Judgment

Congratulations to the HKMA Badminton Team.  HKMA was the first runner-up in this year's Joint Professional Badminton Competition.  While watching the games, I thought of the old days when we needed to be linesmen in the inter-school badminton competitions.  In fact due to the constraints and resources, members from opposing teams had to take turns to be umpires and linesmen.  Arguments sometimes arose.  It was the transient recall of such moments that made my mind drift to think about judgments.

In fact this month was also characterized by arguments arising from different judgments.  On August 18, the HKU Centenary Ceremony turned out to be the focus of heated debate and protest.  There was even a chapter found in Wikipedia captioned "Hong Kong 818 incident".  It wrote: "The Hong Kong 818 incident was a case of alleged civil rights violations that occurred on 18 August, 2011 at Hong Kong University during a visit by Li Keqiang, the Vice Premier of the People's Republic of China.  His arrival at the school led to a lock-down and complete takeover of the school by the Hong Kong Police force.  Controversy arose as a result of claims by the media and students that their rights had been violated."  The argument and judgment were between security and human rights.  Then another minor argument arose from the "complete rubbish" judgment of Mr. Henry TANG on the argument of whether the government violated people's rights in the above incident.

On September 2, the league of Social Democrats activists were acquitted of disorderly conduct charges over protest in which Mr. Donald TSANG said he was struck on the chest.  This happened during a protest outside the Hong Kong Museum of History on March 1.  On the same day, September 2, the second of the two Legco by-election public consultation forums was gatecrashed by protesters.  Mr. Stephen LAM and others had to flee backstage.  Some claimed injured in the event.

On August 22, a High Court judge started hearing arguments in the landmark case filed by a Filipino domestic worker, who had challenged a legal provision denying permanent residency to hundreds of thousands of foreign maids in Hong Kong.  On June 8, in a split decision, the Court of Final Appeal of Hong Kong determined that a sovereign nation could not be sued in the Hong Kong courts.  The matter was then referred to the China's National People's Congress Standing Committee in Beijing.  On August 26, the NPC Standing Committee unanimously affirmed the decision and declared that companies could not sue sovereign states to recover assets.  On September 2, Mr. Steven CHAN, TVB General Manager, was found not guilty of all charges against him on wrongfully concealing from TVB payment he received and on cheating five TVB artists.

Don't think that making judgment is easy.  Even professionals like judges would be biased.  Concerning the domestic helpers case mentioned above, the Secretary for Justice had to issue a statement to urge the public that: "when they are minded to express any view, to show the greatest respect to our Court and our legal system, and to avoid as far as possible making any comments which might prejudice or affect the Court's adjudication of the case.  This would enable our Court to make its decision fairly and independently, in accordance with the law and admissible evidence, and thereby safeguard judicial independence and the rule of law in Hong Kong."

All these complicated judgments contrasted the judgments made by a linesman.  However, going back to the old days and the simple job of a linesman, the simple judgment is not as simple as it appears upon analysis.  First of all, the rules governing the judgment of "in" and "out" need to be clear.  For example, a shuttlecock falling partially on the line is regarded an "in".  Second, environmental factors count.  For example, is the line drawn properly?  Is it solid and equal without getting blurred or peeling off from wear and tear?  Third come the basic functions of the observer, i.e., the linesman.  He needs to have reasonably good eye-sight.  He needs to be able to concentrate on the lines while he may wish to watch the magnificent match.  He also needs to capture the split-second when the shuttlecock falls on the ground and to relay this signal to his brain to make the judgment.  Last come the higher functions of the judge, i.e., the linesman.  Human is distinguished from machine in that human can think and can be biased by emotion and over-riding thoughts.  The linesman can be eager to see his home team winning.  He may thus either intentionally or unintentionally call a wrong judgment.  It may be so corrupted that someone else is "buying" the linesman to make biased judgments.  In some cases, which might be much more common than we can think of, the lineman himself is running his higher functions to the extreme of human ability.  He second-guesses and analyses what others, especially those powerful ones, would like to see the results to be.  He is ready to make bogus calls either to avoid the slightest possibility of upsetting the powerful, or to wait for the rare chance to let the powerful know that he is doing whatever to appease them.

It is this higher function of the judgment maker, when applies inappropriately, that causes many of the problems in judgment.

(Source: HKMA News September 2011)

Self castration

Before you misunderstand me, I would like to point out that I referred to a Medical Council decision in 2009, which deprived the Council itself of the power to review a decision or an order made in an inquiry.

All these thoughts came from reading the breaking news of the Medical Council inquiries in July this year.  On July 13, the former Dean of the Faculty of Medicine of the University of Hong Kong was found guilty of the charge as being convicted of an offence punishable with imprisonment, namely, Misconduct in Public Office.  His named was ordered to be removed from the General Register for a period of 9 months.  What I am going to discuss is totally irrelevant to the substance of the case.  What follows is an analysis of the appeal mechanism and mechanism to review an apparently wrong decision in a Medical Council disciplinary inquiry.

Comments and public opinions on the sentencing of the above case varied.  Some thought that it was overtly lenient; some said that it was exceptionally harsh.  It all depended.  Although Buddhist teachings favour not to go into extremes, legal teachings do like to stretch into extremes.  It is believed that the facts would normally lie somewhere between the two extremes.  So let us take a look into the two extremes in the sentencing of this case, or in fact any case.

In an inquiry, decision can be made by the votes of as few as three not-legally-trained panel members, including doctors and lay members.  As with any other procedures, errors can occur.  The defendant doctor can be found guilty and then sentenced unduly harsh, such as being removed from the General Register for good.  On the other extreme, the defendant doctor can be found not guilty, or if found guilty, be sentenced exceedingly lenient, such as being issued a warning letter.

A good system should have mechanisms to take care of errors.  These can be found in the Medical Registration Ordinance (MRO).  By Section 21 (5) and Section 26, if a defendant doctor is aggrieved by the decision, he can make an appeal to the Court of Appeal within one month.  A similar provision for the prosecution counterpart is found in Section 21 (4B), which reads:

“Within 14 days after the conclusion of an inquiry under this section, the Council may, of its own initiative but not otherwise, review any decision or order made in the inquiry.”

Everything seemed neat and logical, not until 2009.  For a case concerning laboratory tests and “rebate in disguise” (a misnomer), a significant number of Medical Council Members wrote to the Chairman to ask for a review of the decision because of the concern from many doctors.  What happened dramatically was that from legal advice, the word “Council” in Section 21 (4B) was interpreted to mean the disciplinary inquiry panel.  So there was no place for the Medical Council in reviewing that case, or any other case in the future.  Sorry, case closed.  No review.  And no more discussion.  (Details of this case can be found in my blog at http://cm-mc-articles.blogspot.hk/ where my previous articles related to the Medical Council are collected.)

There could not be more absurd interpretation of the said provision and the meaning of the word “Council”.  I found it difficult to argue because the meaning was so clearly and plainly spelt out in Section 21 (4B).  What else could be said?  Maybe just for the sake of argument, I should try to point out the obvious.  The word “Council” starts with a capital letter and is clearly defined in Section 2 of the MRO.  If you go to the on-line version, a click at the word “Council” of Section 21 (4B) will automatically divert you to the definition in Section 2, giving the meaning of the full Council of 28 members.  How come the Council would vanish and be replaced by a particular inquiry panel whenever a review was in concern?  How come an inquiry panel would out of nothing and suddenly come to an idea of reviewing its own decision just in a short period of 14 days?  One should also know that the inquiry panel in effect functionally ceases to exist after the inquiry.  There is no regular meeting for the members.  They may not see each other anymore for a long period of time.  There is no occasion or mechanism for them to discuss their decision.  So, where is the inquiry panel?  Who can initiate a review “of its own initiative but not otherwise”?  

Too much for the redundancy.  What had happened was that the Medical Council deprived itself of the important power to review a decision or an order if there was an error.  Take the above case as an example.  For one extreme, the defendant doctor could be, for some unknown reasons, sentenced a warning letter.  This would be considered far too lenient by most people.  Public opinions might boil.  However, there would be no remedy.  Of course the defendant doctor would not lodge an appeal.  And I doubted very much the Medical Council could apply for a Judicial Review against its own decision.  Again, “protection of the public” turns into a mocking slogan.

As doctors, we understand that sometime mutilating surgeries are needed to save lives.  However, we also know that self-mutilation is usually a sign for an underlying illness.  

(Probably too much for the “unbearable heaviness of Medical Council".  For debriefing, you can turn to read how Eve Lai links Mae West with cinema food.  And, by the way, she probably does not realize that once upon a time, I was called Kenny.) 

(Source: HKMA News August 2011)

I smell hatred

 

It was quite strange that I smelt hatred when I read the judgment handed down by the Court of Appeal on 13 June 2011 (CACV 50/2010).  It was just a gut feeling.  It might not be fair to call it hatred, but certainly there was strong emotion.  It was another steroid case.

The case concerned a doctor injected local steroid into a patient’s hand.  He was then charged with giving steroid injections to the patient without proper explanation and informed consent.  He was found guilty of misconduct and was removed from the General Register for two months.

At the Medical Council Inquiry, the doctor maintained that he had explained to the patient about the nature of the injections as激素 (Cortisone).  The dosage had also been explained.  He did so in accordance with his standard protocol concerning steroid injections.  He, however, had not explained the side-effects to the patient as he considered that there would not be any side-effect for the dosage used.

On the other hand, the patient claimed that there had never been any explanation about the injections by the doctor or his clinic assistant.  Because of trust, she did not question the content of the injections.

This was the common scenario of choosing who to believe by their credibility.  The Inquiry Panel preferred the evidence of the patient and found the doctor guilty.  On sentencing, the following was stated: “If the case had involved only a failure to inform the patient the nature and side effects of the steroid injections, it would have been treated as a less serious case.  We are of the view that the Defendant knows the difference between ‘類固醇’ and ‘激素’ which is blatantly obvious from the Dictionary which he quoted to us.  As such the case involves concealment of the nature of the injections and the failure to inform the patient in the face of direct inquiry.  It is a serious ethical issue to mislead patients as a high degree of trust is reposed by members of the public on the profession.  The Council must send a clear message to the profession that the Council will not tolerate such misleading acts.”

The doctor appealed on several grounds.  His attack on the primary finding succeeded.  The Court of Appeal found that “the Council had misdirected itself as to the effect of certain evidence which it understood to support its conclusion.”  A re-trial was ordered.  The findings and sentence were set aside and the matter remitted to a fresh inquiry before a differently constituted Inquiry Panel.

What I looked into more was the part of appeal on sentencing, which I suspected arousing my gut feeling.  The Inquiry Panel preferred the evidence of the patient and believed it was the fact that the doctor had never explained anything to the patient.  Thus, It was unfair and wrong to turn around and say that the doctor try to use other terms to mislead the patient, as there was actually no explanation at all.  (Where was the legal advisor?)

Put aside this illogic, it was also premature to make inference just on the terminology of “類固醇” against “激素”.  The Court of Appeal commented: “Although the appellant had given evidence to explain why he used the term “Cortisone, 激素 [Kik So]” to the Patient, he was not responding to an allegation that he deliberately chose an expression which he knew to be incorrect in order to obfuscate and to mislead the Patient.  The additional evidence he sought to adduce on appeal would be relevant to the appellant’s state of mind and the issue if he honestly believed the expression he used was justified so there was no deliberate and dishonest attempt to mislead.  The finding of deliberate concealment, an attempt to obfuscate and to mislead the Patient in paragraphs 17, 31 and 32 cannot stand.”

It appeared as if it was sinful itself by using steroids.  You must use the designated Chinese name (but when was it formally announced?), or else you were likely to have a wicked intention of misleading your patient.  So the doctor needed to be punished heavily and an important message had to be sent to the profession and the public.  I felt the emotion here.  Knowing that steroid injection was one of the recognized and recommended treatments, what would the doctor be trying to lure the patient into?  To me, the term “激素” is in fact a worse term in meaning than “類固醇”, which appears more neutral.  I have the impression that “激素” has been used to referred to substances for stimulation of growth in chickens and pigs.

I think all these recent steroid cases indicate that the Medical Council is going into an extreme of making steroid a taboo.  Information which might not be beneficial to the public has been sent out.  The above case in particular pictured a doctor trying to mislead his patient to use this sinful medicine (which actually might be the preferred treatment with minimal side-effects).

The appeal was allowed.  Let’s wait for the re-trial.

(Source: HKMA News July 2011)

A peep at my diary

May 26, not very busy, just finished reading “The Silent Counsel”.

Everyone is talking about the HA open announcement of “service resident positions for experience doctors without full registration”.  It is quite strange that it acts so high profile.  Is it exerting pressure on the Medical Council by public voices?  Would such act undermine the spirit of professional self regulation?  Afterall is this a smart move?  If a CEO of a company muddles with a statute and then finally gets mess-up, would the board be satisfied that it is the court to blame?  Well, I don’t know.  In the Mappo stage of the cosmic cycle, common sense does not apply and anything can happen.  Maybe HA can then divert the blame to the Medical Council.

As a member of the MC, I do feel the pressure here.  Of course I am not feeling the pressure to appease the public.  This is the advantage of aiming, and being no body to the public.  But as a legally trained member, I do feel the pressure to make the right decision when faced with such applications, though I seriously doubt whether there will be any.  My decision would depend on the relevant statutes.

Medical Registration Ordinance

14A. Limited Registration

(1) The Council, having regard to any representations made to it, may determine and promulgate from time to time the employment or type of employment in respect of which limited registration is appropriate or necessary.

(2) Subject to subsection (2A), where a person satisfies the Council-

• (a) that he has been selected for employment or for a type of employment determined and promulgated by the Council under subsection (1);
• (b) that he has obtained an acceptable overseas qualification;
• (c) that he has had adequate and relevant full-time post-qualification clinical experience;
• (d) that he is registered with an approved medical authority outside Hong Kong; and
• (e) that he is of good character, he shall, if the Council so directs, be registered as a medical practitioner with limited registration.

(3) The limits of a person's registration under this section shall be defined in the direction under subsection (2) or (2A) by specifying-

• (a) a period, not exceeding 1 year, as the period for which the registration is to have effect;
• (b) the employment or type of employment for the purposes of which the registration has effect; and
• (c) restrictions and conditions regarding the practice of a medical practitioner with limited registration, if any, as specified by the Council, and such registration shall have effect for the period and for the purposes of the employment or type of employment specified in the direction.

(4) The Council may refuse an application for limited registration or renewal of such registration if it is satisfied that-

• (a) the requirements of subsection (2) have not been complied with; or
• (b) the employment or type of employment to which the application relates is one in respect of which limited registration is no longer appropriate or necessary; or
• (c) it is reasonable in all the circumstances to do so.

Promulgation No. 2

Pursuant to section 14A of the Medical Registration Ordinance, Chapter 161, Laws of Hong Kong, the Medical Council of Hong Kong has determined that, until such time as the Council may otherwise determine, the following types of full-time employment are appropriate and necessary for limited registration for the purpose of the Ordinance:-

• (a) Employment as a medical practitioner by the Government for the purpose of research work or for such clinical practice of medicine or special health care services, as specified by the Director of Health;

• (b) Employment as a medical practitioner by the Hospital Authority for the purpose of research work or for such clinical practice of medicine or hospital work, as specified by the Authority;

• (c) Employment as a medical practitioner by the University of Hong Kong or the Chinese University of Hong Kong for the purpose of teaching, research, or performing hospital work, in the Faculty of Medicine; provided that those medical practitioners so registered cannot practise outside their employment mentioned respectively in (a) or (b) or (c) above.

Once again, statutes are not for ordinary people.  Can an average doctor locate the relevant ordinance, the relevant sections and the relevant promulgation to try to understand what is going on?  Basically the MRO gives power to MC to allow for employment of qualified doctors under limited registration.  This is against the full registration category by limitations of the time of less than one year and whatever limitations the MC finds necessary to impose.  The most common one is the doctor with limited registration cannot go into private practice and can only work in conditions specified by the employer.  HA is now making use of one of the categories promulgated by the MC, known as Promulgation No. 2, which allows the HA, the Director of Health and the 2 Universities to apply for full time employment for limited registration.

After studying the statutes with the three different cannons of statute interpretation, I come up with the following guidance to myself:

• The decision here is not whether Hong Kong needs more doctors, or whether HA needs some doctors abroad.  It is whether MRO s14A and Promulgation No. 2 are the correct mechanisms for such applications.

• Limited registration is meant for special circumstances.  It is a short term measure.  Therefore the time limit is set for not exceeding one year.  It is specified that during renewal, the need and appropriateness need to be assessed again.

• Using this route to solve long term or structural manpower problem is inappropriate.

• Although in Promulgation No. 2, it seems that HA can apply with whatever reasons it comes up with, the gist of the decision of whether such application will be allowed lies with subsection 4 of section 14A of the MRO.

• It should be noted that there is a subsection specifically spelling out when the application may be refused.  In consideration of an application, one needs to actively go through reasons for refusal as stated.

• 4(b) points out that the application should be necessary AND appropriate.  Note that “or” is used in the statute.  But this double negative is tricky.  It means that the supplication can be refused if one of the conditions no longer exists.  That means both are needed.

• A responsible member needs to look into whether the need is a real one.  Over expansion and poor manpower management can hardly be a real need.  Using a temporary measure for structural human resource planning is inappropriate.

• 4(c) is interesting.  The Council may refuse an application if it is satisfied that it is reasonable in all the circumstances to do so.  It confirms that the Council is expected to look at the whole picture with wide consideration of all circumstances.  It is certainly not just restricted to reasons and information stated in the application.  The Council does not need to act perfect.  It is expected to act reasonable.  What is reasonable is common sense, particularly that of the profession.

• Wooooh!  It is not easy to decide on an application for limited registration.  Hopefully, I don’t need to face many, or any.  But after working through the statutes, I feel no more the pressure.  I need to go to bed in a mindful manner. 

(Source: HKMA News June 2011)

The Mappo Theory

My pessimistic mode of function continues into this month.  There are so many happenings that I don’t like them, that I don’t think they should happen, proceed or be handled in these ways.  However, I can do nothing about them.  At least, I perceive in this pessimistic mode of function that I can do nothing about them.  There are natural calamities with earthquake and radiation hazards.  The situation in HK public hospitals is chaotic.  The government response to this chaotic situation is itself chaotic, with the intention of making the situation more chaotic.  The Statutory Minimum Wage became effective since May 1.  This first step to “big-pan-rice” situation is tightly followed by the eager declaration to fight for maximum working hours and the universal retirement protection scheme.  Seemingly lesson is not learnt from the Mandatory Provident Fund that proved to drain incomes from workers and employers towards fund management companies.  The construction of the Hong Kong-Zhuhai-Macau-Bridge was (again) called to a halt from challenge of the Environmental Impact Assessment report in court.  The killing of an alleged criminal without trial was applauded by many.  Those formally declare that they are organizing revolutions and activities to overthrow an existing government which accounts for the prosperity of the country are given unconditioned credits.

All these make me think of the Mappo Theory.  The Mappo Theory literally spells out a period of the ending of true teaching.  It is the third, which is also the last, period of the cosmic cycle when there is degeneration of true teachings of the Buddha.  The three stages are: the “true dharma”, the “semblance dharma”, and the “end of dharma”.  According to the theory of cosmic cycles, the three stages are differentiated by three qualities: the dharma (teaching), its practice, and its realization leading to enlightenment.  In the first stage of the true dharma, all three qualities are present.  The dharma is valued and people practice it and get enlightened.  In the second stage of the semblance dharma, owing to worldly corruption, Buddhists go through the motions of practice but do not benefit from them.  In the final stage of Mappo, though some Buddhists might claim to be practicing Buddhism, they do not even go through the motions correctly.  During that period, there are more frequent natural disasters.  There is corruption and deterioration of moral value and discipline among the Buddhist Sangha.  There is a general lack of understanding and lack of practice of true dharma.

Mappo was referred to as Mo-fa in China.  It was a central motif of the major doctrinal schools of the Sui and Tang, and reappeared in sectarian religious literature from the Ming to the present.  Perhaps more than any other theme, the "decline of the Dharma" had fired the imagination of prophets and visionaries throughout the history of Chinese Buddhism.

The Mappo Theory has been ascribed to account for the changes in Buddhism in Japan around the period of the twelve and thirteenth centuries.  In a sense, the Mappo Theory served as a selection ground for the modification of Japanese Buddhism at that period.  There were different interpretations and reactions.  Only those suited the spiritual needs of the people flourished.  Among the changes, three were more prominent.  First, there was more emphasis on the reliance on “other power”.  Second, Buddhist teachings spread to the peasants.  Third, there was a rise of important forms of Japanese Buddhism which remained popular until nowadays.  The prominent and important ones are the schools of Pure Land, Nichiren-she and Zen.

Of course I do not take this Mappo Theory too seriously.  Instead I would like to point out that there is an interesting paradox here.  If the Mappo Theory holds true, the teachings and schools that become popular at the Mappo Period are unlikely to be true dharma.  This is because there is degeneration of morality of the Sangha and the laity.  The socioeconomic situations and the dissatisfactions towards the Buddhist Sangha provide a ground for natural selection on various teachings preached and promoted.  What have been selected by the majority and gained popularity will thus unlikely to be the true dharma.

Are we now in the Mappo period?  Has true teaching been abandoned and replaced by counterfeit doctrines?  Are those selected by the majority by definition not true teachings?  Shall I chant more and wait for a new Buddha to save us?

(Source: HKMA News May 2011)

Yes, you need to explain to your patients whenever you prescribe steroids (though I do not agree).

Important message 

The important message here is that unless you are ready to go to the Court of Final Appeal, it is highly likely that you will be found professional misconduct if you get complaint by your patient for giving steroids without voluntary notification and explanation to the extent that he can make an informed choice. 

The judgment from the Court of Appeal 

A paediatrician was found guilty of professional misconduct in 2008 for three charges:

1. without proper justifications, he prescribed to the patient Celestamine which contained steroid for treating the patient’s upper respiratory tract infection on about 26 occasions;
2. he prescribed to the patient Celestamine which contained steroid without advising the patient’s parent about the nature and side effects of Celestamine;
3. upon enquiry of the patient’s father on whether Celestamine contained steroid, he did not reply him in the positive and instead, he told him that Celestamine was not regarded as a steroid.

He appealed to the Court of Appeal against all three charges.  The judgment was handed down on March 8, 2011 (CACV 374/2008).  The appeal against all charges was dismissed and the doctor remained guilty of professional misconduct.  What concerned me most is the second charge.  The charge was constructed in a way that a doctor was strictly liable to advise about the nature and side effects of steroids when prescribed.  In fact I have written on this subject several times before.  The sad news is that the Court of Appeal seemed to agree to this strict liability.  Let us have a look at the judgment.

Hon Tang Ag CJHC agreed that the Appellant could not be blamed for not informing the parents of any side-effect because none was expected from the dosage and duration of steroid given.  However, he also agreed to the judgment of the Medical Council that the Appellant failed to inform the parents of the nature of Celestamine that it contained steroid.  He quoted the judgment from the Medical Council:

Judgment of Medical Council: Para 14 and 15

For a medicine which has known potential side effects, patients should be advised of its nature so that they can make an informed choice as to whether to accept the medicine.  Steroid is such a medicine, as it has been shown to have some significant side effects.  There is general concern about the use of steroid, and patients should be given the proper advice before it is prescribed.  This is so even if the dosage prescribed does not have any side effect.  It must be borne in mind that patients are not medically trained and so are unlikely to understand technical medical terms.  While it is neither necessary nor helpful to advise patients of the chemical composition of the medicine, patients should be informed in laymen terms what the medicines are.

We bear in mind that Celestamine in the dosage prescribed has no significant side effects.  However, there was a danger that the patient might see other doctors and if the other doctors also prescribed steroid this might result in a dosage which would increase the risk of side effects…

Hon Tang Ag CJHC ruled that the above “is a finding which the Medical Council was entitled to make, and I can see no reason to disagree.” 

My observations

• No one seems to care anymore about the basic principle of innocent until proved otherwise.  Was the doctor below expected standard in the first place?  Had he breached the Code?
• The Code at 9.6: Where a drug is commonly known to have serious side effects, the doctor has the responsibility to properly explain the side effects to the patient before prescribing the drug.  Note that only “side effects” are mentioned here.  And in fact it should be “serious side effects”.
• However, in the charge, the doctor is expected to explain the nature and side effects of Celestamine.  Note that “the nature” was added and this became the crucial point for upholding the second charge in the appeal.  There was also another twist in the judgment: “For a medicine which has known potential side effects, patients should be advised of its nature…”  There was a change from the logical “explanation of side effects if there are serious side effects” in the Code to “advise of nature when there are known potential side effects”.  Can anyone think of any medication that does not have known potential side effects?
• I do not buy the reasons given in the Medical Council judgment.  I consider them reversal of the burden of proof.  Speculation that a patient would like to know doesn’t mean that failure to do so by the doctor equates professional misconduct.
• The long-shot argument that there might be prolonged use by other doctors if the nature of steroid was not explained was in fact adequately addressed by the strict requirement of drug labeling.
• An awkward situation is expected.  Now imagine that you are a patient.  Your doctor explains to you in a serious manner that he is going to give you a drug that contains steroid.  However, there is absolutely no side effect expected from the dosage and duration given.  My natural response is why he wastes time to tell me this nonsense?  Then I would suspect that he must be hiding something and he is luring me to give consent to something serious.  And then if I were a guy who follows the Medical Council logic, I would try to take all the other medications that the doctor gives me in excess dosage and prolonged duration than that prescribed, thinking that they should be safe as they are not specifically warned against like the case of steroids. 
• Finally, note the comment by the judge.  He just quoted the Medical Council judgment and said that the Medical Council was “entitled” to make such judgment.  He was right not to step too much into professional judgment.  If the medical professional wants to require the doctor to explain to patients each and every nature and side effect of each and every drug, just let it be. 

My advice 

No matter you find the above argument and observation absurd or logical, they should be for interest only.  They should not be given more weight than the article of food and romance by Dr. Eve LAI.  What you should remember absolutely is the fact that it is now established firmly that doctors need to explain to patients the nature and side effects of steroids or steroid containing medications when they are prescribed.  It is highly likely that consent from patient is needed for steroids.  Regarding how the side effects be explained when there is no side effect, I can give no advice.

(Source: HKMA News April 2011) 

Take it or "Beat it"

This month’s breaking news must be the announcement of the Financial Budget by the Financial Secretary.  Started as an every-year-routine, Mr. John Tsang did manage to make a big fuss out of it.  Claimed to be a product of extensive consultations (which included opinions sorting from a large number of primary school students), the Budget faced loud voices of opposition from all walks of life.  The most controversial item was the injection of $6000 into each MPF account with the objective of soothing citizens from economic hardship.  Mr. Tsang was very firm at the beginning: "The budget has struck the right balance.  I think the budget was not bad.  I will continue to explain [it to the public] and hope more people will come to understand it" (February 25).  "We can't take this part out and that part out.  It is impossible.  It's difficult." (February 26)  However, this “take-it-or-beat-it” attitude made a sharp u-turn after the threat of mass demonstration was foreseen to have of a good chance of materializing.  So the proposed Budget was updated to give $6000 to each HK Permanent ID Card holder.  On top of that, there would be 75% salary tax rebate capping at $6000.

What I would like to discuss is the “take-it-or-beat-it” attitude in relation to the Healthcare Voucher (HCV) Scheme.  Yes, HCV again.

On January 17, an official openly accused doctors of cheating and raiding government subsidy money in the HCV Scheme.  The HKMA objected firmly.  Up to the date of writing this editorial, there was no explanation or apology whatsoever.  I would interpret that as the official and the government showing the “I really mean it!” gesture.  This was partially confirmed when I had the luxury to meet an official unofficially one fine afternoon.  I suspected that he was the arrogant official who framed doctors opened but there was no way to confirm.  He proudly presented to us his plan of imposing more conditions on the use of HCVs by doctors such as the filling of more detailed coding on-line and the amount of co-payment (why co-payment?) by patients.  He again emphasized the objective of the HCV Scheme as the encouragement of preventive medicine and health checks.  However, he could not provide an answer for why physiotherapists were included as providers as they obviously did not provide any preventive measures to the elderly.  I was interrupted when I tried to talk about the grievance of general practitioners on the extra work on HCVs and the adverse comments we received.  What I perceived subjectively (I have to be careful and fair to say this) was the “take-it-or-beat-it” attitude.  So my option was either to join the scheme or not to.  The terms were clear and pre-set.  They would not be changed for you.

This meeting reminded me of the Financial Secretary and the Budget: “Take it or beat-it, or show me your power.  I would not hesitate to call your bluff.”  However, our government and officials are more careful than Mr. John Tsang.  They had tested the limits of doctors before with some open humiliations and harsh accusations.  Seemingly, no too drastic actions were met.  So they can proceed.  This is what the Chinese saying of “testing with a clay-pot by the thief”.  Well, they might be correct.  Doctors including myself do not like marching on the street.  And general practitioners are used to looking after ourselves in a submissive, non-united manner.

After going through the whole matter again in my pessimistic mode, I in fact have to thank the “take-it-or-beat-it” offer.  This is not the worst scenario, although it is bad enough to have your own patient sold to you and then any official can openly call you a cheater and a liar (maybe it is worse to be a cheater and a liar to the elderly).  The worse to come is this: “Sorry, you are not eligible to join our scheme.”  Or maybe when you have twisted your practices and hopefully not your consciousness to join the scheme, one fine day you are told: “Sorry, you will be kicked out of the scheme unless you do so and so.”

Maybe I am pathologically cynical and pessimistic, but those senior (or old) enough should have witnessed the growth of HMOs.  With unequal contract terms that the doctors had never taken part in the negotiation, HMOs got the market share.  Then the terms are constantly changing to the benefit of the organizations.  Can you remember how many years haven’t the consultation fees been raised by HMOs?  How many times do you think they have raised their charges against their clients?  So what?  Take it or beat it.

Again, I would like to end with some advice to myself.  Stay healthy, both physically and financially.  Do some exercise and don’t overeat, or over invest, or over spend.  Always allow myself the option of saying no to the take-it-or-beat-it offer.  I don’t need to decide on the difficult question of whether to encourage or disallow my sons or daughters to become a doctor, as I don’t have any son or daughter I know of.  Continue looking after myself.  But if the situation is too bad (I am still thinking whether being accused openly while I am taking some pain to endure the unfair contract terms bad enough), maybe I shall go out and get united with the mass.  Maybe at that time, I shall get back my patients without having them sold to me.  Or maybe I shall get back my $6000 overcharged by the government.

(Source: HKMA News March 2011)