新年進步

(Source: HKMA News January 2012)

Finally, investigation fee is not "rebate in disguise".

I would like to draw members’ attention to the recently issued Newsletter of the Medical Council (Issue No. 18, October 2011).  (We received it by mail.  If you have lost it, you can go to http://www.mchk.org.hk/newsletter18.pdf and have a look.)  On page 6, under the section of “Advice/Information for All Registered Medical Practitioners”, you would find an article entitled “Guidelines on Charging Fees for Laboratory Tests”.  It started by stating that: “On 27 April 2010, the Chairman of the Medical Council issued a letter to all registered medical practitioners drawing their attention to a disciplinary case of a doctor charging a patient excessive fees for tests performed by laboratories…  The Medical Council considers it appropriate to provide further guidance to doctors on charging of fees for laboratory tests.”

My first impression was that: “What’s the matter with the Medical Council?  Why does it take one and a half year to clarify a letter issued by the Chairman?  Who can remember a case nearly two years ago?”  However, upon reading the article, I realized that many of us, especially doctors in private practice, would remember this confusing, if not wrong, judgment concerning “rebate in disguise”.  And, in fact this low-profile, half-hidden article was our long-awaiting rebuttal of the again confusing, if not wrong, message from the Chairman of the Medical Council.

Maybe let me dig up the relevant documents so that facts speak for themselves.  In August 2009, a doctor was found guilty of misconduct for charging his patient excessively for laboratory tests.  However, the judgment indicated that a comparison was made between what the doctor charged the patient and what the laboratory charged the doctor.  It then concluded at para 17 that “A doctor shall not receive any rebate from diagnostic laboratories or similar organizations to whom he refers patients.  A doctor must be honest and clear in setting out the charges to patients.  The differences in charges indicate that the Defendant Doctor has a financial gain from referring the Patient for laboratory tests.  This is a rebate in disguise.”  (http://www.mchk.org.hk/docs/STW_20090828.pdf)

Many doctors found the judgment against normal practice.  It ignored the fact that doctors had actually provided service in performing laboratory tests and they were entitled to charge their patients.  The Editorial of the September 2009 issue of the HKMA News made a thorough analysis of the case (No More “Laboratory Tests”!  (http://cm-mc-articles.blogspot.hk/2009/09/no-more-laboratory-tests.html). It pointed out that the inquiry panel should try to prove that the doctor actually did overcharge the patient.  It should not jump to such artificial and wrong invention of “rebate in disguise” principle.  It also urged the Medical Council to look into the case and to clarify queries from practicing doctors who were then at risk from the judgment.

Astonishingly, the response was given by the Chairman herself.  She did not put up any discussion in the Council.  Instead, in April 2010, she sent a personal letter to all doctors expressing her personal views (http://www.mchk.org.hk/letter_from_chairman.pdf).  Among others, the letter stated that “Arising from this case, the Medical Council wishes to impress upon members of the profession that the doctor’s own fees for professional services should be clearly separated from the fees collected on behave of laboratories for investigations.  If the doctor charges fees for his own services in connection with the investigations to be performed by the laboratories, the charges should be clearly set out and explained to the patient.”  Unfortunately, this letter served to complicate matter.  What the Medical Council said to impress upon doctors (but in fact was only the personal opinion of the Chairman; and it was later clarified by the Medical Council) was exactly what the profession disagreed.

In response to this confusing letter, the Editorial of the May 2010 issue of the News entitled “Dangerous Precedents” clarified this matter. (http://cm-mc-articles.blogspot.hk/2010/06/dangerous-precedents.html)  It pointed out that the letter posted a strict liability on doctors to explain charges to patients irrespective whether patients asked for it or not.  This was more than that of the judgment of the case.  This was also more than that stated in the Code.

No action was taken by the Medical Council or the Chairman of the Medical Council.  So private doctors had to work under fear and under uncertainty.  To avoid being caught by the ambiguity of the judgment, we had to add disclaimers explaining that every charge on the receipt should be interpreted as including, and not limited to, consultation, handling, professional judgment and advice, rental..., and virtually everything in the world.

It was only after one and a half year that came this piece of Guidelines.  Among them, the following three points were most relevant:

• 2. The Code does not require a doctor to itemize his own professional charges in invoices/receipts….

• 3. Section 12.1 of the Code stipulates that “Consultation fees should be made known to patients on request.  In the course of investigation and treatment, all charges, to the doctors’ best knowledge, should be made known to patients on request before the provision of services…”

• 8. A doctor may charge fees for all professional services rendered by him…  For an investigation, the whole package of services rendered by a doctor to a patient should be described in the invoice/receipt as “investigation fee ( 檢驗費 )”, in order to avoid any misunderstanding that the fee is collected on behalf of the third party.

From the interpretation of an average doctor (that’s me) on the plain and natural meanings of the Guidelines, the following points arise:

• The article points out that the previous letter from the Chairman contains information that needs to be clarified.
• Interestingly, the letter from the Chairman can still be found in the website of the Medical Council.
• There is no strict requirement to set out the items of charges and to explain them to patients unless patients ask for them.
• A doctor can charge more than what the laboratory charges him for tests.  He just needs to write down the term “investigation fees” in the receipt (and only if he chooses to do or as requested by his patient) so as not to cause any confusion.  In fact doctors rarely collect fees on behalf of a third party, such a laboratory.  Rather it is a common practice of the legal profession only.

(Source: HKMA News December 2011)

「這些年，我這個醫委會委員 ……」

Readers must have come across many (and in fact too many) reports and comments on the “coming soon” applications by the Hospital Authority for limited registration for some “overseas doctors without full registration” to fill some service resident positions.  However, readers must remember the fact that there has not yet been any application received by the Medical Council on this subject matter.  As a member of the Medical Council, I have the duty to decide on whether allowing applications for limited registration according to the provisions in the Medical Registration Ordinance (MRO).  I have to judge carefully and clearly whether the details described in the application forms are true and whether the candidates fulfill the requirements spelt out in the MRO.

However, before the applications reach me, the applications seem to be discussed openly.  Apart from reasoning and logical arguments, there have been comments, criticisms, and even threats to the Medical Council.  Alarmingly, some of these comments, criticisms and threats came from the applicant!  More alarmingly, some of these comments, criticisms and threats came from high-ranked government officials!  I considered all these undesirable.  I waited and waited for any action or announcement from the Medical Council or some judicial bodies to call a halt to all these undue influences.  There seemed to be none.  I therefore analyzed the situation: I must realize that I was facing certain pressure and influences.  It was only upon realization of such pressure that I could assess its effect on my judgment.  After careful consideration, I reassured myself that I was still perfectly OK.  And then I wrote the following, and read it aloud to the Chief Executive and some officials of the Hospital Authority in a meeting:

一個醫委會委員在壓力下的獨白：

近日就醫管局招聘海外醫生，申請「有限度註冊」一事，城中鬧得沸沸揚揚，各位各抒己見。其實，「有限度註冊」的審批，早有法定程序，就是由獨立法定組織「香港醫務委員會」，按《醫生註冊條例》，就每一申請個案作詳細討論及審批。

作為醫委員會委員，應該廣聽及廣納各方面意見，再理性分析，並依法審理。不過，在這次事件中，面對近日各界人仕，包括高官及位高權重人仕的指導性、指示性、甚至指令性及指責性言論，我感受到頗大的壓力。所以我覺得有責任向業界及公眾交待事件。

首先，我要指出這次事件的一些特點：

1. 我是醫委會委員，對海外醫生循「有限度註冊」途徑來港執業持開放態度。而且，審批這些申請根本是每個月的例行工作之一。
2. 我並不是「聯席香港醫療水平關注組」成員。
3. 根據醫管局對外言論，局方並不是要求重新立法，亦不是提出特別情況作任何特別處理的要求。而是準備以現存法例，主要是 「醫生註冊條例」中第十四條條文，為準備僱用的海外醫生申請「有限度註冊」。
4. 正因為是按現存法例，循正常途徑申請，醫委會便是唯一法定組織，有權力亦有責任，根據法例條文，審理申請個案的細節，決定通過與否。
5. 醫管局根本未有作任何申請，但卻就事件展開宣傳攻勢，而且愈演愈烈，發展至有聲音指示醫委會應該怎樣處理這些還未作出的申請，亦有指責醫生及醫委會的言論，甚至是威嚇要廢除法例賦予醫委會的權力與功能。 
6. 作為醫委會委員，面對這些言論，我感受到頗大壓力。而我亦意會到，這是一個頗嚴重的情況。因為審批申請並不簡單，須要不受任何影響下，根據法例中細節，判決申請機構、部門、海外醫生履歷、條件、僱用合約等等，是否符合法例要求。
7. 法定組織能在不受影響下依法處理申請很重要。例如之前有官員以個人名片代替填寫申請外傭入境申請表，便引起公眾嘩然。近日律政司司長亦叫停外界就外傭申請居港權官司的評論，以免影響法庭判定的獨立性。
8. 我仔細感受這些壓力，我仔細了解，仔細分析，清楚知道我在這些壓力下，仍然可以不偏不倚，按法例去審批每一項申請。這可能和我是私人執業及曾受法律學士及碩士訓練有關。
9. 不過我不知道，亦不能評估其他委員有否感受到壓力，知否自己正在壓力影響中，及會否受壓力的影響。 

以上是我的獨白，我相信是我的責任向大家說明。雖然，引用＜這些年，我們一起追的女孩＞ 語錄：「人生有很多事本來就是徒勞無功的。」～～ 沈佳宜

「左手申請只是輔助，因為右手要搞宣傳。」(「櫻木花道說的好，左手只是輔助，因為右手要拿滑鼠。」～～ 柯景騰在電影中『打手槍』時的對白。)

(Source: HKMA News November 2011)

Azalea and Election

In the old days, when I was a medical student, I was told during my Students’ Union Orientation Camp that there were many azaleas (杜鵑) around the Main Campus.  These azaleas were also known as “panic flowers”.  (“Panic flowers” is my translation; actually they were called 騰雞花.  The term 騰雞 was quite popular at that time.)  This was because azaleas bloomed around March and April, and they served as a signal for the rush to study for the final exams.  However, I was then told in the Medical Orientation Camp that this signal did not apply for medical students.  The unique saying for medical students was that we needed to study and to prepare for the exams when there was grass around Sassoon Road.  Literally, this meant that we had to work hard around the year.

These stories suddenly came to my mind when I saw a young lady wearing a ribbon wave to me while I was driving down Old Peak Road from the Canossa Hospital.  She was standing in the middle of a pedestrian refuge, waving vigorously to every driver that passed by.  The next day, early in the morning, there was another young man standing in the same site waving to me and other drivers alike.  So these waving candidates and the banners reminded me that it was time for elections.  They were the azaleas in the Main Campus.

Actually those are the candidates for the coming District Council Election.  The polling will be held on 6 November 2011 (Sunday).  Hong Kong is divided into 412 District Council Constituency Areas under 18 Districts.  Together with the 102 appointed members and 27 ex-officio members, there will be a total of 541 members in all 18 District Councils.  The District Council Election 2011 has been regarded as a “super election”, as it is significantly related to the Legislative Council Election 2012 and also the selection of members of the Election Committee for electing the Chief Executive in 2012.  

The Hong Kong Chief Executive Election 2012 will be held on 25 March 2012.  The Chief Executive will be elected by a 1200-member Election Committee.  For the medical functional constituency, there are 30 seats out of the total 1200.  And these 30 representatives will be elected by doctors and dentists.  The date for voting for the Chief Executive is not of so much concern to most of us.  However, if you would like to be one of the lucky 30, you need to remember that the nomination period for the non-District Councils subsectors of the 2011 Election Committee Subsector Elections will run from November 8 until November 15.  For most of us, all we need to remember is the polling date, which is December 11. 

Another more important date to remember is December 1.  This is the deadline for returning the ballot paper for the yearly Medical Council Election.  We need to cast our vote to elect three Members to fill the three vacancies in 2012.  Information of the candidates and the ballot papers will be sent out to all registered doctors on October 28 (a few days after you receive the News).  We need to return the ballot papers by post before December 1.

Distracted by the “waving azaleas” on the pedestrian refuge and all those thoughts about elections, I still needed to concentrate on driving.  I doubted very much the use and the meaning of such waving exercise.  Where were the candidates before the blooming of the azaleas?  Had they ever been active in district affairs?  Where would they be if they were elected?  Could I stop the car and try to discuss the election platform with the candidates?  Would their actions endanger drivers and pedestrians?  Would people just vote for the candidates because they saw them waving hands on one fine day?

I am not sure whether such waving practices will help, since they seem to be routines in elections.  However, as doctors, we have been trained to look for the grass against the azaleas.

(Source: HKMA News October 2011) 

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)