Do No Harm......

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

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

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

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

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

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

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

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

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

 
(Source: HKMA News Aug 2018)

From the Editor

(Source: HKMA News July 2018) 

In Control

 

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

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

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

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

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

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

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

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

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

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

 

(Source: HKMA News June 2018)

Preliminary Investigation Committee PIC

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

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

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

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

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

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

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

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

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

_____________________

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

 

 [ii] Comparison Results:

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

 [iii]

 

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

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

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

"The statutory scheme

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

…...

14. My conclusions are as follows.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Source: HKMA News May 2018)