall to their harm.  By no proper canon of construction can the intention to create either of those gaps be attributed to the Legislature.”  And, “Magistrates will of course approach such defences with fairness and common sense: being neither cynical on the one hand nor gullible on the other hand.  Generally, the less sophisticated an accused and the more humble his position, the less is to be expected from him for the purpose of making out his defence.  And of course the relevant considerations include: the quantity and value of the goods involved; whether the accused gained or stood to gain by offending; the extent of any such gain; and how it compares with what he could earn by honest means.”  So the defendant doctor was acquitted on the defence that he forgot to renew his practising certificate and he honestly believed that he could practise medicine.  There was no motive for him to avoid the payment of only $420 and he had never done it before.

Another interesting provision about honest but mistaken belief is found in Section 4A of the Dangerous Drugs Ordinance.  This section deals with trafficking in purported dangerous drug.  It spells out that it is an offence to traffic, or to offer to traffic, in any substance represented or held out by him to be a dangerous drug but which is not a dangerous drug in fact.  This means that if someone honestly believes that he is in possession with him a certain amount of say ketamine and confesses to the police when caught.  He can be charged under this section of the Dangerous Drugs Ordinance even if the substance eventually turns out to be some harmless substance totally unrelated to ketamine.

Talking about dangerous drugs, the Chief Executive announced during the Legislative Council’s Q&A session on 7 July 2009 that the Government would escalate the campaign to fight the war on youth drug abuse.  He would personally lead the administration and oversee a series of measures including community awareness and mobilization, community support, drug testing, treatment and rehabilitation and law enforcement.  The HKMA has always been in support of beat drugs activities. The recent focus is on the formation and joining of district networks of beat drugs teams comprising family doctors, social workers from Counseling Center for Psychotropic Substance Abusers, school social workers and doctors from different specialties including Substance Abuse Clinics from HA hospitals. We organized a press conference to introduce our work to the mass media on 11 July 2009.  And I shall report our work to the Chief Executive at the Action Committee Against Narcotics (ACAN) special meeting on 16 July 2009.

(Source: HKMA News July 2009)

 

Prisoner of the “stage” ?

June marks the start of hot summer.  It’s usually less busy for clinics.  From June 1 to June 6, I went for an Alpine driving tour.  Our team consisted of ten cars with two instructor cars.  We started driving from Ingolstadt (a town near Munich, Germany) to Oberaudorf (Germany), where we then drove to Kitzbuhel (Austria) via Zell am See (Austria).  From Austria, we drove to Mals (Italy) via Bruneck (Italy) and Meran (Italy).  From Italy, we drove back to Austria via Landeck (Austria) & Lermoos (Austria), and finally back to Munich (Germany) via Neuschwanstein (Germany) and Murnau (Germany).  In this three-day driving tour, I realized that this kind of trip was in fact dangerous.  We were driving on unfamiliar routes with unfamiliar, over-powered cars, under the influence of food, a little bit of alcohol and jet-lag.  It was lucky that no major accidents happened.  Also, I confirmed that I did not need any super car as the speed and control were outside my daily function range.

While I was out of town, I missed a lot of happenings as reported in the newspaper.

Our President be investigated?

Our President, Dr. TSE Hung Hing, was challenged the eligibility for candidature as Elected Member of the Medical Council of Hong Kong.  Dr. TSE was involved in a traffic accident, was charged with careless driving and was fined HK$1,000 in July 2008.  He reported the incident to the Medical Council Secretariat afterwards.  Nevertheless, he failed to declare the case again when submitting the application form for re-election as Council Member in August 2008.  On June 3, Dr. TSE’s accusation of “false declaration” was discussed in the Medical Council Meeting.  Prof. LIEH-MAK, Chairman of MCHK, emphasized that she was handling the case according to law and insisted referring the case to the police for follow-up investigation.  The HKMA Council Members showed their discontent and left, resulting in an early adjournment of the meeting.

In this issue, there are several articles writing on this topic.  I am not going to write on this, but rather to join them by making up a photo to tease our President on the ultra-remote possibility that he would be sent to jail.  In fact the bars are made of chocolate and I guess the prisoner can just free himself by eating his way out.

Youth drug abuse

On June 2, four secondary students (Rosaryhill School, Stubb's Road) were caught taking drugs on the school premises.  The school did not expel the students.  Instead, they were suspended for two weeks.  On June 4, three Form Two teenagers, still dressed in their school uniforms (Tin Shui Wai Pak Kau College), were found unconscious in a park in Tin Yat Estate in Tin Shui Wai.  The boys, aged 14 and 15, were taken to Tuen Mun Hospital and were arrested.  On June 6, two 15-year-old girls were found dazed on the Golden Beach in Tuen Mun.  Together with other two young women, they were arrested on suspicion of taking ketamine.

As a member of the Action Committee Against Narcotics, and based on my experience in dealing with young drug abusers, I would say the above cases are again the tip of an iceberg.  The HKMA is always supporting the government’s anti-drug policy.  We have joined the “Path Builders” youth care initiative, so as to put more focus and effort to the youngsters.  We have co-organized with the Hong Kong Council of Social Service (HKCSS) the Beat Drugs Seminar on March 1 2009 to promote "Team Approach in the Community-based Intervention of Substance Abusers".  Followed by that, we have the “Certificate Course on the Management of Drug Abuse Patients for Family Doctors”.  The Course not only increases the awareness and knowledge of drug abuse, but also encourages family doctors to incorporate the screening and brief intervention processes into their daily practice.  To establish the links and referral services between doctors and NGOs on this subject, the HKMA Community Networks have also been involved.  Coming efforts include the cooperation with the Law Society to produce Beat Drugs Pamphlets for parents and students, and the next Beat Drugs Seminars on “Laboratory Tests on Drug Abuse”.

Teenage girls in court for knife-point taxi robbery

In the early hours of June 1, a gang of three teenage girls aged between 13 and 15, purportedly pulled out knives and robbed a taxi driver of HK$660 and a mobile phone.  The trio got on a taxi from Siu Sai Wan to Kwai Chung Sports Ground.  On arrival, the one in the front pulled out a knife and one of the two in the back put the driver in a headlock.  Having stolen the money and mobile, they fled.  The taxi driver tried to run after the girls, but then he returned to his taxi to give chase.  A passing ambulance crew joined the chase and held two of the girls.  The third girl, who fled the scene on foot, turned herself in to police on the next day.  This news was highly alarming and I suspected that it was related to youth drug abuse also.

June 4^th and Papa Li Tzar Kai

Hosted by Hong Kong Alliance In Support Of Patriotic Democratic Movements of China, a candle-night vigil was held at Victoria Park in Hong Kong on June 4, 2009, to commemorate the 20th anniversary of the Tiananmen Square Massacre.  It was reported that an estimated of 150,000 attended the ceremony, which had a record turnout when compared to the first anniversary held in 1990.  Interestingly, on June 5, the front page of Apple Daily was “李澤楷、梁洛施生仔”.  The outbreak of the news became the hottest topic among most Hong Kong people.  Li Tzar Kai, Richard, and his girlfriend, LEONG Lok Sze, Isabella, gave birth to a boy in Canada on April 26.  Li Ka Shing named the baby “Cheung Chi”, which meant “being self-disciplined”, while Richard and Isabella named him “Ethan”, which means “strong, firm and impetuous”.  Li is always referred to as “superman”.  This time he again used his super power and overshadowed the news of June 4^th in Apple Daily.

(Source: HKMA News June 2009) 

Be Prepared

While we are always warned to maintain high vigilance against Avian Influenza, the world was suddenly hit by a new H1N1 Influenza virus, the Swine Influenza.  Starting 18 March 2009, there were cases of influenza-like illness in the Federal District of Mexico.  The number of cases increased steadily from March to April.  On 23 April 2009, there were more than 854 reported cases, of which 59 died.  Amongst the Mexican cases, 18 were laboratory confirmed in Canada as Swine Influenza A/H1N1.  On 24 April 2009, the United States Government reported 5 confirmed human cases of Swine Influenza A/H1N1 in California and 2 in Texas.  The Swine Influenza A/H1N1 viruses spread quickly to a raft of countries within days.  On 29 April 2009, apart from Mexico and United States, seven more countries officially reported 148 cases of Swine Influenza A/H1N1.  They included Austria, Canada, Germany Israel, New Zealand, Spain and the United Kingdom.  On the same day, Dr Margaret CHAN, Director-General of the World Health Organization, decided to raise the level of influenza pandemic alert from phase 4 to phase 5.

In Hong Kong, the confirmed case involved a 25-year-old Mexican man who stayed in the Metropark Hotel in Wanchai after arriving from Mexico via Shanghai on 30 April 2009.  To safeguard the wellbeing of the community, Dr. LAM Ping Yan, Director of Health, issued an order [under Section 25 of the Prevention and Control of Disease Ordinance (Cap 599)], which required the staff and residents of the Metropark Hotel to be quarantined for a period of seven days.

Luckily, the pandemic seemed to be under control.  However, doctors and citizens alike should be prepared for the worst.  In this issue, our President and Immediate Past President both write on this influenza attack.

Also in newspapers, you might have read about the decisions of the Medical Council recently.  Most of you would focus on the doctor whose name was removed from the General Register for an indefinite period.  The order was also made to take effect immediately upon publication in the Gazette, which was referred to as an “unprecedented move” so as to prevent any delay in the removal.  The charge which caused this heavy sentence was that “between 1997 and 2007, he had inappropriate personal contact with Patient A.”  Medical disciplinary bodies always take very serious views on affairs, especially sexual relations, between doctors and their patients.  Patients are considered vulnerable because they are suffering from illnesses.  They go to their doctors to seek help.  They trust their doctors and are dependent on them. 

Abusing doctor-patient relation amounts to serious professional misconduct.  Psychiatric and paediatric patients are taken even more seriously.

However, another appeal case (CACV 403/2006) might have escaped from your attention.  The doctor was found professional misconduct because she “sanctioned, acquired in or failed to take adequate steps to prevent the appearance of her name, title, photographs and statements in an advertisement in (a newspaper) on (a date), in which she endorsed (products) offered by (a company) with which she had a financial relationship.”  She succeeded in the appeal and the decision was set aside.  Three issues were raised for the appeal:

1. It was wrong for the legal adviser to have been present during the deliberations of the Council and to have been involved in the drafting of the findings.
2. It was unfair to be prosecuted for breach of a norm (that doctors are prohibited from public endorsement or promotion of a commercial brand of … health related products) that had never been articulated.
3. The prohibition was not necessary or out of proportion.

All three judges agreed that the appeal succeeded because of the first issue.  Hon Le Pichon JA pointed out that he did not consider that the other issues had any merit and would have dismissed the appeal but for the first ground.  Hon Stone J in para 88 said, “In my judgment in the factual circumstances of this case this appellant has been fortunate to succeed on this appeal, which, save for the successful procedural point invoked in her favour by her eminent leading counsel, otherwise had little intrinsic merit.”  And he explained this in a very long sentence in para 81, “It must have been as plain as a pikestaff to this lady that the gravamen of the complaint was that she had impermissibly lent the medical credentials of a practising doctor to the health product marketed by her company in what, in my view, was an entirely unsubtle (if not brazen) press ‘Advertorial’, wherein the written and pictorial content of the article in question; nor is this a prescriptive norm of which she possibly could have been unaware, in light of her seniority within a profession which has always endeavoured to restrict approbation of commercial products by practitioners, and frequently has advertised this fact; the further suggestion that this appellant, the managing director of this company, had had no control over what was written in this ‘Advertorial’ in my view was risible.”

The main impact to the profession came from the first issue.  For many years, it had been a practice for the legal advisor to stay with Medical Council members and Assessors during their deliberations and to help drafting written judgments.  Hon Le Pichon JA pointed out in para 16 that “The authorities cited made clear, in no uncertain terms, that communication in any form by a non-member with a tribunal in the absence of the parties would give rise to a perception of unfairness, that justice would not be done inasmuch as the tribunal might have been influenced by what might have been communicated.”  Hon Cheung JA further explained this in para 63, “Article 10 of the Bill of Rights provides that in the determination of, among other things, a person’s rights and obligations in a suit of law, he is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law….  As part of the protection given by Article 10 one would expect a competent, independent and impartial tribunal to, first, deliberate the decision by its own members without the presence of a non-party and, second, to write its own reasoned decision.”

In summary, because of the presence of the legal advisor in the deliberation and his drafting of the judgment, the doctor succeeded in the appeal.  She was not guilty of professional misconduct because the trial was considered not a fair trial.  Then, how about all the other trials?  There were many cases which had been decided with the legal advisor present during deliberations and drafting judgments.  Will they also succeed if they do appeal based on the same reason?  Even the above mentioned doctor, who was removed from the General Register for an indefinite period, might appeal on the same ground.  Of course there will be limitation periods for appeals, and there remains an option of ordering a re-hearing for a series cases that succeed on procedural grounds.  This case is still a huge challenge to the Medical Council.  Please be prepared.

(Source: HKMA News May 2009) 

March, April, May

On 6 March 2009, the announcement of the contamination of a pharmaceutical product, Purinol (manufactured by Europharm Laboratories Company Ltd), marked a spate of drug-related blunders.  The next day, the HKMA advised members to stop using products from the said company until matters had been clarified by the Department of Health (DH).  A similar official advice from DH reached doctors on 10 March.  On 19 March 2009, unlicensed packaging of Amitriptyline tablets by Unipharm Trading Company was reported.  Two batches comprising 4,049 bottles of 25 mg tablets and one batch comprising 285 bottles of 10 mg tablets were recalled from public hospitals, public clinics, private hospitals, private doctors and pharmacies.  On 22 March 2009, two batches of Water for Injections were recalled from the Hospital Authority (HA).  According to initial investigation by the DH, the actual volume found in the two batches of products (ranged from 120 ml to 130 ml) did not match with the declaration of the label of each bottle (100 ml).  On 25 March 2009, during a current drug stock-taking exercise, the HA reported that the expiry dates shown on the labels of a same batch of Propranolol 10 mg tablets supplied by Unipharm Trading Company were different.  It was suspected that the cause of the discrepancy was related to an isolated computer malfunctioning when preparing the labels.  Then, reports concerning unregistered eye drops and other products came out.  More reports on unregistered and defective products are foreseeable.

On 24 March 2009, Mr. Donald TSANG Yam Kuen, the Chief Executive, said that the drug blunders would be taken seriously and investigations would be carried out for various incidents.  A high-level committee chaired by Ms. Sandra LEE Suk Yee, Permanent Secretary for Food and Health (Health), would conduct a comprehensive review of the whole system in a bid to regain public confidence.  It is true that these incidents adversely affect the confidence of citizens (and doctors) in pharmaceutical products and the statutory role of the DH in the control and monitoring of such products.  In this issue, our President and Vice President analyze the drug blunders in the President’s Message and the Forum respectively.

On 4 March 2009, our President and two of our Council Members were elected Chairmen of three Committees of the Medical Council of Hong Kong.  Dr. TSE Hung Hing was elected Chairman of the Ethics Committee.  Dr. CHEUNG Hon Ming was elected Chairman of the Licentiate Committee.  And Dr. CHIU Shing Ping, James, was elected Chairmen of the Health Committee.  Do you know the composition and function of these Committees of the Medical Council?  In the Interview Session of this issue, I invited the above three new Chairmen to introduce themselves and the Committees to our members.  Talking about elections of the Medical Council, one would immediately recall our Immediate Past President appearing in the media.  Dr. CHOI Kin lost in the election for Chairman of the Medical Council.  He again spoke out and provided some heated topics for discussion in the Interview.  

On 12 May 2008, the Great Sichuan Earthquake occurred in Sichuan province of China.  The earthquake had a magnitude of 8.0 Ms, lasting for around 3 minutes.  Official figures revealed that more than 90,000 people in total were dead or missing in the tremor.  It has been nearly one year’s time after the catastrophe.  Apart from the Hong Kong Medical Association Charitable Foundation’s hard work in emergency appeal, we do have great concerns about the recovery and redevelopment of the areas.  The 11^th Beijing/Hong Kong Medical Exchange will therefore be held in Chengdu, Sichuan instead of Beijing on 24 & 25 October 2009.  The main theme of the Meeting is “Rehabilitation after Disaster”, featuring aspects like orthopedic rehabilitation, rehabilitation of amputees, rehabilitation of spinal cord injuries, psychological rehabilitation etc.  A half-day visit will also be arranged for examining the ruins of earthquake and related medical institutions.  For details, please look out further announcement from the Secretariat.

On 24 May 2009, the Certificate Course on the Management of Drug Abuse Patients for Family Doctors will begin. It is funded by the Beat Drugs Fund Special Funding Scheme.  The objective of the Certificate Course is to increase family doctors’ interests, awareness and knowledge on the problems of drug abuse.  Most importantly, it aims at empowering family doctors to lead the management of young drug abusers in a team approach.  There will be an increasing need for trained personnel when the public become more aware of the youth drug abuse problem and the practice of drug testing is promoted in schools (many of the schools start adopting the drug testing practice).  As this Certificate Course will be a one-off programme, do not miss the chance.  Please kindly find attached circular for more details and enrollment.   

(Source: HKMA News April 2009)

Youth Drug Abuse

On February 27, 2009, five Form 2 school girls from Sheung Shui Government Secondary School fell ill in school after taking katamine during lunch time and were sent to hospital.  Two fifteen-year-old boys, who were suspected to provide the students with ketamine, were charged with trafficking in a dangerous drug.

As a Hong Kong citizen, I read in newspaper news related to youth drug abuse nearly every day.

As a member of the Action Committee Against Narcotics (ACAN), at every meeting I face statistics showing a continuously rising trend of young people abusing drugs including ketamine.

As a doctor joining the Project Mac (a pilot project of the ACAN to help young drug abusers by providing body check-ups and motivational interviews with doctors), I meet many teenagers who started their first abuse before the age of 12.  Many of them do not attend school, do not work, and are in debt because of regular drug abusing.

As a family doctor, I now and then encounter teenage patients with drug abuse problems in my daily practice. Some of them come for sick leave, the other come for symptomatic relief.  However, some of them do come to ask for help.  I was very sad to see a university student who developed psychosis after taking Ecstasy in several occasions in Karaoke because of peer pressure from classmates.

I believe that doctors can help young dug abusers.  We can do it as an individual doctor by increasing our alertness in screening and identification; and by sharpening our knowledge and technique in intervention.  The HKMA can take the leading role in organizing seminars and forming district networks.  In cooperation with the ACAN, we are organizing a Certificate Course on the Management of Drug Abuse Patients for Family Doctors.  There will be eight sessions of seminars and discussions, together with the formation of supporting networks between our Community Network and local NGOs.

The government also has set up the Task Force on Youth Drug Abuse to review current anti-drug measures, to spearhead cross-bureaux and inter-departmental efforts, and to enhance collaboration among NGOs, stakeholders and the community, with a view to identifying areas of focus and improvement.  I have invited the Chairman of the Task Force, Mr. WONG Yan Lung, SC, JP, Secretary for Justice, for an interview.  He shared with us the work of the Task Force and discussed how doctors and HKMA could fit in the battle against drug abuse.

Talking about legal matters, on March 2, 2009, the judgment handed down from the Court of Final Appeal with respect to the case of Frank Yu Yu Kai and Chan Chi Keung (FACV No. 11 of 2008) left some doctors, especially anesthetists, feeling uneasy.  The case concerned the claimant suing the defendant (an anesthetist) for clinical negligence because of radial nerve injury after radical prostatectomy.  The claimant failed in the High Court (HCPI 230/2004) but succeeded in the Court of Appeal (CACV 433/2006).  The anesthetist lodged an appeal to the Court of Final Appeal and the judges (by a ratio of 4:1) found that the burden of proof fell on the anesthetist (who was the defendant in the claim) to proof that he had discharge his duty of care to the patient and to explain why the radial nerve injury happened.  They found that the anesthetist failed to do so.  He was found negligent and therefore had to pay damage to the patient.

The gist of the case hinged on the maxim “res ipsa loquitur”, which is a Latin phrase meaning “the thing speaks for itself”.  In a clinical negligence case, the claimant has to prove that the defendant has breached his duty of care owed to the claimant, and causing damage to him which is not too remote.  The most difficult part is the proof of causation.  “Res ipsa loquitur” concerns causation and a classical description can be found in Scott v London and St Katherine Docks Co[1]: “where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that he accident arose from want of care.”  It is said that when this maxim is successfully invoked by the claimant, it can have the effect of shifting the burden of proof from the claimant and the defendant has to prove that he is not acting negligently in causing the damage.

But what was the problem here?  Quoting Mr. Justice Litton NPJ, the only dissenting judge, at para 133: “The event or ‘thing’ must be so clear-cut that a court can say with assurance: Unless the defendant can come forward with some credible explanation, it must be concluded that want of care produced that result.  As stated in Clerk & Lindsell on Torts [19^th ed.] para. 8-152, common experience suggests that in the absence of negligence, bales of sugar do not usually fall from hoists, barrels do not fall from warehouse windows, cranes do not collapse, trains do not collide and stones are not found in buns.  In the medical context because of the complexity of the human body and the fact that medical science is perpetually evolving and changing, things are seldom so clear-cut.”

However, the majority view, as given by Mr. Justice Ribeiro PJ, was that: “.…(Res ipsa loquitur) is an approach whereby, in cases where the plaintiff is unable to say exactly how his injury was caused but, consonant with his duty of care, one may expect that defendant to know, one asks whether the evidence has raised a prima facie case against the defendant and if it has, whether the defendant has, at the end of the day, dispelled that prima facie case by providing a plausible explanation for the plaintiff’s injury which consistent with the absence of negligence of his part.” (para 43)  He considered that this approach was also applicable in medical negligence case because the well recognized purpose of the rule was “to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant.” (para 45)

How about the scope of the decision?  Does it apply to all medical negligence cases?  Mr. Justice Ribeiro PJ said, “Although the approach will not be important in medical negligence cases where the issues of causation and negligence are wholly fought out on competing evidence, it seems to me obvious that in a significant number of such cases -particularly where the patient is unconscious when the injury is incurred- the res ipsa loquitur or prima facie case approach will be indispensable.” (para 46)  Thus this decision might affect many medical negligence cases concerning procedures under anesthesia.

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[1] (1865) 3 H&C 596 at p 601; 159 ER 665 at p 667

 (Source: HKMA News March 2009)

恭喜發財！

In January, we had the Chinese New Year.  I would like to wish everyone a prosperous year of Ox.  Apart from lion dance, another ritual was the worshiping of Che Kung (車公) on the second day of the New Year.  On January 27, Mr. LAU Wong Fat, Chairman of Heung Yee Kuk, drew a fortune stick for Hong Kong at the Che Kung Temple in Shatin.  It read:

君不須防人不肖 眼前鬼卒皆為妖

秦王徒把長城築 禍去禍來因自招

The unlucky fortune stick No. 27 was about the story of Qin Shihuang (秦始皇).  It said that there was no need to be aware of misbehaved people, because those serving you could all be considered evil.  Emperor Qin failed to protect his Empire by building the Great Wall, because it was himself who caused the Empire’s downfall.

Che Kung was a great generalissimo of the Song Dynasty (宋朝).  He was worshipped in Hong Kong mainly because of his act as a doctor.  He was famous for removing epidemics in Sai Kung and for curing people.  It would be interesting to look at the fortune stick from the viewpoint of a medical practitioner.

The first two sentences reminded me of the handling of patients with infectious diseases and the collection of specimens.  In the 1980s, blood samples from patients known to have HIV or hepatitis B were tagged with red labels to alert handlers of the infectious nature.  Then starting from the 1990s, this practice was stopped.  The reasons behind were mainly that all specimens should be handled with care for the potentially infectious nature, and that privacy of patients should be respected.  I think this attitude should also be adopted by leaders.  Advices and proposals should be handled with care and assessed by objective means no matter by whom the advices are given.  While doctors and laboratory technicians are protected by gloves and gowns, leaders should be protected by the general principles of “doing no harm”, “doing good” and “being evidence-based”.

In February (starting Feb 9, 2009), police officers in uniform can require a person who is driving or attempting to drive a vehicle on a road to conduct a breath test without the need for reasonable suspicion.  The Road Traffic Legislation (Amendment) Ordinance 2008 (No. 23 of 2008) had been passed to amend the Road Traffic Ordinance, the Road Traffic (Driving Licences) Regulations and other subsidiary legislation under that Ordinance and the Road Traffic (Driving-offence Points) Ordinance so as to - 

• (a) increase the term of imprisonment of the offence of causing death by dangerous driving under section 36 of the Road Traffic Ordinance from maximum of 5 years to 10 years;
• (b) increase the penalties on offences under sections 39, 39A, 39B and 39C of the Road Traffic Ordinance (disqualification from driving for not less than 3 months on first conviction and not less than 2 year on second and subsequent convictions), and provide police officers with a general power to conduct screening breath tests;
• (c) introduce a pre-screening device for the purposes of the new section 39B(1)(a) of the Road Traffic Ordinance; 
• (d) provide that certain traffic offenders are required to attend driving improvement courses; 
• (e) extend the probationary driving licence scheme to novice drivers of private cars and light goods vehicles; 
• (f) provide for the review by a Transport Tribunal of certain decisions made by the Commissioner for Transport to refuse to issue, reissue or renew driving licences or driving instructor's licences or to cancel those licences; and 
• (g) make related, consequential and other minor amendments. 

(The Government of the Hong Kong Special Administrative Region Gazette, Legal Supplement No. 1 to No. 27, Vol. 12, 4 July 2008, pp. A961-A1059)

An interesting document to compare was the “Review of Drink Driving Legislation” by the Panel on Transportation of the Provisional Legislative Council in January 1998.:

“The Administration maintains its view that random testing should not be introduced at this stage due to the following reasons: 

1. the setting up of road blocks for random testing causes further congestion to our busy roads;
2. substantial additional Police resources will be required (additional capital and recurrent cost are estimated to be $2.4 million and $20 million respectively); and
3. the legal advice that although it is debatable whether the practice involves an interference with privacy within the meaning of the Bill of Rights and therefore should not be ruled out completely on human rights grounds, the introduction should only be seriously considered if there is clear evidence, which there is none, that the current drink driving laws are not proving effective.”

Doctors need to be alerted about this recent change, as this may be related to professional misconduct and may endanger our registration.  Section 27 of the Code of Professional Conduct 2009 concerns criminal conviction.  S.27.1 reads: “A doctor convicted of any offence punishable by imprisonment is liable to disciplinary proceedings of the Medical Council, regardless of whether he is sentenced to imprisonment.  A conviction in itself will invoke the Council’s disciplinary procedure even if the offence does not involve professional misconduct.  However, the Council may decide not to hold an inquiry where the conviction has no bearing on the doctor’s practice as a registered medical practitioner.”  And s.27.2 reads: “A particularly serious view will likely be taken in respect of offences involving dishonesty (e.g. obtaining money or goods by deception, forgery, fraud, theft), indecent behaviour or violence.  Offences which may affect a doctor’s fitness to practise (e.g. alcohol or drug related offences) will also be of particular concern to the Council.”  Section 11 of the Code concerns abuse of alcohol and drugs.  S.11.1 reads: “Convictions for offences arising from drunkenness or abuse of alcohol or drugs (such as driving under the influence of alcohol or drugs) are likely to be regarded as professional misconduct.”

(Source: HKMA News February 2009)